REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.674 of 2006

State of U.P.              …Appellant

Versus

Naresh & Ors.          …Respondents

J U D G M E N T

Dr. B.S. CHAUHAN, J.

1. This appeal has been preferred against the judgment and order  

dated 19.5.2004 passed by the High Court of Judicature at Allahabad  

in  Criminal  Appeal  No.2866/1980,  acquitting  the  respondents  by  

reversing  the  judgment  and  order  dated  9.12.1980,  passed  by  the  

Sessions Judge in Sessions Trial Nos.181 and 182 of 1980, convicting  

the said respondents under sections 302/34, 307/34 and 379/34 of the  

Indian Penal Code, 1860 (hereinafter called the `IPC’) and sentencing  

them under  the  first  count  to  life  imprisonment,  under  the  second

count to rigorous imprisonment for 5 years and under the third count  

to  rigorous  imprisonment  for  2  years.   However,  all  the  sentences  

were directed to run concurrently.

2. Facts and circumstances giving rise to this appeal are that on  

16.10.1979, in the morning Naresh,  respondent  no.1 herein,  started  

digging the  (Chak Road)  to  create  a passage from the field  of  the  

informant Subedar (PW.1).  He was stopped by Balak Ram (PW.5).  

Naresh, respondent no.1, not only abused Balak Ram (PW.5), but also  

assaulted  him  and  threatened  him  that  he  would  face  dire  

consequences.   With  regard to this,  Balak Ram (PW.5)  lodged the  

complaint of the incident at about 9.30 a.m. in Police Station, Kampil,  

District  Farukhabad.   Balak  Ram (PW.5)  was  accompanied  to  the  

police station by the informant Subedar (PW.1) and their uncle Sri  

Ram (deceased).  Balak Ram (PW.5) and Sri Ram (deceased)  had a  

rifle and a gun with them.   

3. After lodging the complaint in the police station, Kampil, one  

of  them,  went  to  the  market  to  make  some  purchases  and,  

subsequently,  they  returned  to  their  village  in  the  evening.  While  

coming back to their village Karanpur, from Kampil, at about 5 p.m.  

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on Kampil - Aliganj Road, as soon as they approached the fields of  

Gajraj  and  Ganga  Ram;  they  found the  four  accused  (respondents  

herein) emerging out from the bushes armed with gun and country  

made pistols.  They hurled abuse at them and also opened fire.  Sri  

Ram and Balak Ram (PW.5) received gun shot injuries. Sri Ram died  

on the spot, however, Subedar (PW.1) escaped unhurt.  After hearing  

a  distress  cry,  some  persons  working  in  the  nearby  fields  rushed  

towards  the  place  of  occurrence.   The  accused  ran  away from the  

place of occurrence snatching the gun, rifle and ammunitions from the  

victims.   

4. After the arrival of the family members of the victims and some  

villagers  at  the  place   of  occurrence,  Subedar  (PW.1)  went  to  the  

police station in Kampil, at a distance of 6 miles from the place of  

occurrence,  and  lodged  the  First  Information  Report  (hereinafter  

called the “FIR”) at 9.30 p.m. naming all the accused.  Injured Balak  

Ram (PW.5)  was  sent  for  a  medical  examination  at  Public  Health  

Centre, Kayamganj which was at a distance of 20 k.m from the place  

of occurrence.  He was examined on the same day by Dr. R.C. Gupta  

(PW.3) at 10.30 p.m.  The Investigating Officer reached the place of  

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occurrence  at  10.15  p.m.  on  the  same  night,  however,  the  inquest  

could not be prepared at night due to inadequate light.

5. Ultimately, inquest proceedings could be started at 6.30 a.m. on  

17.10.1979.  The body of Sri Ram (deceased) was sealed and handed  

over to Sughar Singh, Constable (PW.9) for taking to the mortuary for  

post-mortem at Fatehgarh.  The I.O. prepared the site plan and started  

investigation.  As none of the accused could be traced, proceedings  

under  Sections  82-83  of  the  Code  of  Criminal  Procedure,  1973  

(hereinafter called “Cr.P.C.”) were initiated on 21.10.1979.  For that  

purpose,  the  Magistrate  issued  notices  on  25.10.1979.   In  view  

thereof, two accused, namely, Naresh and Shyam Singh surrendered  

on  25.10.1979 in the court of the Judicial Magistrate.  The remaining  

two accused, namely, Bharat and Jagpal surrendered on 29.10.1979.   

6. After  completing  the  investigation,  a  chargesheet  was  filed  

against all  the four accused.  They denied their involvement in the  

crime and claimed trial.    In order to establish its case before the trial  

Court,  the  prosecution  examined  11  witnesses  including  Subedar  

(PW.1), informant and Balak Ram (PW.5), injured.  After concluding  

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the trial, the trial Court convicted and sentenced all the four accused  

as mentioned hereinabove.   

7. Being  aggrieved,  all  the  four  convicts  preferred  Criminal  

Appeal No.2866/1980, before the High Court which has been allowed  

vide judgment and order dated 19.5.2004 (impugned) and all the four  

convicts stood acquitted.  Hence, this appeal.

8. During the pendency of this appeal before this Court, Bharat,  

one of the accused died and his name stood deleted from the array of  

parties vide order of this Court dated 5.5.2006.  Thus, we have to deal  

with three accused, namely, Naresh, Jagpal and Shyam Singh.

9. Shri R.K. Gupta, learned counsel appearing for the appellant-

State has submitted that the High Court has erred in reversing the well  

reasoned judgment of the trial court giving unwarranted attention to  

minor contradictions on trivial matters and taking into consideration  

non-existent facts.  The High Court has held that the FIR was ante-

timed  and  ante-dated  without  giving  any  reason  whatsoever.   The  

High Court  held that  the FIR was subject  to doubt,  though such a  

finding does not get any support from any material on record.  The  

FIR has been lodged most promptly considering the distance between  

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the place of occurrence and the police station.  Balak Ram (PW.5) -  

injured witness had been examined by Dr. R.C. Gupta (PW.3) within  

a few hours of the incident.  Therefore, the finding that the FIR was  

ante-timed and ante-dated is erroneous and contrary to the documents  

on record.  The High Court without giving any cogent reason held that  

testimony of Balak Ram (PW.5) who suffered gun shot injuries, was  

not worth believing.  Such a view is contrary to the consistent and  

persistent view taken by this Court time and again that the presence of  

injured witness cannot be doubted and his version of events can, even  

in exceptional circumstances,  be relied upon with care and caution.  

The High Court reversed the trial court’s judgment also on the ground  

that  not  a  single  independent  witness  has  been  examined  by  the  

prosecution.  Such a finding has been recorded without considering  

the  fact  that  incident  occurred  in  the  evening  at  a  considerable  

distance from the village on the road and some persons had arrived  

after  hearing  the  hue  and cry  by  Balak  Ram (PW.5)  and  Subedar  

(PW.1). By that time, the accused had run away, snatching the arms of  

the victims.  In view thereof, the appeal deserves to be allowed and  

the judgment and order of the High Court is liable to be set aside.

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10. On the contrary, Shri Manoj Prasad, learned counsel appearing  

for the respondents, has vehemently opposed the appeal contending  

that the incident occurred three decades ago. The respondents have  

been acquitted by the High Court after considering all the material on  

record.  In  respect  of  the  incident  that  occurred on  the  morning  of  

16.10.1979, Balak Ram (PW.5) lodged the complaint on the basis of  

which NCR was recorded,  wherein only Naresh,  accused had been  

named.  The not naming of the other accused is a good ground for  

rejecting  the  prosecution  case  in  its  entirety.  The  finding  of  fact  

recorded by the High Court cannot be said to be perverse warranting  

interference by this Court.  No recovery of  arms and ammunitions  

had  been  made  from the  respondents/accused.   The  rifle  and  gun  

which were allegedly snatched from the victims had been recovered  

after a long time from the dacoits killed in an encounter in District  

Etah.  The High Court has rightly disbelieved Balak Ram (PW.5) on  

the basis of material contradictions in his deposition.   This Court has  

laid  down  definite  parameters  for  interference  with  the  order  of  

acquittal and this case does not fall within those parameters.  Thus,  

there is no cogent reason for this Court to interfere with the same.  

Prosecution suppressed the true genesis of the incident and enroped  

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the respondents due to pre-existing enmity. The prosecution failed to  

prove  its  case  beyond  reasonable  doubt.  Thus,  no  interference  is  

warranted, the appeal lacks merit and is liable to be dismissed.

11. We  have  considered  the  rival  submissions  made  by  learned  

counsel for the parties and perused the record.

12. The  admitted  facts  of  the  case  remained  that  the  incident  

occurred on the morning of 16.10.1979 in respect of which the NCR  

was recorded by the police station in  Kampil, naming Naresh as one  

of the accused.  The FIR, in respect of the incident that occurred on  

the same day in the evening, was lodged within 3-1/2 hours of the  

time of  incident  at  police  station,  Kampil  at  a  distance  of  about 6  

miles  from the  place  of  occurrence;  the  I.O.  reached  the  place  of  

occurrence  at  10.15  p.m.   Balak  Ram  (PW.5)  injured,  had  been  

examined in the Public Health Centre, Kayamganj at 10.30 p.m. on  

the same day by Dr. R.C. Gupta (PW.3) at a distance of 20 k.m. from  

the place of occurrence.

13. Dr.  R.C.  Gupta  (PW.3)  found  the  following  injuries  on  the  

person of Balak Ram (PW.5):

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(i) Two abrasions in a area of 1 cm x ¼ cm over outer side of right  

forearm, lower part.  Scab not formed.

(ii) Gun shot wound of entry 4 cm x 2 cm x through and through over  

inner  aspect  of  right  thigh middle  part.   Margins are  irregular  and  

inverted.   Blackening  and  tattooing  around  the  wound  absent.  

Direction is down and lateral.  Oozing of fresh blood from the wound  

present. Advised X-ray.

(iii) Guns shot wound of exit 17 cm x 8 cm x through and through  

over outer side of right thigh 5 cm above the right knee joint.  Margins  

are irregular and everted.  Blackening and tattooing absent.  Oozing of  

fresh blood present.  Advised X-ray.

Injury No.1 is caused by friction.  Injury Nos.2 and 3 are caused  

by projectile firearm.  Injury No.1 is simple in nature.  Injury nos.2  

and  3  are  kept  under  observation.   Advised  X-ray  right  thigh.  

Duration fresh.

Dr.  Anil  Kumar  Dubey  (PW.2)  conducted  the  post-mortem  

examination  on  the  body  of  Sri  Ram  (deceased)  and  found  the  

following ante-mortem external injury on his corpse:-

(i) Circular gun shot wound of entry 1” in diameter and chest cavity  

deep situated on the right side of the back of the chest, 3” below the  

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lower angle of the right scapula and 3” away from the mid line in the  

direction of 3 O’ clock.  The margins of the wound were inverted and  

charred.

          On internal examination of the corpse of Sri Ram, Dr. Dubey  

found 6th, 7th and 8th ribs broken under the external injury said above.  

Beneath, he found the pleura and the right lung lacerated.  All the four  

chambers of the heart were empty.  He found 2 lbs of free blood in  

thoracic cavity.  The upper lobe of the liver was lacerated.  Right side  

of the diaphragm also was lacerated.  The stomach was empty.  The  

intestines had faecal  matter and gas.   In the thorax Dr. Dubey had  

found a piece of wadding and 20 small shots respectively Exc.1 and 2.  

14. The trial Court after considering the evidence on record came to  

the conclusion that the FIR had been lodged most promptly at about  

9.30 p.m. on the same date naming all the four accused.  The High  

Court doubted the FIR and labeled the same to be ante-timed or ante-

dated.  Deposition of Constable Sughar Singh (PW.9) before the court  

revealed  that  the  dead body  had been handed  over  to  him for  the  

purpose  of  post-mortem  on  17.10.1979  at  8  a.m.  after  having  

panchnama  and  sealing  thereof,  he  reached  Fatehgarh  Police  line  

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along with Constable Ram Chand in a Tonga and got the entry made  

in  the  Rojnamcha.   Post-mortem was  conducted  on  18-10-1979  at  

about noon on his identification of the dead body.  The dead body  

remained in sealed condition throughout and nobody had any occasion  

to  touch  it.    Record  further  reveals  that  Constable  Sughar  Singh  

(PW.9) was not cross-examined by any of the respondents accused  

nor any such question had been put to Dr. A.K. Dubey (PW.2) who  

had  conducted  the  post-mortem  in  this  regard.   According  to  Dr.  

Dubey, Sri Ram could have died on 16.10.1979 at about 5-7 p.m.  He  

has not been cross-examined as to under what circumstances the post-

mortem could not have been conducted at an earlier point of time.

15. The  High Court  has  believed  the  theory  put  forward  by  the  

defence  that  the  guns  looted  from the  victims  had been  recovered  

from the dacoits who were killed in an encounter on 14-15 November,  

1979 in Etah District.  Therefore, there had been some manipulation  

in the prosecution’s case.  None of the respondents accused had taken  

this defence in their statement under 313 Cr.P.C.  Naresh, respondent  

no.1 had stated that he was not aware of the same.  When a specific  

question was put to him he replied that he had also heard that in an  

encounter 6 dacoits had been killed in District Etah and some arms  

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and ammunitions had been recovered from them.  He had not stated  

anywhere  that  the  said  arms  and ammunitions  had been looted by  

those dacoits or had been recovered from them.  This suggestion was  

also put to Balak Ram (PW.5) when examined on 30.8.1980 and he  

has stated that he had not been aware that their rifle and gun had been  

recovered from the dacoits killed in an encounter in District Etah.  In  

fact,  Inspector Charanpal Singh (PW.11) had deposed first time on  

11.11.1980 that 6 dacoits had been killed in an encounter in District  

Etah and some arms and ammunitions were recovered from them and  

out of the said recovered arms, namely, rifle – Ex.7, gun – Ex.8 and  

some ammunitions – Ex.9 were produced in the court.

16. The High Court  has  doubted  the  case  of  the  prosecution  for  

non-recovery of the arms from the respondents accused.  The High  

Court failed to appreciate that as the incident occurred on 16.10.1979  

and none of these accused were traceable, the Investigating Officer  

filed an application for initiating proceedings under Sections 82-83  

Cr.P.C.  on  21.10.1979.   Proceedings  of  attachment  of  immovable  

property  were  drawn on 25.10.1979.   In  consequence  thereof,  two  

accused surrendered in the court on 25.10.1979 and the remaining two  

surrendered on 29.10.1979.  Meanwhile, S.I. Brijendra Singh (PW.7),  

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the  I.O.  stood  transferred  to  another  police  station  and  the  

investigation could not be carried out smoothly.  Thus, such a ground  

would not be sufficient to discredit the prosecution case.

17. The High Court has given undue weightage to the suggestion  

made by defence that Surjan Singh, Inspector of U.P. Police, brother  

of Balak Ram (PW.5) had been an instrument to the manipulation of  

the  record,  though such a  suggestion was denied by  S.I.  Brijendra  

Singh (PW.7), the I.O., stating that Surjan Singh did not meet him on  

17.10.1979, but he had met him at a later stage but he could not give  

the exact date of meeting.  The High Court had unnecessarily doubted  

his statement without realising that his statement had been recorded  

in the court on 30.8.1980 after about 11 months.  The High Court has  

given undue importance to the minor contradictions in the statement  

of Subedar (PW.1) and Balak Ram (PW.5) as one of them had stated  

that the I.O. reached the place of occurrence at 10.15 p.m. and another  

has stated that he reached about mid night.  The incident occurred in  

mid October 1979.  This is the time when the winter starts and in such  

a fact-situation no person is supposed to keep record of exact time  

particularly  in  a  rural  area.   Everybody  deposes  according  to  his  

estimate.  More so, the statement had been recorded  after a long lapse  

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of time.  Therefore, a margin of 1-1/2 hours remained merely a trivial  

issue.  The High Court had taken a very serious note of the statement  

of Balak Ram (PW.5) in respect of the first incident wherein he had  

stated  that  Naresh,  the  accused,  had  initially  abused  him and then  

beaten  him with  danda  but  in  the  FIR he  had  stated  that  accused  

Naresh had given blow with butt-end of the spade. There was minor  

contradiction  in  the  statements  of  Subedar  (PW.1)  and Balak  Ram  

(PW.5) in respect  of the  first  incident  of  the same date and minor  

variations  in  their  statements  which  persuaded  the  High  Court  to  

disbelieve the presence of Subedar (PW.1) in the morning incident.     

18. The trial Court had taken note of the first incident that occurred  

in the morning and considered the same in correct prospective, that in  

the morning incident Balak Ram (PW.5) got an injury on his arm as  

has been found by Dr. R.C. Gupta (PW.3) and not on the head.  The  

statement  made  by  Balak  Ram (PW.5)  may not  be  correct  in  this  

regard for the reason that he could not remember that he got the injury  

on his arm and not on the head.  This version is duly supported by the  

NCR shown by (Ex. Ka.6).  Had there been any concoction in the said  

NCR (Ex. Ka.6),  either with the police personnel at  Kampil Police  

Station or at the behest of Inspector Surjan Singh, brother of Balak  

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Ram (PW.5), then there could not have been any discrepancy in the  

contents thereof.  So far as this minor contradiction was concerned,  

Constable Shiv Nath Singh (PW.6) was not at all cross-examined in  

this  respect.  No suggestion was put  to  Constable  Shiv Nath Singh  

(PW.6), who was examined much later than Subedar (PW.1) in this  

regard.  In respect of the first incident S.I. Brijendra Singh (PW.7), the  

I.O., has stated that he had seen the pits made by Naresh, accused on  

the western side of the Chak Road in front of his house.  It had not  

been a suggestion of any person that the pits had been made by any  

person  from the  complainant  party.   Presence  of  the  pits  was  an  

important circumstance supporting the prosecution version so far as  

the morning incident was concerned and the High Court erred gravely  

not taking note of this specific finding by the trial Court.   

19.     The High Court had doubted the prosecution case that  if  in  

respect of the first incident NCR had been lodged in the morning, why  

had the complainant party stayed at Kampil for the whole day?  The  

trial Court had recorded a finding after scrutiny of the evidence that  

12 rowdy persons had been taken into  custody and that  the  police  

officers  of  that  police  station  remained  pre-occupied  with  that  

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particular  dispute and so not a single constable was available to come  

with the complainants.   

20. The High Court also fell in error that whilst reaching from the  

place  of  occurrence  to  the  police  station,  the  complainant  party  

covered the distance in one hour but while coming back in the evening  

they had taken a longer time.   The time gap was not so much that it  

could give rise to any kind of suspicion.  Such a trivial issue could not  

have been a ground for acquitting the accused.  More so, no question  

in this regard was put to either of the star witnesses, when they were  

cross-examined.  

21. The High Court has further found a material contradiction in  

the statements  of Subedar (PW.1) and Balak Ram (PW.5) and had  

made  this  one  of  the  grounds  for  the  acquittal  of  the  accused  

observing:

“To meet the situation Balak Ram claims that he  fell  unconscious  little  after  receipt  of  his  injury,  whereas Subedar Singh stated that he immediately  fell unconscious.  Therefore, it is not possible for  him to see and notice his assailants.  For the said  contradictions the testimony of this witness cannot  be given adequate weightage.”

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In the facts of this case, time gap could be only of few minutes,  

thus, it was not even worth taking note of by the High Court.  

22.     The High Court has doubted the prosecution version also on the  

ground  that  Subedar  (PW.1)  did  not  suffer  any  injury  in  the  said  

incident  without  appreciating  his  deposition  that  all  of  them were  

walking at some distance and he was about 7-8 steps behind Sri Ram  

(deceased) and Balak Ram (PW.5) and immediately after seeing the  

accused persons, he ran backward.  After taking 15-20 steps, he saw  

that persons working in the surrounding fields had started coming and  

then  he  stopped,  and  saw  the  accused  taking  away  the  arms  and  

ammunitions from Sri Ram (deceased) and Balak Ram (PW.5).   

23. The High Court has disbelieved Balak Ram (PW.5), who had  

suffered  the  gun shot  injuries.   His  evidence  could  not  have  been  

brushed aside by the High Court without assigning  cogent reasons.  

Mere contradictions on trivial matters could not render his deposition  

untrustworthy.     

The  evidence  of  an  injured  witness  must  be  given  due  

weightage  being  a  stamped  witness,  thus,  his  presence  cannot  be  

doubted.  His statement is generally considered to be very reliable and  

it is unlikely that he has spared the actual assailant in order to falsely  

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implicate someone else.  The testimony of an injured witness has its  

own relevancy and efficacy as he has sustained injuries at the time and  

place of occurrence and this lends support to his testimony that he was  

present  during  the  occurrence.   Thus,  the  testimony  of  an  injured  

witness is accorded a special status in law.  The witness would not  

like  or  want  to  let  his  actual  assailant  go  unpunished  merely  to  

implicate a  third person falsely for  the commission  of the offence.  

Thus, the evidence of the injured witness should be relied upon unless  

there  are  grounds for  the  rejection  of  his  evidence on the basis  of  

major contradictions and discrepancies therein. [Vide:  Jarnail Singh  

v. State of Punjab, (2009) 9 SCC 719; Balraje @ Trimbak v. State  

of Maharashtra, (2010) 6 SCC 673; and  Abdul Sayed v. State of  

Madhya Pradesh, (2010) 10 SCC 259].    

24.     The High Court disbelieved both the witnesses Subedar (PW.1)  

and Balak Ram (PW.5) as being closely related to the deceased and  

for not examining any independent witnesses.  In a case like this, it  

may  be  difficult  for  the  prosecution  to  procure  an  independent  

witness, wherein the accused had killed one person at the spot and  

seriously injured the other.  The independent witness may not muster  

the courage to come forward and depose against such accused. A mere  

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relationship  cannot  be  a  factor  to  affect  credibility  of  a  witness.  

Evidence of a witness cannot be discarded solely on the ground of his  

relationship  with  the  victim  of  the  offence.  The  plea  relating  to  

relatives’  evidence  remains  without  any  substance  in  case  the  

evidence has credence and it can be relied upon. In such a case the  

defence has to lay foundation if plea of false implication is made and  

the Court has to analyse the evidence of related witnesses carefully to  

find  out  whether  it  is  cogent  and  credible.  [Vide  Jarnail  Singh  

(supra), Vishnu & Ors. v. State of Rajasthan, (2009) 10 SCC 477;  

and Balraje @ Trimbak (supra)].  

  25. In all criminal cases, normal discrepancies are bound to occur  

in the depositions of witnesses due to normal errors of observation,  

namely,  errors  of  memory  due  to  lapse  of  time  or  due  to  mental  

disposition such as shock and horror at the time of occurrence.  Where  

the  omissions  amount  to  a  contradiction,  creating  a  serious  doubt  

about the truthfulness of the witness and other witnesses also make  

material  improvement  while  deposing  in  the  court,  such  evidence  

cannot  be  safe  to  rely  upon.   However,  minor  contradictions,  

inconsistencies,  embellishments  or  improvements  on  trivial  matters  

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which do not affect the core of the prosecution case, should not be  

made a ground on which the evidence can be rejected in its entirety.  

The court has to form its opinion about the credibility of the witness  

and record a finding as to whether his deposition inspires confidence.  

“Exaggerations per se do not render the evidence brittle. But it can be  

one of the factors to test credibility of the prosecution version, when  

the  entire  evidence  is  put  in  a  crucible  for  being  tested  on  the  

touchstone of credibility.” Therefore, mere marginal variations in the  

statements  of  a  witness  cannot  be  dubbed as  improvements  as  the  

same  may  be  elaborations  of  the  statement  made  by  the  witness  

earlier.   The omissions  which amount to contradictions  in material  

particulars i.e. go to the root of the case/materially affect the trial or  

core of  the prosecution’s  case,  render  the testimony of  the witness  

liable to be discredited. [Vide:  State Represented by Inspector of  

Police  v.  Saravanan & Anr.,  AIR 2009  SC 152;  Arumugam v.  

State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar  

Pradesh, (2009) 11 SCC 334; and Dr. Sunil Kumar Sambhudayal  

Gupta & Ors. v. State of Maharashtra, JT 2010 (12) SC 287].

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26. The High Court has also fallen into error in giving significance  

to a trivial issue, namely, that in respect of the morning incident all  

the accused had not been named in the complaint/NCR.     

       It is settled legal proposition that FIR is not an encyclopedia of  

the entire case. It may not and need not contain all the details. Naming  

of  the  accused  therein  may  be  important  but  not  naming  of  the  

accused in FIR may not be a ground to doubt the contents thereof in  

case the statement of the witness is found to be trustworthy.  The court  

has to determine after examining the entire factual scenario whether a  

person has participated in the crime or has falsely been implicated.  

The informant fully acquainted with the facts may lack necessary skill  

or ability to reproduce details of the entire incident without anything  

missing from this.  Some people may miss even the most important  

details in narration. Therefore, in case the informant fails to name a  

particular accused in the FIR, this ground alone cannot tilt the balance  

of  the  case  in  favour  of  the  accused.  [Vide:  Rohtash  v.  State  of  

Rajasthan, (2006) 12 SCC 64; and Ranjit Singh & Ors. v. State of  

Madhya Pradesh, JT 2010 12 SC 167].

27. We  are  fully  aware  of  the  fact  that  we  are  entertaining  the  

appeal against the order of acquittal.  Thus, the Court has to scrutinize  

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the facts of the case cautiously and  knowing the parameters fixed by  

this Court in this regard.  

Every accused is presumed to be innocent  unless his guilt  is  

proved.  The presumption of innocence is a human right subject to the  

statutory exceptions.  The said principle forms the basis of criminal  

jurisprudence in India. The law in this regard is well settled that while  

dealing with a judgment of acquittal, an appellate court must consider  

the entire evidence on record so as to arrive at a finding as to whether  

the views of the trial court were perverse or otherwise unsustainable.  

An appellate court must also consider whether the court  below has  

placed  the  burden  of  proof  incorrectly  or  failed  to  take  into  

consideration any admissible evidence or had taken into consideration  

evidence brought on record contrary to law?  In exceptional cases,  

whether  there  are  compelling  circumstances  and  the  judgment  in  

appeal is found to be perverse, the appellate court can interfere with  

the  order  of  acquittal.   So,  in  order  to  warrant  interference by the  

appellate court, a finding of fact recorded by the court below must be  

outweighed evidence or such finding if outrageously defies logic as to  

suffer from the vice of irrationality. [Vide: Babu v. State of Kerala,  

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(2010) 9 SCC 189; and  Dr. Sunil  Kumar Sambudayal Gupta &  

Ors. (supra)].

28. The instant case is required to be examined in the totality of the  

circumstances and in the light of the aforesaid legal propositions.  The  

Court  has  to  strike  a  balance  in  the  interest  of  all  the  parties  

concerned. Thus, there is an obligation on the court neither to give a  

long latitude to the prosecution, nor construe the law in favour of the  

accused. In view of the aforesaid analysis of facts and evidence on  

record, we reach the inescapable conclusion that the High Court has  

gravely erred in discarding the evidence of Subedar (PW.1) and Balak  

Ram (P.W.5) as a result of merely being relatives of the deceased, Sri  

Ram.  The  High  Court  further  fell  into  error  in  not  giving  due  

weightage to the deposition of Balak Ram (P.W.5), a stamped witness,  

who had suffered gun shot injuries. The High Court made too much of  

insignificant discrepancies, which were made the basis for acquittal.  

Thus, we are of the considered opinion that the findings recorded by  

the High Court are perverse and cannot be sustained in the eyes of  

law.  

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29. Thus, the appeal is, accordingly, allowed. Judgment and order  

dated 19.5.2004 passed by the High Court is hereby set aside and the  

judgment  and  order  of  the  trial  court  dated  9.12.1980  passed  in  

Sessions Trial No. 181 and 182 of 1980 convicting the respondents  

under Sections 302/34, 307/34 and 379/37 of IPC and the sentences so  

imposed, is restored. As the respondents have been acquitted by the  

High  Court,  the  copy  of  the  order  be  sent  to  the  Chief  Judicial  

Magistrate, Farukhabad, to take the respondents into custody and send  

them to jail to serve the unserved part of the sentence.    

           .……………………..J.             (P. SATHASIVAM)

                                .……………………..J.              (Dr. B.S. CHAUHAN)

New Delhi, March  8, 2011

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