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REPORTABLE  

IN THE SUPREME COURT OF INDIA  

CRIMINAL APPELLATE JURISDICTION  

CRIMINAL APPEAL NO. 1856 OF 2013  

STATE OF UTTARAKHAND       ...  APPELLANT  

VERSUS  

DARSHAN SINGH           ... RESPONDENT  

WITH  

CRIMINAL APPEAL NO. 1857 OF 2013  

J U D G M E N T    

K.M. JOSEPH, J.  

1. Since these appeals involve the same impugned judgment  

of the High Court acquitting the respondents of offences  

under Section 147, 148, 149 and 302 of the Indian Penal Code,  

1860 (hereinafter referred to as ‘the IPC’, for short), we  

deem it fit to dispose of the same by a common judgment.

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PROSECUTION CASE IN BRIEF   

2. The complaint in this case, which led to the trial, was  

lodged by one Swarn Singh-PW1. The complaint in brief is  

as follows:  

On 22.08.1992, when he, along with his  

father, mother and maternal uncle, were going  

on a tractor from Nanakmatta to their village  

and his father was driving the tractor, when  

the tractor reached one kilometre from their  

house, they found that a bullock cart has  

blocked their passage. The tractor stopped  

near the bullock cart. One of the  

accused-Pahalwan Singh appeared. The other  

accused, along with him, were hiding near a  

tree. He was having a sword in his hand.  

Resham Singh, who is the third respondent in  

Criminal Appeal No. 1857 of 2013, had a  

country-made pistol in his hands. Daleep  

Singh had a ballam (a sharp edged weapon), his  

son Jagir Singh carried a country-made

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pistol. Darshan Singh also had a country-made  

pistol. Veer Singh was having a sharp-edged  

weapon (campa). They started hurling abuses  

on the family of the complainant. Resham  

Singh fired with his country-made pistol.  

Pahalwan Singh and Darshan Singh fired with  

their country-made pistol, and Veer Singh  

Singh with his campa, inflicted blows on the  

complainant’s father-Singhara Singh. He fell  

from the tractor and died. On raising alarm,  

all the accused fled away on the bullock cart.  

The complainant, his father and maternal  

uncle did not dare to fight the assailants.   

3. The First Information Report (FIR) came to be lodged  

under Sections 147, 148, 149 and 302 of the IPC. The Trial  

Court framed charges under Sections 147, 148, 302 read with  

149 of the IPC. Separate charges were also framed under  

Section 25 of the Arms Act,1959 (hereinafter referred to  

as ‘the Arms Act’, for short). PWs 1 to 6 were examined from

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the side of the prosecution. Statements of the accused were  

taken under Section 313 of the Code of Criminal Procedure,  

1973 (hereinafter referred to as ‘the Cr.PC.’, for short).    

4. The Trial Court convicted Pahalwan Singh, Resham  

Singh, Daleep Singh, Veer Singh and Darshan Singh for  

offences under Sections 302 read with 148 and 149 of the  

IPC. Resham Singh and Darshan Singh were acquitted of the  

charge under Section 25 of the Arms Act.  

5. The High Court, by the impugned order, has acquitted  

the accused. The judgment reveals that the following  

aspects weighed with the High Court in its decision to  

acquit the accused:  

i. There were material variations in the evidence of                

PWs 1 and 2.   

ii. PW2 was not a non-partisan witness. He is distantly  

related to the informant.  

iii. PW4 is none other than maternal uncle referred to by  

the complainant as having travelled along with him on  

the tractor. He has turned hostile and has not  

supported the prosecution version.

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iv. The case of the prosecution that after the firing and  

the inflicting the wound injuries on the deceased, the  

accused fled away in the bullock cart, could not be  

believed.  

v. PW1 deposed that the lights of the tractor were on. PW2,  

on the other hand, deposed that the bulb of the tractor  

was off.  

vi. Injury no.4 was a gunshot wound on the left side of the  

back of the deceased.  

vii. According to prosecution evidence, accused blocked the  

way of the tractor and accused fired while standing in  

front of the tractor. There was material inconsistency  

between ocular and medical evidence in this regard.  

viii. It is noticed by the High Court that PW3-Doctor, in  

his evidence, does not support the case of the  

prosecution.  

ix. The High Court noticed, according to the prosecution  

evidence, that the deceased was driving the tractor and  

his close relatives, viz., his wife, the complainant,  

who has been examined as PW1, and maternal uncle, were

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travelling along with the accused. However, none of the  

relatives, who were sitting on the tractor and on the  

mudguard, have suffered any injuries. This also  

persuaded the High Court to acquit the accused.  

6. We have heard the learned counsel appearing for the  

State/appellant and the learned counsel appearing for the  

accused/respondents, in both the appeals.   

7. The learned counsel for the State has pointed out that  

respondent no. 2, in Criminal Appeal No. 1857 of 2013, has  

passed away and we have also taken note of the same in our  

order dated 28.08.2019 that the appeal stands abated as  

against him.   

8. The learned counsel for the State would contend as  

follows:  

(i) There was no actual inconsistency in the ocular  

evidence of PW1 and medical evidence. He has maintained  

that accused-Resham Singh has fired shot which hit the  

deceased at the back.

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(ii) Merely on account of minor contradictions in the  

statement of PW1 and medical evidence depicting the  

injuries, High Court ought not have interfered in the  

matter, having regard to the nature of the injuries  

inflicted, the recovery of the weapons and the  

conclusion in the FSL Report, which fully corroborates  

the case of the prosecution.  

(iii) PW1-son of the deceased was only 17 years of age at  

the time of the incident. The court may bear in mind  

that this is a case where accused ambushed them and  

carried deadly weapons hurling threats. Meticulous  

narrative of the incident, in such circumstances, may  

not be insisted upon. He relied upon judgment of this  

Court in Gosu Jayrami Reddy and another v. State of  

Andhra Pradesh1 and Mangoo v. State of Madhya Pradesh2.  

(iv) At the place of the incident., an empty cartridge of  

12-bore pistol was recovered by the Investigating  

Officer. A recovery was effected from the accused on  

 1 (2011) 11 SCC 766  2 AIR 1995 SC 959

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the basis of statement by the accused including the            

12- bore pistol. FSL Report states that the shot has  

been fired from the 12-bore pistol which was recovered.  

The High Court has not found the recovery to be  

vitiated. This means that recovery can be acted upon.  

(v) There is no material for the inconsistency between the  

evidence of PWs 1 and 2. The only variation is that PW2  

has deposed that Resham Singh has climbed up to the  

tractor and fired the shot which caused injury no.4 on  

the back of the body of the deceased. In this regard,  

he relied upon judgment of this Court in Abdul Sayeed  

v. State of Madhya Pradesh3 to contend if there is  

inconsistency between ocular and medical evidence,  

ocular evidence must prevail unless medical or  

scientific evidence completely renders impossible  

action upon ocular testimony.    

(vi) The statement of PW1 that the shots were fired from 5-7  

steps from near the bullock cart, was also explained,  

as found by the Trial Court, by holding that PW1 was  

 3 (2010) 10 SCC 259

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describing the distance between the place of the  

bullock cart and the place of the shot fired.  

(vii) The FIR was lodged within three hours on 22.08.1992  

itself. The incident took place at 05.30 P.M.. The  

promptness, with which the FIR was lodged, was not  

given the due importance.  

(viii) Lastly, the reasoning of the High Court that none  

of the relatives suffered injuries, is attacked on the  

basis that when the incident unfolded with the accused  

coming out with the armed weapons, it would be  

unnatural to expect that his relatives would have  

remained glued to their position. The fact that the  

relatives were unhurt is consistent with their normal  

behaviour when faced with assailants armed with deadly  

weapons, hurling threats and firing.   

9. Per contra, learned counsel for the accused would  

submit that the incident is of the year 1992. She supports  

the order of the High Court. Learned counsel for the  

accused/respondents would submit that:

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a. There were four persons travelling on the tractor  

and only the deceased is seen injured.  

b. There is no motive established.  

c. There was no connection with the ocular and medical  

evidence.  

d. She reminds the Court that the accused have been  

acquitted under the Arms Act, 1959.   

10. Before we discuss the evidence, we think it appropriate  

to refer to the injuries actually suffered by the deceased.  

PW3 is the Doctor. The following are the injuries noted by  

PW3, which are noted as ante mortem injuries besides his  

evidence inter alia:   

 “External Examination:-  

One middle-aged person, upon dead body  

R.M. staining was present and upon his body  

stiffness was there stomach was swollen  

and left eye was not there. Upon the body  

of deceased. During body examination  

following pre death injuries were found:-  

 (1) Cut wound 15 cm x 2 cm in the upper part  

of dead and dead bone was broken.   

(2) Cut wound 16 cm x 2 cm left side of the  face which was extended from behind

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the ear to face. Due to that larbon of  

ear and bone of mandible jaw had been  

broken.  

(3) Cut wound 3 cm x 2 cm at right side of  the face, in which bone of right jaw  

had been broken.  

(4) Gunshot wound entry 3 cm x 2.5 cm at  left side of back 6 cm from shoulder  

bone towards lower side. Upon putting  

prone in that was coming toward upper  

side and front side. Upon cutting the  

bone one tikle of plate was found  

blacking totem was present. No  

scorching was there.  

(5) Gunshot wound of entry on right side  of chest which had fractured the color  

bone and rib. Upon proning it was  

going to backside and lower side.  

(6) Cut wound 3 cm x ½ cm right side of  chest in the side of nipple.   

External Examination  

(1) Scull bone was broken brain membrane  was torn. In the chest third and  

fourth rib and fifth. Towards left and  

first. Second of right side was  

broken. Both the lungs were torn,  

heart also was torn. 16/15 teeth in  

the mouth were there. There was no  

food in the stomach.  

In my opinion death of the deceased  

was caused because of shock due to  

pre-death injuries and excessive  

bleeding. At the time of examination,  

Examination report was prepared by  

me, which is in my handwriting and  

signature. It was before me on the  

file. Upon this Ex. Ka 3 was put.  

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During body examination 2 tikle card  

board and 34 pallet had removed which  

were sealed and was handed over to  

concerned constable and clothes of  

deceased shirt, tahmad, underwear,  

kada, kripall. Total 5 piece and  

police documents and dead body was  

handed over to police people.    

Above injuries are possible to be  

caused with sword, pistol, spear and  

sharp weapon on 22.8.92 at 5:30 PM in  

the evening.    

The detail of possible symptom of  

post-death is given above in the  

column in postmortem report, 12 hrs  

difference in period of death, then  

said, six hour difference can be, that  

is, death is possible to be also in the  

night of 22.8.92. The shirt of  

deceased was cut or not, he does not  

remember. The injury No. 5 can be  

caused in such condition when  

striking person assault by standing  

in height. The injury No. 4 is from  

down to up side, i.e. Striking person  

fire the short from down side upon  

injured, then above both injuries can  

be caused by firing from the distance  

of 3 feet. The above injuries are of  

total two fire. Deceased would have  

taken the food before 8 hours, because  

in his stomach no contents were found.  

After 8 hrs of having food, food is  

digested.”    

11. It was found that the skull bone was broken, brain  

membrane was torn. In the chest, third and fourth rib and

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fifth. Towards left and second of right side was broken.  

Both the lungs were torn. Heart also was torn. 16/15 teeth  

in the mouth were there. There was no food in the stomach.  

He says further that in his opinion, death was caused  

because of shock due to pre-death injuries and excessive  

bleeding.   

12. A perusal of the description of the injuries would show  

that injuries 4-5 were gunshot injuries. The other four  

injuries were cut wounds.  

13. This is a case of direct evidence.  

14. PW1, a 17-year old son of the deceased, has deposed,  

inter alia, as follows:  

 He along with his father (deceased),  

mother and maternal uncle were travelling in  

a tractor with his deceased father driving  

it. A bullock cart was there on the road which  

was parked in the centre. This cause them to  

stop the tractor. Resham Singh, Darshan  

Singh, Jagir Singh with pistols in their  

hands and the other accused with other deadly

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weapons, appeared. PW1 further says that  

Resham Singh fired the shot from the pistol  

which struck the back of his father and he  

fell down from the tractor. At that time, PW2  

and one Gurdeep Singh were coming on cycles  

behind their tractor. When the deceased fell  

down, then, Pahalwan Singh with sword,  

Darshan Singh and Jagir Singh with pistol,  

Veer Singh and Daleep Singh with other deadly  

weapons, assaulted his father. Being empty  

handed, as they were not having any arms, they  

could not save his father. PW1 says that he  

knew the accused because they were their  

neighbours. There was enmity between the  

deceased and the accused acted due to not  

getting the road constructed and having  

passage.  

In the cross-examination, he, inter alia, states as  

follows:

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He has stated in the complaint that after  

firing shot by Resham Singh and falling down  

of his father, the other accused had fired and  

assaulted. He gave same statement to the  

Darogaji. He has no explanation for the  

statement not being in the FIR. PW2 is married  

to his father’s sister. He lives about 2 to  

2½ kilometres away from his village. Gurdeep  

Singh lives 10 to 12 kilometres away from his  

village. He is alive. After half quarter to  

one hour, Police came to the spot of incident.  

That it was quarter to nine. Police filled-up  

Panchnama at the spot which was filled in the  

night. Panchnama was filled in the torch  

light. The Panchnama was filled-up and PWs 1  

and 2 are the witnesses to the Panchnama.  

Three of the two accused were arrested on the  

next day. They were Daleep Singh, Jagir Singh  

and Darshan Singh. They went to the Police  

Station on cycles. Ishwar Singh, Preetam                  

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Singh (PW4-maternal uncle) and the mother of  

the PW1, accompanied him. Ishwar Singh is the  

resident of village Kisanpur which is 7  

kilometres further from his village. For  

lodging the report, he went to Nanakmatta  

Police Station. They were coming from  

Nanakmatta. From their itself, they went back  

to lodge the report. Ishwar Singh was  

standing in the way at the house of maternal  

uncle in village Sunkari which is a village  

adjacent to the road. Ishwar Singh went to the  

Police Station with him. Ishwar Singh lodged  

the report at the Police Station. He and his  

mother and maternal uncle had told Ishwar  

Singh about the incident. House of the  

accused and their house, are located nearby.  

Suggestion that they had made three other  

persons flee from the village and had taken  

possession of their land, due to which there  

was enmity, was denied. There was no other

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tree except semal tree on the spot. Bushes are  

there on both sides of the road. The Semal  

tree is on the eastern side of the road. They  

took one hour in coming to Nanakmatta from the  

village. PW1 was sitting on the right side in  

the tractor. PW4-maternal uncle and father of  

PW1 were sitting on the left side of the  

tractor. There were no rains at that time. The  

bullock cart was empty. They had stopped the  

tractor at the distance of 4-5 steps. The  

light of the tractor was burning. All the  

accused came, stood at front and all the three  

had fired the shot. Firing was done from the  

front. The other people climbed upon the seat  

of the tractor itself, assault was done with  

sword, spear, etc.. His father had fallen  

down at the seat of the tractor itself.  

Accused ran away. The shots were fired from  

the distance of 5-7 steps near to the bullock  

cart. The Darogaji had seen the blood on

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tractor at the spot. The assaults with the  

sword, spear and sabre were done one to two  

times. They had not taken the tractor to the  

Police Station because the dead body was  

lying on it.   

15. PW2, who was referred to by PW1 as one of the persons  

who were following them on cycle, corroborates PW1 that the  

deceased was driving the tractor, and along with him, PW1,  

his mother and maternal uncle were sitting. He deposes about  

the bullock cart. The tractor stopped. The threat by the  

accused who came out, is referred to. The firing by Resham  

Singh at the back of the deceased, and Darshan Singh and  

Jagir Singh, firing the shots from the front, and the others  

assaulting are deposed to. He claims to have gone along with  

PW1 to lodge the report. The report was got written from  

Ishwar Singh. He has told the names of the accused at the  

time of the filling of the Panchnama. He earlier says that  

on the day of the incident, at the spot also, Police did  

the inquiry after filling the Panchnama. At that time,

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Police did not enquire with him about the incident. He  

denies as incorrect that the name and the address of the  

accused was not known till the filling of the Panchnama,  

and it is on account of that, that the name of the accused  

is absent in the Panchnama. PW1 and his parents had not met  

him at Nanakmatta on the day of the incident. PW4-maternal  

uncle also had not met. Tractor light was not burning. All  

the accused were standing behind the bullock cart, when they  

saw. There is a tree also nearby. After giving threat,  

firing started. They were standing near in front of tractor.  

Resham Singh had fired the shot from behind after climbing  

in tractor which had struck at the back of the deceased.  

Firing was done thrice. Daleep Singh attacked with spear.  

Jagir Singh attacked with spear from front in the stomach.  

Veer Singh attacked with sabre from behind on the head.  

There were no bushes on both sides but crop was there.  

Accused had struck one-one time with sword, sabre and spear.  

Swarn Singh-PW1, his mother and PW4 had gone on foot to  

lodged the report. He had also gone with them on foot holding  

the cycle. Four people went. The report was written sitting

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at the Police Station. PW1 had written the report. PW1 is  

educated. Police had remained at the spot till 08.00 A.M.  

in the morning. It did not rain on that day.  

16. PW4 is the maternal uncle. He, in chief examination,  

stated that at 05.30 P.M., he was at home on 22.08.1992.  

He had not seen any incident. In cross by prosecution, he  

would say that PW1 went to lodge the report in the morning.  

He also came to know in the morning that the deceased had  

died. PW1, Veera Kaur-mother of PW1 and Gurdeep Singh, all  

came to know about the incident in the morning and had gone  

near the dead body in the field and thereafter gone to file  

the report.  

17. PW5 is the Sub-Inspector of Police. During  

investigation, he deposes that he had taken the statement  

of PW1. He deposes about the recovery statement by Darshan  

Singh which leads to the recovery of the pistol. Likewise,  

on the statement of Pahalwan Singh, the sword was recovered.  

Case under Section 25 of the Arms Act was registered at 1930  

hours against Darshan Singh on 23.08.1992. On 28.08.1992,  

Resham Singh, Daleep Singh, Jagir Singh and Veer Singh were

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arrested at 08.05 P.M. in the night. He speaks about the  

recovery of the 12-bore pistol on the statement of Resham  

Singh, one spear on the statement of Daleep Singh and one  

sabre on the statement of Veer Singh. The recovered goods  

were sealed separately. Case was registered against Resham  

Singh under Section 25 of the Arms Act, 1959. He prepared  

the site map which was produced as Ka-18. He states that  

he had reached the place of incident in the night of  

22.08.1992 and due to dark, the Panchnama of the body could  

not be done on the same day. The investigation was done by  

PW5 till 28.08.1992. Thereafter, it was handed over to one  

Davendra Singh. In cross-examination, he would say as  

follows:  

No serial number is there upon any  

pistol. Pistol without opening cannot be  

closed. Another pistol open with rust is  

there. Barrell is not getting opened. At this  

time, both the pistols are not in working  

condition. He does not remember as to after  

how many days of recovery, the pistols and

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empty cartridges were sent to Analyzer. It  

was sent on 25.11.1992 by Special Messenger  

through the Munsif Magistrate Khateena which  

was received on 28.11.1992. He is neither a  

Ballastic Expert or did he have any special  

training in this regard.  

In Ka 6, in “Death” column, time of death  

has not been mentioned. Time of dispatch of  

body from “Police Headquarters”, is not  

recorded.   

18. He had filled-up the Panchnama on the next day in the  

morning. When he had reached there, due to insufficient  

light on the spot, Panchnama could not be filled at that  

night. The dead body was lying in the paddy field at the  

side of the road. On eastern side of the road, semal tree  

is there. Neither the ox and the bullock cart were found  

and taken into possession.   

19. PW6 is Devendra Singh who carried on the investigation  

as per orders of the Magistrate dated 11.09.1992. He

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prepared Site Map-Ka 19. PW6 continued with the  

investigation, and in cross-examination, he states as  

follows inter alia:   

“The statement of Shri Kamal Ram Arya, S.I.  

and S.O. Nanakmatta was taken on 7.10.92. I  

had taken the statements of witnesses Pratap  

Singh on 7.10.92. Witnesses Veera Kaur,  

Pratap Singh, Preetam Singh, Harnam Singh and  

Munsha Singh had not told me the number of the  

tractor. Veera Kaur had deposed me that  

Resham Singh had fired upon my husband, who  

was sitting on the tractor and Pahalwan Singh  

had assaulted with sword, due to that her  

husband fell down from the tractor. Same way  

Pratap Singh also had given the statement.”   

20.  It may be true that evidence regarding the statement  

in Section 161 Cr.PC is permissible only as contemplated  

in Setion 162 of the Cr.PC and Section 145 of the Indian  

Evidence Act, 1872. What is relevant is the fact that the  

mother of PW1 who is the wife of the deceased and, more  

importantly, who was allegedly travelling in the tractor,  

was the most important witness and she was not examined.   

21. This is a case where the Trial Court convicted the  

accused and the High Court has, in appeal filed by the

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accused, acquitted them. This appeal is generated by  

special leave. What are the contours of the jurisdiction  

of this Court in this matter? We would only refer to two  

judgments of this Court in this regard.   

22. In The State Government, Madhya Pradesh v. Ram Krishna  

Ganpatrao Limsey and others4, this is what this Court, inter  

alia, held:   

“5. … The exercise of this extraordinary  

jurisdiction is not justifiable in criminal  

cases unless exceptional or special  

circumstances are shown to exist or that  

substantial and grave injustice has been  

done. In the case of an order of acquittal  

where the presumption of the innocence of an  

accused person is reinforced by an order of  

acquittal of a High Court, the exercise of  

this jurisdiction would not be justified for  

merely correcting errors of fact or law. An  

occasion for interference with an acquittal  

order may arise, however, where a High Court  

acts perversely or otherwise improperly or  

has been deceived by fraud.”  

23. In State of Uttar Pradesh v. Guru Charan and others5,  

we noticed the following discussion at paragraphs 41 to 43:  

 4 AIR 1954 SC 20  5 (2010) 3 SCC 721

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“41. In Banne case [(2009) 4 SCC 271:  

(2009) 2 SCC (Cri) 260], the settled legal  

position which has been crystallised in a  

number of judgments has been reconsidered and  

reiterated. The principles emerging are  

restated in the following words: (SCC p. 286,  

paras 27-28)  

“27. The following principles emerge  

from the aforementioned cases:  

1. The appellate court may review the  

evidence in appeals against acquittal  

under Sections 378 and 386 of the  

Criminal Procedure Code, 1973. Its power  

of reviewing evidence is wide and the  

appellate court can reappreciate the  

entire evidence on record. It can review  

the trial court's conclusion with  

respect to both facts and law.  

2. The accused is presumed to be  

innocent until proved guilty. The  

accused possessed this presumption when  

he was before the trial court. The High  

Court's acquittal bolsters the  

presumption that he is innocent.  

3. There must also be substantial and  

compelling reasons for reversing an  

order of acquittal.  

This Court would be justified in  

interfering with the judgment of acquittal  

of the High Court only when there are very  

substantial and compelling reasons to  

discard the High Court's decision.  

28. Following are some of the  

circumstances in which perhaps this Court

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would be justified in interfering with the  

judgment of the High Court, but these are  

illustrative not exhaustive:  

(i) The High Court's decision is based  

on totally erroneous view of law by  

ignoring the settled legal position;  

(ii) The High Court's conclusions are  

contrary to evidence and documents on  

record;  

(iii) The entire approach of the High  

Court in dealing with the evidence was  

patently illegal leading to grave  

miscarriage of justice;  

(iv) The High Court's judgment is  

manifestly unjust and unreasonable  

based on erroneous law and facts on the  

record of the case;  

(v) This Court must always give proper  

weight and consideration to the findings  

of the High Court;  

(vi) This Court would be extremely  

reluctant in interfering with a case  

when both the Sessions Court and the High  

Court have recorded an order of  

acquittal.”  

42. We may also notice here the  

observations made by this Court in State of  

U.P. v. Harihar Bux Singh [(1975) 3 SCC 167  

: 1974 SCC (Cri) 799] with regard to the scope  

of interference by this Court under Article  

136 of the Constitution. It is observed as  

follows: (SCC p. 170, para 14)

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“14. In an appeal under Article 136 of  

the Constitution, this Court does not  

interfere with the finding of acquittal  

recorded by the High Court unless that  

finding is vitiated by some glaring  

infirmity in the appraisement of evidence.  

The fact that another view could also have  

been taken on the evidence on record would  

not justify interference with the judgment  

of acquittal. The judgment of the High  

Court in the present case has not been  

shown to suffer from any such weakness as  

might induce us to interfere. The appeal  

consequently fails and is dismissed.”  

43. The same view has been reiterated by  

this Court in State of U.P. v. Gopi [1980  

Supp SCC 160 : 1979 SCC (Cri) 630] wherein it  

is observed as follows: (SCC p. 161, para 2)  

“2. … There may be something to be said  

for this view of the High Court and, if we  

were sitting as a court of appeal, we may  

have taken a different view and may have  

accepted the statements of PWs 4 and 6. But  

that is no reason to set aside the judgment  

of the High Court for after consideration  

of the various aspects of the case it  

cannot be said that the view taken by the  

High Court was not reasonably possible.”  

(Emphasis supplied)  

28  

24. Having set out the boundaries of this Court’s  

jurisdiction in the matter, let us examine what weighed with  

the High Court.   

25. In the first place, it is stated that there were  

material variations in the evidence of PWs 1 and 2. As to  

what these variations are, they have not been culled out  

in the judgment. We, however, find the following aspects:  

a. PW1 has stated that after half quarter to one hour,  

Policemen have come to the place of incident. Police  

had filled the Panchnama at the spot which was filled  

in the night. The Panchnama was filled in the torch  

light. PW2, on the other hand, says that Panchnama of  

the dead body was done on the next day in the morning.  

PW5-the Police Inspector, who did the Panchnama, has  

stated that on 23.08.1992 (next day), at the place of  

incidence, after filling the Panchnama of the dead body  

recorded and after reading, got the signatures of the  

Panches done. He further reiterates this when he says  

that he had reached the place of incidence in the night  

of 22.08.1992, and due to dark, the Panchnama of body

29  

could not be done on the same day. A Sub-Inspector and  

PAC were posted for security of the dead body.  

b. PW1 says that he had got report written of the incident  

from Ishwar Singh and gave to the Police Station.  

Ishwar Singh went to the Police Station with him. He  

wrote the report at the Police Station. PW1, his mother  

and maternal uncle had told to Ishwar Singh about the  

incident. PW2, on the other hand, would say that along  

with PW1, he also went to lodge the report. He also said  

that PW1 got the report written from Ishwar Singh and  

gave it to the Police Station. In cross-examination,  

however, he stated that PW1, his mother and maternal  

uncle had gone on foot to lodge the report. PW2 had also  

gone with him on foot holding the cycle. Four people  

had gone. PW1, no doubt, does not appear to refer to  

PW2 as having accompanied him to the Police Station.  

PW2 further says that the report had been written  

sitting at the Police Station. More importantly, he  

deposed that PW1 had written the report and that PW1  

is educated. As can be noticed, according to PW1, the

30  

report was got written through Ishwar Singh. PW2 also,  

in his examination, has given the same version but in  

cross-examination, as noticed, he states that the  

report was written by PW1.    

c. According to PW1, the light of the tractor was burning.  

According to PW2, bulbs were, however, off.   

d. According to PW1, there were bushes on both sides of  

the road. PW2, however, deposes that there were no  

bushes nearby of road but crop was there.   

e. PW1 deposed that they went to the Police Station on  

cycles. However, PW2 has deposed that PW1, his mother  

and PW4 had gone on foot to lodge the report and that  

PW2 had gone with them on foot holding the cycle.  

f. Coming to the most important aspect of the matter,  

viz., as the actual unfolding of the incident, PW1 has  

stated that Resham Singh fired the shot from pistol  

which struck at the back of his father. When his father  

fell down, then, others attacked. All the accused stood  

at front and all the three had fired the shot. He  

further deposes that the firing was done from the

31  

front. Other people climbed on the tractor. Upon the  

seat of the tractor itself, assault was done with  

spear, sword, etc. Total three shots were fired. The  

shots were fired from the distance of 5-7 steps near  

to the bullock cart.  

26.  PW2, who was coming on cycle, according to the  

prosecution, behind the tractor and witnessed the incident,  

also has deposed that Resham Singh fired the shot by the  

pistol at the back of the deceased. Darshan Singh and Jagir  

Singh fired from the front. Pahalwan Singh and Daleep Singh  

attacked with other weapons from the front. When they saw  

them, then, all the accused were standing behind the bullock  

cart. Then, he says, Resham Singh had fired the shot from  

behind after climbing in the tractor which had struck at  

the back of the deceased. There were total three fires done.  

Daleep Singh attacked with spear from the front in the  

stomach. Veer Singh assaulted with sabre from behind on the  

head.

32  

27. These are apparently the variations which appear to  

have impressed the High Court.  

28. Before we deal with them, let us have a look at the other  

aspects which weighed with the High Court. PW2 was found  

to be not a non-partisan witness being related to the  

informant. PW4 is the maternal uncle of PW1, who, according  

to PW1, was travelling with him in the tractor. He has turned  

hostile. It is worthwhile to advert to what PW4 has deposed:  

“On 23.08.1992 Darogi had not recovered  

any sword and pistol in front of me from the  

chhappar of Pahalwan Singh and Darshan Singh.  

No incident had taken place before me.  

Darogaji had not asked anything from me  

about the incident. His statement under  

section 361 Cr.P.C. was read. He said, I  

cannot say the reason that how my such  

statement was recorded. It is wrong to say  

that after meeting the accused today I am not  

telling this thing.  

About the incident, I came to know in the  

morning. That Singara Singh had died. His  

dead body is lying in the field. Swarn Singh  

went to lodge the report in the morning. He  

also came to know in the morning only that  

Singara Singh had died.”  

33  

29. The further circumstance is the improbability of the  

accused fleeing away in the bullock cart after inflicting  

wounds and firing.   

30. The next circumstance relied upon by the High Court is  

the fact that PW1 deposed that the light of tractor was on  

whereas PW2 deposed that the bulbs of the tractor being off.  

Trial Court has got over it by reasoning that if the bullock  

cart was standing blocking, then, blowing the horn and  

burning the light by the driver is natural and possible.  

PW2 was coming on the cycle behind the tractor and it may  

not have been possible for him to know that the tractor  

lights were burning or not. At any rate, this by itself is  

not significant contradiction or circumstance as would  

merit consideration in the matter of reversing a  

conviction.  

31. The next circumstance relied on by the High Court is  

that according to the prosecution case, PW1, his mother and  

PW4-his uncle, were travelling along with the deceased in  

the tractor. They were sitting on the tractor and on the  

mudguard. If there was firing, as projected in the

34  

prosecution case, the High Court found it unnatural that  

these persons would not suffer any pellet injury when firing  

was done from the front.  

32. Then, we come to the circumstances which relate to the  

inconsistency between the ocular evidence and also the  

medical evidence. PWs 1 and 2 have both deposed that three  

shots were fired. The medical evidence, undoubtedly, would  

show that there were two gunshot injuries, viz., injury no.4  

and injury no.5, which we have set out earlier. Gunshot  

wound entry is on the left side of the back from the shoulder  

bone towards the lower side. No scorching was found. Injury  

no.5 was the gunshot wound of entry on the right side of  

the chest which had fractured the collarbone and rib. Upon  

pruning, it was going to back side and lower side.   

33. Regarding the injury (injury no.4), being suffered in  

the back, the High Court has noted that the case of the  

informant is that the accused came abusing in front of the  

tractor and then inflicted injuries with the weapons which  

they were carrying. The court records that the learned AGA  

was gracious enough to admit that the medical evidence did

35  

not support the eyewitness account. It is also found that  

injuries sustained by the sharp-edged weapons were from  

down to top and not up to down, and therefore, there was  

inconsistency between the eyewitness account and medical  

evidence in this respect also. The High Court further  

reasons that if PW1 is believed that Resham Singh’s bullet  

hit at the back of the deceased, then, there is no  

explanation for ante mortem injury no.5 where the wound of  

entry is on the right of the chest with blackening and  

tattooing present. There was no explanation found for  

injury no.6 incised wound of 3 cm. x ½ cm. on the right side  

of the chest near the nipple. In other words, it is found  

that if PW1 is believed, then, there would be no ante mortem  

injuries on the front of the deceased [This is apparently  

a mistake]. In normal course, if the assailants have  

attacked from the front, as is the prosecution case, there  

is justification for injuries nos. 5 and 6. But there is  

no justification for injury no.4.  The High Court further  

reasons that if the prosecution witness is believed that  

the deceased was hit from the front, then, the injury no.4

36  

should not have been there. It is further noted by the High  

Court that it is not the case of the prosecution that the  

deceased, while driving the tractor, bent in such a way that  

the bullet hit his back. The statement by PW2 that Resham  

Singh stepped into the tractor and fired from behind which  

hit the deceased, appeared to the High Court a new  

development. PW3-Doctor, in his cross-examination, deposed  

that injury no.5 was possible when the assailants hit the  

victim from a height. Injury no. 4 was possible, according  

to the medical officer, when the assailants fired on the  

victim from below (comparatively low level). It is on this  

basis, the High Court reasons that reasonable suspicion  

arises whether the incident took place in the manner  

depicted by the eyewitness. Medical evidence does not  

support the eyewitness account, it was found. It is on this  

basis, that the High Court has taken a view that the accused  

deserve to be acquitted.  

34. PWs 1, 2 and 4 are the witnesses for the prosecution  

who were stated to have witnessed the incident. There can  

be no doubt that the deceased died a brutal death. The nature

37  

of the injuries leaves us with no doubt in this regard. The  

only question is whether these injuries were caused by the  

accused and whether the incident took place in the manner  

spoken to by the prosecution witnesses.  

35. The mother of PW1, who was travelling along with the  

deceased, has not been examined even though her statement  

has been taken as is proved by the statement of the  

Investigating Officer. PW4-brother-in-law of the deceased,  

as noticed by us, has turned hostile. He denied that any  

such incident happened before him. He has deposed that he  

came to know in the morning that the death has taken place.  

He further has deposed that the dead body was lying in the  

field and that PW1 went to lodge the report in the morning  

and he has also come to know in the morning only about the  

death. He further deposed that the wife of the deceased and  

the cyclists, all came to know about the incident in the  

morning and thereafter they went to lodge the report.   

36. In the FIR, a contradiction was noticed by the Trial  

Court itself vis-à-vis the deposition of PW1. In the  

testimony of PW1, he has attributed overt acts by Jagir

38  

Singh and Daleep Singh whereas it is not so found in the  

FIR. In the FIR, what is recorded is, inter alia, that Resham  

Singh fired the shot which struck at the back of the  

deceased. Then, he says Pahalwan Singh with sword, Darshan  

Singh with pistol and Veer Singh with sabre (Kappa),  

assaulted. No acts are attributed in the FIR, as is, in fact  

spoken to by PW1 in the court against Daleep Singh and Jagir  

Singh. In the court, PW1 has stated that when his father  

fell down, then, Pahalwan Singh with sword, Darshan Singh  

with pistol, Veer Singh with sabre, Jagir Singh with pistol  

and Daleep Singh with spear, assaulted his father. PW2 has  

also sought to implicate Jagir Singh and Daleep Singh. Thus,  

the nature of the involvement of Jagir Singh and Daleep  

Singh, according to version of PWs 1 and 2, involves a  

departure from the case set out in the FIR.  

37. Another aspect to be noticed is that PW2 was a panch  

witness. Panchnama was held, as already concluded by us,  

on 23.08.1992. There is no dispute in this case about  

identification. In other words, there is no case for the  

accused that PW2 did not know them. Thus, PW2, it must be

39  

taken, knew them. PW2 was admittedly a panch witness.  

However, PW2 does not name any of the accused when the  

Panchnama took place on 23.08.1992. According to him, he  

did name them but PW5 says otherwise. The Trial Court has  

overcome this anomaly by holding that the purpose of holding  

the Panchnama (inquest) would not comprehend within it, an  

inquiry into who has committed the offence.  

38. It is true that this Court has repeatedly held that the  

purpose of inquest under Section 174 of the Cr.PC, as  

contained in the said provision, the person holding the  

inquest, in short, is not to make an inquiry about who are  

the accused (See in this regard the judgment in Tehseen  

Poonawalla v. Union of India and another6). But is equally  

true that PW2 has not taken the names of any of the accused  

before the Investigating Officer contrary to his evidence  

as is proved by the evidence of the Officer.  

39. It is also pressed before us by the State that the High  

Court has ignored the aspect relating to recovery of the  

weapons used by the accused. PW5-Investigating Officer has  

 6 (2018) 10 SCC 498

40  

spoken about recovery being effected from Darshan Singh and  

Pahalwan Singh. From Darshan Singh, the pistol was got  

recovered. From Pahalwan Singh, the sword was got  

recovered. This is done pursuant to the arrest on  

23.08.1992. On 28.08.1992, Resham Singh, Daleep Singh, Veer  

Singh and Jagir Singh were found and arrested. Pursuant to  

interrogation, PW5 speaks about their stating that they had  

committed the murder along with Daleep Singh and Pahalwan  

Singh on 22.08.1992. PW5 speaks about recovery of 12-bore  

pistol from Resham Singh, one spear by Daleep Singh and one  

sabre by Veer Singh. In fact, the High Court has indeed not  

adverted to the recoveries, as such.    

40. Appellant-State seeks support from judgment in Mangoo  

v. State of Madhya Pradesh (supra). Therein, this Court took  

the view that when the medical evidence was not in entire  

conflict with the ocular version of child witness, it would  

not be fatal to the prosecution. It was a case where there  

were discrepancies regarding the number of blows inflicted  

and which side of the weapon was used in the first instance.

41  

41. In Abdul Sayeed v. State of Madhya Pradesh7, this Court  

discussed elaborately the case law on the subject of  

conflict between medical evidence and ocular evidence:  

“Medical evidence versus ocular evidence  

32. In Ram Narain Singh v. State of  

Punjab [(1975) 4 SCC 497 : 1975 SCC (Cri) 571  

: AIR 1975 SC 1727] this Court held that where  

the evidence of the witnesses for the  

prosecution is totally inconsistent with  

the medical evidence or the evidence of the  

ballistics expert, it amounts to a  

fundamental defect in the prosecution case  

and unless reasonably explained it is  

sufficient to discredit the entire case.  

33. In State of Haryana v. Bhagirath  

[(1999) 5 SCC 96 : 1999 SCC (Cri) 658] it was  

held as follows: (SCC p. 101, para 15)  

“15. The opinion given by a medical  

witness need not be the last word on the  

subject. Such an opinion shall be tested  

by the court. If the opinion is bereft of  

logic or objectivity, the court is not  

obliged to go by that opinion. After all  

opinion is what is formed in the mind of  

a person regarding a fact situation. If one  

doctor forms one opinion and another  

doctor forms a different opinion on the  

same facts it is open to the Judge to adopt  

 7 (2010) 10 SCC 259

42  

the view which is more objective or  

probable. Similarly if the opinion given  

by one doctor is not consistent with  

probability the court has no liability to  

go by that opinion merely because it is  

said by the doctor. Of course, due weight  

must be given to opinions given by persons  

who are experts in the particular  

subject.”  

(Emphasis added)  

34. Drawing on Bhagirath case [(1999) 5  

SCC 96 : 1999 SCC (Cri) 658] , this Court has  

held that where the medical evidence is at  

variance with ocular evidence,  

“it has to be noted that it would be  

erroneous to accord undue primacy to the  

hypothetical answers of medical witnesses  

to exclude the eyewitnesses' account which  

had to be tested independently and not  

treated as the ‘variable’ keeping the  

medical evidence as the ‘constant’”.  

35. Where the eyewitnesses' account is  

found credible and trustworthy, a medical  

opinion pointing to alternative  

possibilities cannot be accepted as  

conclusive. The eyewitnesses' account  

requires a careful independent assessment  

and evaluation for its credibility, which  

should not be adversely prejudged on the  

basis of any other evidence, including  

medical evidence, as the sole touchstone for  

the test of such credibility.

43  

“21. … The evidence must be tested for  

its inherent consistency and the inherent  

probability of the story; consistency with  

the account of other witnesses held to be  

creditworthy; consistency with the  

undisputed facts, the ‘credit’ of the  

witnesses; their performance in the  

witness box; their power of observation,  

etc. Then the probative value of such  

evidence becomes eligible to be put into  

the scales for a cumulative evaluation.”  

[Vide Thaman Kumar v. State (UT of  

Chandigarh) [(2003) 6 SCC 380:2003 SCC  

(Cri)1362] and Krishnan v. State [(2003)  

7 SCC 56:2003 SCC (Cri) 1577] at SCC pp.  

62-63, para 21.]   

36. In Solanki Chimanbhai Ukabhai v.  

State of Gujarat [(1983)2 SCC 174:1983 SCC  

(Cri) 379: AIR 1983 SC 484] this Court  

observed: (SCC p. 180, para 13)  

“13. Ordinarily, the value of medical  

evidence is only corroborative. It proves  

that the injuries could have been caused  

in the manner alleged and nothing more. The  

use which the defence can make of the  

medical evidence is to prove that the  

injuries could not possibly have been  

caused in the manner alleged and thereby  

discredit the eyewitnesses. Unless,  

however the medical evidence in its turn  

goes so far that it completely rules out  

all possibilities whatsoever of injuries  

taking place in the manner alleged by  

eyewitnesses, the testimony of the  

eyewitnesses cannot be thrown out on the

44  

ground of alleged inconsistency between it  

and the medical evidence.”  

(Emphasis added)  

37. A similar view has been taken in Mani  

Ram v. State of U.P. [1994 Supp (2) SCC 289:  

1994 SCC (Cri) 1242] , Khambam Raja  

Reddy v. Public Prosecutor [(2006) 11 SCC  

239 : (2007) 1 SCC (Cri) 431] and State of  

U.P. v. Dinesh [(2009) 11 SCC 566 : (2009) 3  

SCC (Cri) 1484] .  

38. In State of U.P.  v. Hari  

Chand [(2009) 13 SCC 542:(2010) 1 SCC (Cri)  

1112] this Court reiterated the  

aforementioned position of law and stated  

that: (SCC p. 545, para 13)  

“13. … In any event unless the oral  

evidence is totally irreconcilable with  

the medical evidence, it has primacy.”  

39. Thus, the position of law in cases  

where there is a contradiction between  

medical evidence and ocular evidence can be  

crystallised to the effect that though the  

ocular testimony of a witness has greater  

evidentiary value vis-à-vis medical  

evidence, when medical evidence makes the  

ocular testimony improbable, that becomes a  

relevant factor in the process of the  

evaluation of evidence. However, where the  

medical evidence goes so far that it  

completely rules out all possibility of the  

ocular evidence being true, the ocular  

evidence may be disbelieved.”

45  

42. There are certain other aspects which strike us. The  

incident allegedly unfolded when the deceased along with  

PW1, his wife, and brother-in-law (PW4) were coming back  

from Nanakmatta in a tractor. The case of the prosecution  

further is that the accused came forward and committed the  

acts attributed to them. There is an allegation that some  

relatives accompanying the deceased were sitting on the  

mudguard of the tractor. There is a case for the prosecution  

that the deceased fell from the tractor when PW1 was asked  

how he went to the Police Station to lodge the report and  

whether he had taken the tractor, his answer was that since  

the body of his father was lying on it, they did not take  

the tractor and they went on foot. Therefore, it must be  

taken that the body was on the tractor. PW5-the  

Investigating Officer, on the other hand, deposed that the  

dead body of the deceased was lying in the paddy field at  

the side of the road. PW5-original Investigating Officer  

does not speak a word about the tractor. Was an effort made  

to trace the tractor and to make it available in evidence  

as the details about the tractor would have shed light on

46  

the position of the deceased and of the others and  

facilitated the proving of the prosecution case. According  

to PW1, the tractor was left behind as the dead body was  

lying on it. As noted, PW5 speaks otherwise and the dead  

body was found at the paddy field at the side of the road.  

Whether, therefore, the tractor was in fact used as claimed  

by the prosecution? There is no evidence regarding any  

investigation conducted by the Officer in regard to the  

tractor. The nature and size of the tractor remains a  

mystery.  

43. We have already noticed that there are contradictions  

in the evidence of PWs 1 and 2 as to who wrote the report.  

Did PW1 himself write the report as claimed by PW2 in his  

cross-examination or was it written by Ishwar Singh, who  

according to PW1 wrote the report? There are contradictory  

answers given by PWs 1 and 2 as already noticed.  

44. Another aspect which strikes us is as follows:  

According to PW1, his mother who was  

travelling with him and his father and who

47  

has witnessed the entire incident, is  

supposed have walked a good seven to eight  

kilometres to the Police Station, if PW2 is  

believed.   

PW1 claims that he, his mother and his  

maternal uncle (PW4) had told Ishwar Singh  

about the incident, and after writing the  

report, PW1 appended his signatures. As  

already noticed, PW4-maternal uncle has  

turned hostile. PW1 does not speak about PW2  

accompanying them to the Police Station.  

PW2, on the other hand, would state that he  

also went along with them (not riding the  

cycle but on foot). Is it likely that the  

mother of PW1, who has witnessed the ghastly  

murder of her husband and who would be  

shell-shocked, would undertake the journey  

seven to eight kilometres long or would she  

rather not prefer to stay near the body of  

her husband? She has not been examined.

48  

45. If the incident had happened, as projected by the  

prosecution, and PW1, his mother and PW4 were accompanying  

the deceased apart from PW2 and other cyclists, would they  

not immediately rush the body to the nearest hospital? In  

fact, from the post-mortem report, it would appear that the  

body reached the hospital only on 23.08.1992 in the  

afternoon. These aspects create doubts in our minds and  

strengthens the judgment of the High Court further.  

46. As far as injury no.4 is concerned, quite indisputably,  

it has been sustained by the deceased on the back side. The  

site of the injury is not the subject matter of any  

controversy. Both, oral testimony and the medical evidence,  

establish this fact. In regard to this fact, there is no  

contradiction between the oral version of the witnesses and  

the Expert opinion.   

47. In fact, the doubt arises about the prosecution version  

from the oral testimony itself. As noticed already, PW1 is  

already unambiguous when he states that all the accused came  

at front and all the three had fired the shots. The firing,

49  

PW1 was specific, was done from the front. He claims that  

other people climbed on the tractor. This can mean that the  

people who had not done the firing and who were otherwise  

armed according to his version, climbed on the tractor. In  

his earlier version, in the chief examination, he, on the  

other hand, states that when his father fell down, the  

Pahalwan Singh with sword, Darshan Singh with pistol, Veer  

Singh with Sabre, Jagir Singh with pistol and Daleep Singh  

with spear, assaulted his father. This itself manifests a  

contradiction.  

48. PW1 deposed that upon the seat of the tractor itself,  

assault was done with sword, spear, etc. His father fell  

down on the seat of the tractor. If the version of PW1 is  

accepted, it is difficult to explain how injury no.4, viz.,  

gunshot injury could be sustained by his father on the back.  

It is to be immediately noticed that this does not involve  

alluding to the medical evidence as it is not the  

prosecution version that injury no.4 was not sustained in  

the back side. It is to be noticed that according to PWs  

1 and 2, the first shot was fired by Resham Singh. PW1 states

50  

that he fired from the pistol which struck at the back of  

his father. According to the prosecution version, deceased  

was driving the tractor. We have already noticed the  

non-availability of the details of the tractor.  

Incidentally, PW1 gives the number of the tractor as 1815.   

49. The real contradiction comes in the form of testimony  

of PW2. PW2 states that Resham Singh fired the shot from  

behind after climbing in tractor which had struck at the  

back of deceased whereas PW1 has deposed that all the  

accused came stood at front and all the three had fired the  

shot. This is an inconsistency which goes to the root of  

the matter. If the above version of PW1 is believed, it is  

the deposition of PW2 which comes under a cloud. More  

importantly, injury no.4, viz., the gunshot injury at the  

back remains unexplained. For this, we do not have to go  

into the contents of the medical evidence. It is not doubt  

true that that the medical evidence also points to the  

injury no.4 being sustained by the deceased on his back  

side.

51  

50. We have already noticed that PW2 has initially stated  

that PW1 got the report written by Ishwar Singh. We have  

further noticed that contrary to the evidence of PW1 that  

the Panchnama of the dead body (inquest) was done on the  

very same night in torch light, both PWs 2 and 5 have deposed  

that Panchnama was done only on the next morning. PW2 takes  

a stand that he had told the names of the accused at the  

time of the inquest. There is not much dispute that the  

inquest does not bear him out in this regard. PW2 has deposed  

that Resham Singh fired the shot from behind after climbing  

in the tractor which had struck at the back of the deceased.  

PW1, on the other hand, has stated that the shots were fired  

from the distance of five to seven steps near to the bullock  

cart. Even proceeding on the basis on what the Trial Court  

has accepted, viz., that five to seven steps near to the  

bullock cart is not to be understood as five to seven steps  

around the bullock cart but it would be away from the bullock  

cart, and therefore, near to the tractor, PW1 has no case  

that Resham Singh has fired the shot after climbing in the  

tractor, thus, striking at the back of the deceased. PW2

52  

speaks about Daleep Singh assaulting with spear and Veer  

Singh assaulting with sabre from behind on the head. It is  

to be noted that in the FIR, Resham Singh is stated to have  

fired the shot which struck at the back of his father.  

Pahalwan Singh with sword, Darshan Singh with pistol and  

Veer Singh with sabre assaulted. No role has been attributed  

in the FIR to Daleep Singh and Jagir Singh whereas when the  

evidence opened, PW1 has gone on to attribute specific overt  

acts to them also. While a FIR is not to be an encyclopaedia  

of all that transpired, the omission to mention about actual  

overt acts to Daleep Singh and Jagir Singh, creates serious  

doubt about the version.   

51. PW2 also stated that they had left the tractor at the  

spot and had not taken it to the Police Station to lodge  

the report as the dead body was on it. On the other hand,  

the site of the dead body is the paddy filed, according to  

PW5. The tractor is not referred to by PW5.   

52. As regards the deceased falling down on being shot at  

and assaulted, PW5 would state that PW1 did not tell him

53  

anything (apparently, in the 161 statement about the fact  

of the deceased falling down).  

53. The bullock cart was not taken into possession by the  

Officer.   

54. The next aspect is about the recoveries attributed to  

the accused based on the statements. PW5 has stated, inter  

alia, as follows:  

“Darshan Singh had told that pistol  

through which I had fired that has been kept  

hiding in the heap of straw (Bhoosa) in the  

house of Pahalwan Singh, can give after  

taking out and Pahalwan Singh told that the  

sword from which I had killed Singara Singh.  

That I have kept hiding in the heap of straw  

(Bhoosa) near my house, can give after taking  

out. We people went with accused and amongst  

the accused Pahalwan Singh had given one  

sword from the heap of straw near to his house  

and Darshan Singh had given one pistol 12 bore  

after taking out and said that it is, that  

pistol and sword which was used in the murder  

of Singhara Singh.”  

55. PW5 has spoken about the recoveries effected from  

Resham Singh, Daleep Singh and Veer Singh. Recovery of a  

pistol was effected according to PW5 on the basis of a  

statement given by Resham Singh; spear on the basis of

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statement given by Daleep Singh and sabre on the basis of  

the statement by Veer Singh.  

56. The manner of effecting recovery has been described by  

PW5 in the following words:  

“In Ex. Ka 12 Darshan Singh and Pahalwan  

Singh told that we can given sword and pistol  

which has been kept hiding near the house of  

Pahalwan Singh. Accused moved ahead and went  

near to chhapper. Only one memo of recovery  

of Pahalwan Singh and Darshan Singh is there.  

Before preparing this memo, the statement of  

accused were not recorded on separate paper.  

In the same way memo of accused Resham Singh,  

Daleep Singh and Veer Singh also is one and  

not noted anywhere separately. But all the  

three said that we can give after going and  

all three accused moved ahead and carried at  

the place of recovery.”  

The finding in the FSL Report that the cartridge  

(apparently recovered from the site) has been fired from  

the 12-bore pistol no.1/69, would not be sufficient for us  

to hold that the prosecution version in this case stands  

established and that too in an appeal against the acquittal.  

In a criminal trial, the prosecution can succeed only  

if the guilt of the accused is brought home. That the accused

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may have done the crime barely suffices. The case of the  

prosecution as sought to be made out must be established.  

57. In the state of evidence, in this case otherwise, as  

discussed, particularly bearing in mind the nature of the  

limited jurisdiction this Court exercises qua the order of  

acquittal rendered by the High Court, the appellant has not  

made out a case in interfering with the impugned judgment  

of the High Court. Resultantly, the appeals fail and are  

accordingly dismissed.   

..................J.  

                  (SANJAY KISHAN KAUL)  

..................J.  

                                   (K.M. JOSEPH)  

New Delhi,  

November 7, 2019.