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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 333 OF 2013

BALIRAJ SINGH          …APPELLANT

VERSUS

STATE OF MADHYA PRADESH          …RESPONDENT

JUDGMENT

N.V. RAMANA,  J.

1. This appeal arises out of impugned Judgment and Order

dated 12th January, 2012 passed by a Division Bench of

High Court of Madhya Pradesh, Jabalpur in Criminal Appeal

No. 533 of 1994 upholding the conviction and sentence

passed by the learned trial  Court  against  the appellant

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herein for the offence punishable under Section 302/34,

IPC.

2. The  facts,  limited  for  the  purpose  of  dealing  with  this

appeal, as divulged by the prosecution case are that on 6th

January,  1992,  Hira  Singh  Gond  (Complainant—PW  7)

lodged an FIR at Bahri Police Station, Sidhi District stating

that his brother Mangal Singh had gone to the fields to

answer nature’s call, when Baliraj Singh (A1 & Appellant

herein)  and  Baijnath  Singh  (A2)  attacked  him  (Mangal

Singh) with lathis causing instantaneous death of Mangal

Singh.  Accordingly  police  registered  Crime  No.  5/92

against the accused, body of the deceased was sent for

postmortem  examination,  lathis allegedly  used  in  the

crime  were  seized  at  the  instance  of  the  accused  and

charges were framed against them under Section 302/34,

IPC to which the accused pleaded not guilty and claimed

trial.

3. In  order  to  bring  home  the  guilt  of  the  accused,

prosecution has examined 13 witnesses, while no one was

examined on the defense side. On the basis of statements

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of eyewitnesses,  Ramrati  (PW 9—wife of the deceased),

Chameli (PW 8—wife of the complainant and sister-in-law

of the deceased), and Lakhan Singh (PW 12—family friend

of the deceased), and considering the medical evidence,

the trial court came to the conclusion that accused were

guilty  of  committing  the  murder  of  Mangal  Singh

(deceased).  Accordingly,  the  trial  Court  convicted  the

accused under Section 302/34, IPC and sentenced them to

undergo imprisonment for life.

4. Aggrieved by the order of the trial court, both the accused

filed  criminal  appeal  before  the  High  Court.   However,

during  the  pendency  of  appeal  before  the  High  Court,

Baijnath Singh (A2) had died, therefore his sentence got

abated.  The  High  Court  also  found  the  statements  of

eyewitnesses  to  be  cogent  and  trustworthy,  therefore

concurred  with  the  judgment  of  the  trial  Court  and

dismissed the appeal of the appellant-accused. Hence the

present appeal by way of special leave.

5. We have heard learned counsel for the parties at length.

The case on behalf of the appellant as advanced by the

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learned counsel is that most of the prosecution witnesses

are  interested  witnesses,  particularly  the  eyewitnesses

belong to one family and they had a longstanding grudge

against the accused over property dispute between both

families, and hence the appellant was falsely implicated in

retaliation. The testimonies of Hira Singh (PW 7—brother

of  the  deceased),  Chameli  (PW8—sister-in-law  of  the

deceased),  Ramrati  (PW9—wife  of  the  deceased)  and

Lakhan  Singh  (PW  12—family  friend  of  the  deceased)

cannot be relied on as they were inconsistent  and lack

credibility.  Besides  they  are  contrary  to  the  medical

evidence.  According  to  the  own  deposition  of  Lakhan

Singh (PW 12—family friend of the deceased), he used to

call  the  deceased  as  ‘maama’.  He  has  stated  that  he

arrived first at the place of incident upon hearing hue and

cry of the deceased and saw the accused running away

from the scene of offence. But, as per the testimonies of

Chameli (PW 8—sister-i-law of the deceased) and Ramrati

(PW 9—wife of the deceased) who reached the place of

occurrence afterwards, the accused were still beating the

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deceased with lathis. Contrary to their statements, Dr. R.K.

Dixit (PW 13) who conducted postmortem examination on

the  body  of  the  deceased  opined  that  the  death  was

caused due to fatal injury by a sharp and pointed object or

weapon.  Nowhere  in  their  testimony,  the  eyewitnesses

specified that the accused carried sharp edged weapons,

attributing the fatal injury to the victim.  It is only before

the  trial  Court,  Ramrati  (PW  9—wife  of  the  deceased)

improvised  her  version  and  deposed  that  when  she

reached  the  place  of  occurrence,  the  accused  were

beating her husband with  lathis which were coated with

iron. Her statement cannot be made basis for convicting

the accused as she is very much an interested witness,

more so when there is  no specific  averment as to  who

caused the fatal injury on the neck, leading to the death of

the victim. It was not appropriate on the part of Courts

below to ignore the fact that the eyewitnesses deposed

that they saw the accused giving beatings to the victim

with sticks while the medical evidence suggests that the

cause  of  death  was  by  a  sharp  edged  weapon.  Before

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substantiating  the  crime  against  accused,  the  courts

below failed to scrutinize the prosecution evidence with

utmost care when the eyewitnesses are closely related.

Only by placing reliance on couched evidence,  the trial

Court recorded conviction of the accused. The High Court

also  ignored  just  principles  of  law  to  ensure  that  the

prosecution  should  prove  its  case  beyond  reasonable

doubt and in a mechanical way fastened crime with the

appellant  and  committed  serious  error  by  upholding

conviction.

6. Adverting to the above arguments, learned counsel for the

State submitted that the ocular testimony of PWs 8 and 9

remained consistent and duly corroborated by the medical

evidence. There was no suspicion for false implication of

the  accused  as  the  eyewitnesses  had  categorically

explained the beatings given by the accused leading to

the death of Mangal Singh. There was specific statement

by PW 9 (wife of the deceased) that the sticks with which

accused given beatings to the deceased were coated with

iron. The Courts below were at no fault in appreciating the

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direct  evidence  of  eyewitnesses  so  as  to  connect  the

accused  with  the  commission  of  the  crime  and  the

judgment of conviction under Section 302/34, IPC does not

call for any interference by this Court.

7. In the backdrop of what has been argued by the learned

counsel for the parties and in the light of relevant material

available  on  record  we  may  now  proceed  with  our

observations.  Admittedly  there  was  no  peace  and

harmony between the victim and accused groups as they

locked horns with each other over a longstanding dispute

dating back 30 years, relating to mutation proceedings of

some landed property.   The thrust of the prosecution to

prove the charge against the appellant was mainly on the

evidence of Chameli (PW 8)—wife of the complainant Hira

Singh and sister-in-law of the deceased, Ramrati (PW 9)—

wife  of  the deceased and Lakhan Singh (PW12)—family

friend of the deceased, to make an endeavor that in all

probability it was the accused who committed the guilt.

8. We find from the record that PW12—Lakhan Singh was the

first  person  to  reach  the  place  of  occurrence  when  an

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alarm was raised by the victim. In his statement to the

police  under  Section  161,  Cr.P.C.  it  was  unambiguously

stated in clear terms that when he reached the place of

occurrence, he saw the accused running away from the

spot. It was not mentioned in the FIR or in his statement

to  the  police  that  he  witnessed  the  accused-appellant

injuring  the  victim.   It  is  only  in  his  deposition  before

Court,  with variation to his earlier statement before the

police, he narrated that he was present at the spot at the

time of commission of offence and witnessed the accused

showering  lathi blows  on  the  deceased.  He  admittedly

made  clear  that  PWs  8  and  9  reached  the  place  of

occurrence afterwards.

9. On the other hand, PW 8 in her statement deposed that

she saw accused beating the deceased with lathis due to

which the deceased had sustained injuries on head, neck

and  blood  was  oozing  out  from  there  and  there  was

sunlight at that time. PW 9 (wife of the deceased) also

made the same statement however with some intensity

that  the  lathis were  coated  with  iron.  Veracity  of  the

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statements  of  these  two  witnesses  is  doubtful  at  the

threshold itself, as they do not tally with the statement of

PW12  who  admittedly  reached  the  place  of  occurrence

first.

10. Considering the totality of the prosecution case, we

fail to understand that at the time of such occurrence in a

small  village, when there was sunlight and PW8 & PW9

along with villagers rushed upon hearing uproar of PW12,

no  attempt  was  made  by  any  of  the  eyewitnesses  or

villagers to catch hold of the accused. This lacuna in the

prosecution case becomes stronger with the fact that in

the FIR it  was clearly mentioned,  as PW8 saying to the

complainant that upon hearing hue and cry from the field,

PW9, PW12 and other people of village rushed to the field.

Though there was no indication in the FIR on PW8 herself

rushing to the scene of offence,  it  is  however apparent

that some other people of village rushed to the place of

occurrence, but there was none among the villagers who

rushed with PWs 8 & 9 as independent eyewitness.

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11.  Thus, it is true that other than PW12—family friend

of  the  deceased,  the  prosecution  has  not  made  any

independent witness from the village people who rushed

to the place of offence along with PWs 8 & 9 on hearing

hue  and  cry  from the  field.  The  circumstances  warrant

application of  due care  and caution in  appreciating the

statements of eyewitnesses because of the fact that the

prime  eyewitnesses  are  related  inter-se  and  to  the

deceased.  Hence,  the  prosecution  has  failed  to  put  a

strong  case  as  we  cannot  attach  credence  to  the

statements of PWs 8, 9 & 12. The courts below erred in

not applying the principle of strict  scrutiny in assessing

the evidences of eyewitnesses (PWs 8, 9 & 12).

12. Further,  we  find  from  the  postmortem  report

(Annexure P1)  prepared by Dr.  R.K.  Dixit  (PW 13)  upon

examining  the  body  of  deceased,  that  there  was  a

punctured wound just below the angle of right mandible

over the right side of neck 1” x  ½” x 3” and on dissection,

he  found that  major  artery  was  punctured and trachea

was cut. There was hematoma underlying the whole side

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of  neck  and  in  the  opinion  of  Doctor,  the  injury  was

caused by a sharp piercing object. In his evidence, Doctor

(PW  13)  confirmed  that  cause  of  death  was  due  to

excessive hemorrhage form the punctured wound over the

right side of neck caused by sharp piercing object and due

to punctured major blood vessel, over right side of neck.  

13. It is on record that at the instance of the accused—

appellant, police have recovered (Ext.P7) from arhar field

the lathi allegedly used in the offence. However, nowhere

it  is  recorded that  the seized  lathi contained any sharp

edges  with  iron  coated.  Even  it  was  not  sent  for

examination of Dr. R.K. Dixit (PW 13) to ascertain whether

the  fatal  injury  could  be  resulted  by  it.  Moreover,  the

record  says  that  the  blood  on  the  bloodstained  cap  of

deceased (Ext. P9) seized from the place of occurrence did

not  tally  with  that  of  the  deceased.  Another  glaring

deficiency  is  that  Sub-Inspector  who  conducted  the

seizure  proceedings  and  prepared  the  Ext.  P7  (seizure

memo) has not been examined by the prosecution.  It is

settled  proposition  in  criminal  jurisprudence  that

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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.1 In  this  case  the  nature  of  injury,

contradiction about the time of arrival of the witnesses,

contradictions between the ocular and medical evidence,

non-examination of Police officer who conducted seizure

and subsequent improvement by one of the eye witness

casts a serious doubt on the prosecution’s case.  

14. For  the  foregoing  reasons,  we  cannot  hold  the

accused—appellant  guilty  of  the  offence  in  the  present

case. The conviction against appellant as recorded by the

trial court and upheld by the High Court is therefore set

aside and he is acquitted of the charges. He shall be set at

1

Solanki Chimanbhai Ukabhai v. State of Gujarat, AIR 1983 SC  484

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liberty  forthwith  if  not  required  to  be  detained  in

connection with any other offence.

15. The appeal stands allowed accordingly.

..................................J (N. V. RAMANA)

.................................J (PRAFULLA C. PANT)

NEW DELHI DATED:  April  25, 2017

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ITEM NO.1A                 COURT NO.10               SECTION IIA (For Judgment)                  S U P R E M E  C O U R T  O F  I N D I A                        RECORD OF PROCEEDINGS Criminal Appeal No(s).  333/2013 BALIRAJ SINGH                                      Appellant(s)                                 VERSUS STATE OF MADHYA PRADESH                            Respondent(s)

Date : 25/04/2017 This appeal was called on for pronouncement of  judgment today. For Appellant(s)                      Mr. C. S. N. Mohan Rao,Adv.                       For Respondent(s)                      Mr. Mishra Saurabh,Adv.                       

Hon'ble Mr. Justice N.V. Ramana pronounced the judgment of  the  Bench  comprising  His  Lordship  and  Hon'ble  Mr.  Justice Prafulla C. Pant.

We  cannot  hold  the  accused-appellant  guilty  of  the offence in the present case.  The conviction against appellant as recorded  by  the  trial  court  and  upheld  by  the  High  Court  is therefore set aside and he is acquitted of the charges.  He shall be set at liberty forthwith if not required to be detained in connection with any other offence.

This  appeal  stands  allowed  in  terms  of  the  signed reportable judgment.

    [SUKHBIR PAUL KAUR]          [S.S.R.KRISHNA]   A.R.-CUM-P.S.                 ASSISTANT REGISTRAR    (Signed reportable judgment is placed on the file)