IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1398 OF 2008

DURBAL … APPELLANT

VERSUS

STATE OF U.P. … RESPONDENT

JUDGMENT

B. SUDERSHAN REDDY, J.

1. This  appeal  under  Section  2(a)  of  the  Supreme  Court  

(Enlargement of Criminal Appellate Jurisdiction) Act, 1970  

is  directed  against  the  judgment  of  the  High  Court  of  

Judicature  at  Allahabad in Criminal  Appeal  No.  2514 of  

1982  whereby  the  High  Court  allowed  the  appeal  

preferred  by  the  State  and  accordingly  reversed  the  

judgment and order of acquittal passed by the trial Court  

under Sections 147, 148, 302/149, IPC. The High Court

having  convicted  the  accused,  sentenced  them  to  life  

imprisonment.

2. During the pendency of the appeal preferred by the State  

in the High Court, the accused Awadhoo (A-1) and Birbal  

(A-3) died and the appeal against them was ordered to be  

abated. This appeal is preferred by Durbal, accused No. 2.

3. In order to appreciate as to whether the judgment of the  

High Court reversing the order of acquittal, requires any  

interference  at  our  hands,  we  may  have  to  notice  the  

prosecution case in brief:

The origin of the prosecution case lies in an altercation  

between the accused and one Kaldhari  (PW 1) alleged to  

have taken place two days prior to the date of incident on  

23rd December, 1979. It is the case of the prosecution that  

one Ramdhani (not examined) in partnership with Kaldhari  

(PW 1) had obtained  lease of fishery rights in respect of a  

pond situated in Harirampur village. They had raised fish in  

the said pond. The accused were claiming right to collect fish  

from  the  said  pond.  Kaldhari  (PW  1)  along  with  his  

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companions had gone to village Harirampur for the collection  

of  the  fish  from the  pond.  The  accused  along  with  their  

associates had also assembled there to collect the fish from  

the pond. Their attempts were resisted by Kaldhari (PW 1)  

resulting in an altercation. Awadhoo (A 1), since deceased,  

threatened  Kaldhari  (PW 1)  of  his  life.  This  incident  had  

taken place in the presence of Madan (PW 4) and one Sidhu  

(not examined).

4. It  is  further  the  case  of  the  prosecution  that  on  24th  

December, 1979 at about 10.30 p.m. in the night while  

Kaldhari (PW 1) was sleeping in his house with its door  

bolted  from inside,  his  father  Abhi  Raj  (deceased)  and  

nephew Bal Kishun (deceased) were sleeping on a takhat  

in the verandah, all of a sudden, Abhi Raj and Bal Kishun  

(both  deceased)  raised  alarm  and  in  the  meanwhile,  

someone started thumping on the door of the room where  

Kaldhari (PW 1) was sleeping. As he was about to open  

the door, he could hear Awadhoo (A 1) commanding him  

to open the door. Kaldhari (PW 1) identified him from his  

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voice. Kaldhari then started raising alarm from inside the  

house. This attracted Sonai (PW 3), Sheo Kumar (PW 2)  

and Lal Mani (not examined) from the neighbourhood who  

reached the place of occurrence flashing torch lights. On  

seeing  the  witnesses,  Kaldhari  gathered  courage  and  

opened the door of his room and came into verandah. He  

saw that all the four accused accompanied by two or three  

unknown associates were assaulting his father Abhi Raj  

and nephew Bal Kishun with knives and bhalas. On finding  

that the villagers were gathering at the scene of offence,  

the miscreants  retreated and before turning away from  

the place of occurrence, they also opened fire. The police  

station, as per chik FIR is about 20 kilometers away from  

the place of occurrence. Kaldhari (PW 1) could not go to  

the police station in that night. In the early morning he  

got the information registered. At that time, Ram Awadh  

Chaudhary (PW 8), the Investigating Officer, was present  

at  the  police  station  who  having  registered  the  First  

Information  Report,  proceeded  to  the  scene  of  offence  

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and  commenced  the  investigation.  He  recorded  

statements  of  the  witnesses  and  collected  lantern  and  

torches which were the alleged source of light in which  

the witnesses claimed to have seen the occurrence. He  

also  collected  blood  stained  earth  and  other  material  

including an empty cartridge shell and some pellets of the  

shot which was fired by the miscreants on the spot. The  

dead  bodies  were  then  sent  for  autopsy  after  holding  

inquest and due formalities.

5. Dr. P.N. Awasthi (PW 5) performed the autopsy on 26th  

December, 1979 and has found the following ante mortem  

injuries on the body of Abhi Raj who was aged about 70  

years:

1. Punctured  wound  clean  cut  mrgins  1½”  x  pleural cavity deep, 3” from middle line on front  of chest.

2. Punctured wound clean cut margins 1½“ x ½“ x  peritoneal  cavity  deep,  just  below  lower  and  sternum.

3. Punctured wound with clean cut margins  1¼“ x  ¼“ x pleural cavity deep on right side front of  chest in between 3rd and 4th rib 4” from middle  line.

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4. Punctured wound with clean cut margins 1¼“ x  ¼“ x pleural cavity deep 1” below injury No. 3.

5. Punctured wound with clean cut margins 1½“ x  ½“ x pleural cavity deep, on right side chest 6”  below right axilla.

Cause of death, in his opinion was shock and hemorrhage as  

a result of ante mortem injuries and death had occurred two  

days prior to the time of autopsy.  

6. On the same day, post mortem examination of the body  

of Bal Kishun, a boy aged about 11 years revealed the  

following ante mortem injuries:

1. Abrasion ¼” x ¼” on front of left side chest 1”  below left nipple.

2. Incised  wound  ¼”  x  1/44  x  muscle  deep  on  front of right side chest ½” below right nipple.

3. Twelve  punctured  wounds  with  clean  cut  margins on back of whole of chest in an area of  8” x 8” measuring from 1½” x ½” plural cavity  deep to 1” x ¼” x pleural cavity deep, pleura  was cut underneath.

In the opinion of the Doctor, the death had occurred  

two days  before on account  of  ante  mortem injuries  

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and  the  injuries  could  have  been  caused  by  sharp  

edged weapons like knife and bhala.        

7. The prosecution in support of its case examined Kaldhari  

(Pw 1), Sheo Kumar (PW 2) and Sonai (PW 3) apart from  

Dr. P.N. Awasthy (PW 5) and Ram Avadh Chaudhary (PW  

8), the Investigating Officer.

8. The trial Court by its well reasoned judgment acquitted all  

the  accused  of  the  charges.  The trial  Court  found that  

there was no motive whatsoever for the accused to have  

attacked the deceased on that fateful night. There was no  

altercation whatsoever at the pond over fishery rights two  

days prior to the incident as alleged by the prosecution.  

The trial Court disbelieved Magan (PW 4) who allegedly  

witnessed  the  altercation.  He  was  examined  by  the  

Investigating Officer after more than two months of the  

incident. The trial Court also found that PW 4 (Magan) is  

closely related to Kaldhari (PW 1). Ramdhani, the alleged  

partner of Kaldhari (PW 1) was not examined. The trial  

Court also found the evidence of Kaldhari (PW 1) to be  

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highly doubtful. The very fact that Kaldhari (PW 1) was  

not  attacked  by  the  accused  is  a  strong  circumstance,  

according to the trial  Court,  to  doubt  the prosecution’s  

case.  The  trial  Court  noticed  the  contradictions  in  the  

statement  of  Kaldhari  and  accordingly  disbelieved  his  

evidence. The trial Court also noticed that Sonai (PW 3)  

stated that he came out of the house on hearing alarm  

raised by Abhi Raj (deceased) and found only Sheo Kumar  

(PW 2) and one Lal  Mani (not examined).  According to  

him, no other person was present at the scene of offence.  

The  trial  Court,  in  the  circumstances,  came  to  the  

conclusion  that  it  was  extremely  doubtful  as  to  the  

presence of Kaldhari (PW 1) at the scene of offence. The  

trial Court also doubted the presence of Sheo Kumar (PW  

2) at the scene of offence. The trial Court also disbelieved  

the evidence of Sonai (PW 3) who is a close relative of PW  

1. His statement is so vague and the same did not inspire  

any confidence in the trial Court to accept. The trial Court  

also  found  that  the  lantern  and  torch  lights  were  not  

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produced in the Court. The seizure memos of lantern (Ext.  

ka-2),  torches  (Ext.  Ka-3)  did  not  contain  the  crime  

number. The trial Court came to the conclusion that since  

the offence occurred in the dead of night in the last week  

of December, the witnesses could not have identified the  

assailants  except  with  the  aid  of  lantern  and  torches,  

whose seizure itself was doubtful.

9. The  High  Court,  upon  reappreciation  of  the  evidence  

available on record, mainly relying upon the evidence of  

Kaldhari  (PW  1),  came  to  the  conclusion  that  non-

production of the lantern and the torch lights in the Court  

were of no consequence.

10. A short question that arises for our consideration in this  

appeal is whether the High Court committed any error in  

relying upon evidence of Kaldhari (PW 1) since the whole  

prosecution  case  rests  upon  his  evidence?  Whether  his  

evidence  is  acceptable  based  on  which  the  High  Court  

convicted the accused?

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11. The  whole  prosecution  case  is  that  on  account  of  the  

dispute  over  fishery  rights,  the  accused  bore  a  grudge  

against  Kaldhari  (PW 1)  and even threatened him with  

dire consequences. Whether there was any dispute over  

the fishery rights itself is highly doubtful. The only person  

apart from PW 1 who speaks about the dispute is Magan  

(PW 4) who was examined by the police after more than  

two  months  of  the  occurrence.  It  is  true,  motive  for  

committing the crime pales into insignificance in a case  

where the prosecution story rests upon the evidence of  

eyewitnesses.  But,  for  the  purposes  of  evaluating  and  

appreciating the evidence, the sequence of events cannot  

be ignored.

12. Be it as it may, there was no enmity whatsoever between  

the  deceased  and  the  accused.  When  the  suggested  

enmity, if at all, was between the accused and Kaldhari  

(PW 1), there does not appear to be any reason as to why  

the  accused  should  attack  the  deceased  and  leave  

Kaldhari unscratched. Admittedly, there was not even an  

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attempt  by  the  accused  to  attack  Kaldhari.  This  story  

somehow appears unbelievable and difficult to accept.  At  

any rate, there is no evidence adduced by prosecution in  

this regard. Admittedly Awadhoo (A-1), on reaching the  

scene  of  occurrence  on  that  fateful  night,  challenged  

Kaldhari (PW 1) to open the door. Kaldhari woke up and  

reached  the  door  with  the  torch  and  lathi in  his  hand  

raising  alarm.  On hearing  the cries,  Sonai  (PW 3)  and  

Sheo Kumar (PW 2) reached the spot with torch lights in  

their hands. Kaldhari opened the door only after the said  

witnesses reached the scene of offence and saw all  the  

accused along with two or three persons assaulting his  

father Abhi Raj and Bal Kishun with knives and spears.  

Kaldhari (PW 1) makes an omnibus allegation of all the  

accused of their  attacking the deceased indiscriminately  

with the weapons in their hands. If PWs 1, 2 and 3 were  

present at the scene of offence as stated by Kaldhari (PW  

1), there is no explanation forthcoming as to why three of  

them  put  together  could  not  resist  the  accused  in  

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attacking the deceased.  

13. Sheo Kumar (PW 2) in his evidence stated that two of the  

accused were armed with knives and two with lathis. He is  

alleged to have witnessed the incident with the assistance  

of  the torch lights  in his  hand.  He also  levels  omnibus  

allegations  against  all  the  accused  that  they  were  

inflicting knife and spear injuries on the deceased. It is in  

his  evidence  that  about  two  or  three  persons  were  

standing outside the verandah while actually the accused  

were inflicting knife and spear injuries over the victims.  

Those other individuals remained unidentified. According  

to him, he himself and PWs 1 and 3 were also armed with  

lathis but no attempts were made to resist the accused  

who  are  indulging  in  the  acts  of  assault.  In  the  

circumstances,  it  is  doubtful  to  believe  PW  2  to  have  

actually  witnessed  the  incident  and  recognized  the  

accused with the help of torch lights.

14. PW 3 is one Sonai who stated in his evidence that he had  

purchased the house along with Kaldhari (PW 1) from one  

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Swaminath Chaudhary. He speaks about the presence of  

Sheo Kumar (PW 2) and one Lal Mani (not examined) and  

does  not  speak  about  presence  of  any  other  person  

including that of PW 1 at the scene of offence. He also  

made  indefinite  allegations  against  all  the  accused  as  

inflicting knife and spear blows on the victims.

15. It is also required to note that all the eyewitnesses had  

stated in their evidence that lantern was burning in the  

verandah and Kaldhari (PW 1), Sheo Kumar (PW 2) and  

Sonai (PW 3) were having torch lights in their hands and  

only with the help of the lantern and the torch lights they  

could recognize and identify  the assailants.  The lantern  

and the torch lights though were alleged to have been  

seized  vide  seizure  mahazar  Exts.  Ka-2  and  Ka-3  

respectively, were not produced in the Court. The seizure  

memos  Ext.  Ka-2  and  Ka-3  did  not  contain  the  crime  

number  and  other  recovery  particulars.  In  the  

circumstances, it becomes highly doubtful as to whether  

those torch lights and lantern were actually seized during  

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the course of  investigation by the Investigating Officer.  

The Investigating Officer (PW 8) did not explain as to why  

the crime number was not noted on Ext. Ka-2 and Ka-3  

and as to why the material objects if at all seized, were  

not produced in the Court. The very fact that the lantern  

and torch lights were pressed into service for the purpose  

of  identifying the accused,  itself  suggests that it  was a  

pitched dark night during the mid winter and it was not  

possible  to  identify  the  assailants  without  the  aid  of  

lantern  and  torch  lights.  It  is  highly  doubtful  as  to  

whether PWs 1, 2 and 3 had actually torch lights in their  

hands as stated by them, in the absence of their recovery  

details  in  the  seizure  memo  and  their  not  production  

before the Court. Moreover, Kaldhari  (PW 1) refused to  

state  as  to  whether  the  assailants  were  covering  their  

faces  with  chadar. His  evidence  does  not  inspire  any  

confidence.

16. These all are the factors which give rise to doubt in our  

minds as to the presence of PWs 2 and 3 at the scene of  

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offence. The trial Court rightly entertained the doubt and  

accordingly gave the benefit of doubt to the accused. It is  

a plausible view taken by the trial Court which could not  

be held to be a perverse one. Such a view has been taken  

by the trial Court after appreciation of the evidence. The  

High Court, in our considered opinion, ought not to have  

interfered  with  the  judgment  of  the  trial  Court  merely  

because there is a possibility  of  taking a different view  

other than the one taken by the trial Court. The appellant,  

in  our  considered  opinion,  is  entitled  to  the  benefit  of  

doubt.  It would be unsafe to convict the accused on the  

evidence which is not free from doubts.

17.For the aforesaid reasons, the impugned judgment of the  

High Court is set aside and judgment of the trial  Court  

shall stand restored. The appellant is thus acquitted of all  

the charges and his conviction and sentence is accordingly  

set aside. He may be set free forthwith unless otherwise  

required in any other case.

18.The appeal is allowed accordingly.

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     …………………………………………..J.        (B. SUDERSHAN REDDY)

NEW DELHI,       ………………………………………….J.  JANUARY 25, 2011.    (SURINDER SINGH NIJJAR)

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