Page 1

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPEALATE JURISDICTION

CRIMINAL     APPEAL     NO.     1042     OF     2002   

Kathi Bharat Vajsur & Anr.           ...Appellants

Versus

State of Gujarat      ...Respondent

J     U     D     G     M     E     N     T   

H.L.     DATTU,     J.   

1) This appeal is directed against the judgment and order  

passed by the Division Bench of the High Court of  

Gujarat in Criminal Appeal No. 744/1985 dated  

15.07.2002. By the impugned judgment and order, the High  

Court has reversed the order of acquittal passed by the  

Additional Sessions Judge, Amreli in Sessions Case No.  

22/84 and convicted the two appellants for the offence  

punishable under section 302 read with section 34 of the  

Indian Penal Code, 1860 [“the IPC”  for short],  

sentencing them to imprisonment for life and a fine of `  

1000/- each, in default of which they are directed to

Page 2

further undergo rigorous imprisonment for six months.  

2) At the outset, we note that initially there were three  

accused before the Trial Court, and they were all  

acquitted for the offences alleged against them.  During  

the pendency of the appeal before the High Court, A1  

(Kathi Fakira Vajsur) expired, and the appeal stood  

abated as against him. The other two accused, namely A2  

(Kathi Bharat Vajsur) and A3 (Kathi Ramku Vajsur) are  

prosecuting this appeal. During the pendency of this  

appeal, this Court had enlarged the appellants on bail  

vide order dated 03.12.2002.  

3) The factual scenario giving rise to the present appeal  

is as follows:

The case of the prosecution is that, a part of the  

adjoining land of the primary school in village Gigasan  

was leased out to A1, where he had constructed a storage  

tank for storage of kerosene. It was resolved by the  

Gigasan Panchayat to give the road between the school and  

the tank to the school for their use.  Therefore,  

Panchayat had proposed to construct a wall on the land so  

granted.  Prior to the date of the incident, when one

Page 3

Amra Pitha and other labourers had commenced the work on  

the said plot, A1 protested to it and did not permit them  

to carry out the proposed work, due to which Amra Pitha  

had to complain to the Sarpanch Jagu Dada and the  

Secretary of the Panchayat Shri. Kanubhai about the  

interference caused by A1. On the morning of the  

incident, i.e. 30th March 1984, when Jagu Dada (PW6), Mulu  

Dada (deceased) and Dhoha Vasta (Informant) informed the  

President of the Taluka Development Officer about the  

attitude of A1 towards Amra Pitha and other labourers, he  

directed Mulu Dada to ignore the threat and complete the  

construction as resolved by the Panchayat.  

4) On the same day, at about 3.30 pm, PW6, the deceased  

and two labourers, namely Jetha (PW8) and Natha (PW7)  

went to the plot and began the construction work as  

directed and they were assisted by Manjibhai and Patel  

who were teachers working in the Primary School. When  

they began digging for laying the foundation, A1 along  

with his brothers A2 and A3 came near the plot and asked  

them not to dig the pit. After verbal exchange, A1 took  

out a double bore tamancha from his pocket and pointed  

at PW6, and threatened him to leave. On his refusal to

Page 4

leave, A1 opened fire which caused injury on his right  

hand and thereafter, again fired on the chest of PW6.  

Meantime, A2 also fired from tamancha on the person of  

Mulu Dada due to which Mulu Dada fell down, after which  

A3 caused injury on the head with an axe which he was  

carrying with him. Thereafter they fled from the place  

of incident. Due to the injuries caused, Mulu Dada died  

on the spot. Immediately, PW5 reported the incident to  

the Police Station, Dhari and on the basis of the  

written report the Station Officer took-up the  

investigation and on completion thereof charge-sheet was  

filed against the accused persons for the offences  

punishable under Sections 302, 307 read with Section 34  

of the Indian Penal Code (for short ‘the IPC’).

5) To substantiate its accusation, prosecution examined  

several witnesses to prove its case before the Trial  

Court. The Trial Court, after considering the entire  

evidence on record, acquitted the accused persons, on  

the ground that the prosecution failed to prove its case  

beyond reasonable doubt.

6) Aggrieved by the same, the State preferred an appeal

Page 5

before the Gujarat High Court. The Court, after  

examining the entire evidence on record, has set aside  

the judgment and order passed by the Trial Court, and  

convicted A2 and A3 under Section 302 read with Section  

34 of the IPC, sentencing them to life imprisonment and  

a fine of ` 1000/- each. However, as far as A1 was  

concerned, the appeal had abated due to his death.  

Aggrieved by the conviction and sentence passed by the  

High Court, the accused -appellants are before us in  

this appeal.

7) Shri. Dholakia, learned senior counsel, submitted that  

the Trial Court was justified in acquitting the accused  

persons, as the Trial Court had recorded that there are  

material contradictions in the statements of PW5 and PW6  

recorded by the police under section 161 of the Code of  

Criminal Procedure, 1973 [hereinafter referred to as  

“the Code”] and the evidence that was tendered in the  

Court during the trial.  He further submits that the  

tamancha allegedly used, was a single barrel gun, which  

needs to be reloaded after firing a single shot and that  

there was no evidence of such reloading. By referring to  

the testimony of the ballistic expert (PW 18), the

Page 6

learned senior counsel would state that the answer given  

by him was not conclusive whether such a fire arm could  

have been used.  He would submit that since the  

conviction and sentence is imposed under Section 302 r/w  

Section 34, it was required for the prosecution to prove  

which injury was caused by which accused and which  

injury was fatal to the life of the accused. He would  

emphasize that there must be a live link between all the  

alleged events, in order to prove the guilt of the  

appellants beyond reasonable doubt, which he would  

submit, is missing in this case.

8) The four main contradictions/discrepancies that Shri.  

Dholakia points out in the prosecution story are: (a)  

The eye witnesses (PW5 and PW6), when they were shown  

the arms recovered, emphatically denied that those were  

not the arms used on the date of the incident; (b) the  

sequence of the shooting by A1 and A2, and who shot whom  

was not clear from the testimony of PW5 and PW6 when  

read along with their statements recorded under section  

161 of the Code; (c) that the clothes of PW5, which were  

seized and who is said to have carried the body of the  

deceased, had absolutely no blood stains on his clothes;

Page 7

and  (d) the conduct of the injured witness (PW6), in  

running away from the scene of the incident to a room  

and locking himself, and then running back to the scene  

of the incident, was suspicious and abnormal. Shri.  

Dholakia would then submit that if two views are  

possible, then the one that was in favour of the accused  

requires to be adopted. In conclusion, it is submitted  

that the Trial Court, which had observed the demeanour  

of the witnesses and considered all the facts and  

circumstances, had rightly acquitted the appellants of  

all charges. It is also contended that in the absence of  

any perversity or omission to consider material evidence  

or apparent error in law, the judgment of the Trial  

Court was not open to interference in an appeal against  

acquittal.  

9) Smt. Madhavi Divan, learned counsel appearing for the  

respondent-State would fairly submit that some  

contradictions or discrepancies could be found in the  

evidence recorded, but would contend that if the  

evidence is read as a whole, there would not be even an  

iota of doubt left as to the guilt of the appellants.  

She would further submit that even if portions of the  

evidence of the hostile witnesses are eschewed from

Page 8

consideration, still it is possible to arrive at the  

same conclusion as has been done by the High Court. The  

learned counsel would rely on the testimony of PW6, who  

is an injured witness to establish the presence of all  

the three accused at the time of the incident. PW6 has  

further described the kind of injuries that he had  

sustained, which, she would submit would corroborate  

with the medical evidence as well as the testimony of  

the doctor who had treated the injured witness. The  

learned counsel would submit that though, PW6 may be  

confused about the sequence of the gun shots, there is  

absolutely no dispute as to who fired the shots at the  

deceased person. Smt. Divan would further refer to the  

evidence of PW12 (Manjibhai), a teacher in the Primary  

School, who has also testified that the three accused  

were present at the scene of occurrence and they were  

carrying tamanchas and one of them an axe, and that  

there was an heated altercation between the accused  

persons and the deceased (PW5 and PW6), when he (PW12)  

left the scene. She would also state that he had heard  

the gun shots, and when he came out, saw the corpse of  

the deceased in pool of blood. The learned counsel would  

then refers to the evidence of PW7 and PW8, the

Page 9

labourers who were present at the place of the incident,  

who have also testified that the accused had come to the  

place with tamanchas and axe, and that there was  

altercation between the accused and the deceased, PW5  

and PW6. They also testified that they had heard the gun  

shots. She would then refer to the evidence of PW16  

(Lakha), who had also heard the gun shots fired, and was  

told about the incident by PW5.

10) Smt. Divan would fairly submit that though PW7,  

PW8 and PW12 are all declared hostile, yet, she would  

state that by reading their evidence with the evidence  

of PW5, PW6 and PW16, it is clear that the deceased, PW5  

and PW6 were present at the place of the incident, and  

so were the accused appellants armed with tamanchas and  

axe. She would further submit that the factum of an  

altercation between the two parties was also established  

from the evidence on record, and that of the gun shots  

fired. With this evidence, Smt. Divan would submit, it  

is clear beyond any doubt that the death of the deceased  

was caused by the accused appellants, and strongly  

refuted the contention of Shri. Dholakia that two views  

were possible, stating that on this evidence no other

Page 10

view was possible, apart from the view taken by the High  

Court.  

11) Smt. Madhavi Divan, learned counsel, would submit that  

this Court must not give undue importance to the non-

recognition of the weapons by PW5 and PW6 during the  

trial. According to the learned counsel, the panch  

witnesses have identified the weapons recovered at the  

instance of the accused during the trial. She would, for  

this purpose, refers to the evidence of PW10  

(Vallabhbhai), who not only narrated the place and  

manner in which the axe and the other weapons were  

recovered at the instance of A2, but also identified the  

same when shown the same in Court. She would further  

state that it is reasonable for the eyewitnesses, one of  

whom was injured in the incident, not to have seen the  

weapons in the commotion of the incident properly. To  

sum up, the learned  counsel submits that the High  

Court, after  re-appreciating the entire evidence on  

record, has come to the conclusion that the Trial Court  

has fallen in error in magnifying the  minor  

contradictions to arrive at a conclusion that the  

prosecution has failed to prove the guilt of the accused

Page 11

beyond all reasonable doubt.

12) The circumstances in which an appellate court will  

interfere with the finding of the Trial Court are now  

well settled by catena of decisions of this Court. In  

Dwarka Dass v. State of Haryana, (2003) 1 SCC 204, the  

dicta of all these decisions has been crystallized thus:

“2. While there cannot be any denial of the factum  that the power and authority to apprise the  evidence in an appeal, either against acquittal or  conviction stands out to be very comprehensive and  wide, but if two views are reasonably possible, on  the state of evidence: one supporting the  acquittal and the other indicating conviction,  then and in that event the High Court would not be  justified in interfering with an order of  acquittal, merely because it feels that it,  sitting as a trial court, would have taken the  other view. While re-appreciating the evidence,  the rules of prudence requires that the High Court  should give proper weight and consideration to the  views of the trial Judge...”

13) In the case of Narinder Singh v. State of Punjab  

2000 Crl. LJ 3462 (SC), this Court has held that the  

High Court is entitled to re-appreciate the evidence if  

it is found that the view taken by the acquitting Court  

was not a possible view or that it was a perverse or  

infirm or palpably erroneous view or the Trial Court  

taken into consideration inconsequential circumstances

Page 12

or has acted with material irregularity or has rejected  

the evidence of eye-witnesses on wrong assumptions.

14) It is also now well settled that in a criminal trial  

the guilt of the accused must be proved beyond  

reasonable doubt, in order to convict him. This court in  

the case of State of U.P. v. Krishna Gopal, (1988) 4 SCC  

302, held:

“25. A person has, no doubt, a profound right not  to be convicted of an offence which is not  established by the evidential standard of proof  beyond reasonable doubt. Though this standard is a  higher standard, there is, however, no absolute  standard. What degree of probability amounts to  “proof”  is an exercise particular to each case.  Referring to the interdependence of evidence and  the confirmation of one piece of evidence by  another a learned Author says:

“The simple multiplication rule does not apply  if the separate pieces of evidence are  dependent. Two events are dependent when they  tend to occur together, and the evidence of  such events may also be said to be dependent.  In a criminal case, different pieces of  evidence directed to establishing that the  defendant did the prohibited act with the  specified state of mind are generally  dependent. A juror may feel doubt whether to  credit an alleged confession, and doubt  whether to infer guilt from the fact that the  defendant fled from justice. But since it is  generally guilty rather than innocent people  who make confessions, and guilty rather than  innocent people who run away, the two doubts  are not to be multiplied together. The one  piece of evidence may confirm the other.”

Doubts would be called reasonable if they are free  from a zest for abstract speculation. Law cannot

Page 13

afford any favourite other than truth. To  constitute reasonable doubt, it must be free from  an over-emotional response. Doubts must be actual  and substantial doubts as to the guilt of the  accused person arising from the evidence, or from  the lack of it, as opposed to mere vague  apprehensions. A reasonable doubt is not an  imaginary, trivial or a merely possible doubt; but  a fair doubt based upon reason and common sense.  It must grow out of the evidence in the case.

26. The concepts of probability, and the degrees  of it, cannot obviously be expressed in terms of  units to be mathematically enumerated as to how  many of such units constitute proof beyond  reasonable doubt. There is an unmistakable  subjective element in the evaluation of the  degrees of probability and the quantum of proof.  Forensic probability must, in the last analysis,  rest on a robust common sense and, ultimately, on  the trained intuitions of the Judge. While the  protection given by the criminal process to the  accused persons is not to be eroded, at the same  time, uninformed legitimisation of trivialities  would make a mockery of administration of criminal  justice.”

15) In the case of Gurbachan Singh v. Satpal Singh,  

(1990) 1 SCC 445, it is observed:

“4……. The standard adopted must be the standard  adopted by a prudent man which, of course, may  vary from case to case, circumstances to  circumstances. Exaggeration devotion to the rule  of benefit of doubt must not nurture fanciful  doubts or lingering suspicions and thereby destroy  social defence. Justice cannot be made sterile on  the plea that it is better to let hundred guilty  escape than punish an innocent. Letting guilty  escape is not doing justice, according to law.

5. The conscience of the court can never be bound  by any rule but that is coming itself dictates the  consciousness and prudent exercise of the

Page 14

judgment. Reasonable doubt is simply that degree  of doubt which would permit a reasonable and just  man to come to a conclusion. Reasonableness of the  doubt must be commensurate with the nature of the  offence to be investigated.”

16) Now coming back to the facts of the case, it is not in  

dispute that in the incident, said to have taken place  

on 30th March, one person is killed and the other person  

is seriously injured. In the trial, the injured has  

fully supported the case of the prosecution. His  

evidence finds support from the evidence of PW6 and the  

evidence of Doctor, PW 16. While hearing the learned  

counsel appearing for the parties, we have also perused  

the entire evidence on record, we are of the view that  

Trial Court had erred in holding that the prosecution  

had not been able to prove the case beyond reasonable  

doubt. We are inclined to agree with the submission of  

Smt. Madhavi Divan, learned counsel appearing for the  

respondent, that by relying on the evidence of PW5, PW6,  

PW7, PW8, PW12 and PW 16, there can be no doubt that the  

A1, A2 and A3 were present at the place of the incident  

and were carrying tamanchas and axe, and that, there was  

an altercation between the accused persons and PW5, PW6  

and the deceased, and that gun shots were fired and the  

deceased died because of the gun shot injuries and the

Page 15

blow on the head with the axe by A3.  Perhaps the Trial  

Court took a hyper-technical view by primarily  

concentrating on minor contradictions to hold that the  

prosecution has failed to prove the guilt of the accused  

beyond reasonable doubt. We are not in agreement with  

the findings and conclusions reached by the Trial Court.

17) The argument canvassed by Shri. S.K. Dholakia, learned  

senior counsel, appearing for the appellants, that there  

was material discrepancies in the evidence adduced by  

the eyewitnesses PW5 and PW6, with regard to the  

sequence of shots fired and who shot whom. This, the  

learned senior counsel would submit, is enough to punch  

a hole in the prosecution story. He would further state  

that the High Court has brushed aside these  

contradictions merely terming them as minor  

contradictions. Per contra, Smt. Divan, learned counsel  

appearing for the respondent, while not denying that  

there were some discrepancies in the evidence given by  

PW5 and PW6, would state that on a complete reading of  

the evidence, there is no doubt about the guilt of the  

accused. We are inclined to agree with the learned  

counsel for the respondent.

Page 16

18) In the case of Leela Ram v. State of Haryana, (1999) 9  

SCC 525, this Court held:

“12. It is indeed necessary to note that one  hardly comes across a witness whose evidence does  not contain some exaggeration or embellishment —  sometimes there could even be a deliberate attempt  to offer embellishment and sometimes in their  overanxiety they may give a slightly exaggerated  account. The court can sift the chaff from the  grain and find out the truth from the testimony of  the witnesses. Total repulsion of the evidence is  unnecessary. The evidence is to be considered from  the point of view of trustworthiness. If this  element is satisfied, it ought to inspire  confidence in the mind of the court to accept the  stated evidence though not however in the absence  of the same.”

19) This Court, in the case of Sunil Kumar Sambhudayal  

Gupta (Dr.) v. State of Maharashtra, (2010) 13 SCC 657,  

summarized the law on material contradictions in  

evidence thus:

“Material contradictions

30. While appreciating the evidence, the court has  to take into consideration whether the  contradictions/omissions had been of such  magnitude that they may materially affect the  trial. Minor contradictions, inconsistencies,  embellishments or improvements on trivial matters  without effecting the core of the prosecution case  should not be made a ground to reject the evidence  in its entirety. The trial court, after going  through the entire evidence, must form an opinion  about the credibility of the witnesses and the  appellate court in normal course would not be  justified in reviewing the same again without  justifiable reasons. (Vide State v. Saravanan.)

Page 17

31. Where the omission(s) amount to a  contradiction, creating a serious doubt about the  truthfulness of a witness and the other witness  also makes material improvements before the court  in order to make the evidence acceptable, it  cannot be safe to rely upon such evidence. (Vide  State of Rajasthan v. Rajendra Singh.)

32. The discrepancies in the evidence of  eyewitnesses, if found to be not minor in nature,  may be a ground for disbelieving and discrediting  their evidence. In such circumstances, witnesses  may not inspire confidence and if their evidence  is found to be in conflict and contradiction with  other evidence or with the statement already  recorded, in such a case it cannot be held that  the prosecution proved its case beyond reasonable  doubt. (Vide Mahendra Pratap Singh v. State of  U.P.)

33. In case, the complainant in the FIR or the  witness in his statement under Section 161 CrPC,  has not disclosed certain facts but meets the  prosecution case first time before the court, such  version lacks credence and is liable to be  discarded. (Vide State v. Sait.)

34. In State of Rajasthan v. Kalki, while dealing  with this issue, this Court observed as under:  (SCC p. 754, para 8)

“8. …  In the depositions of witnesses there  are always normal discrepancies however honest  and truthful they may be. These discrepancies  are due to normal errors of observation,  normal errors of memory due to lapse of time,  due to mental disposition such as shock and  horror at the time of the occurrence, and the  like. Material discrepancies are those which  are not normal, and not expected of a normal  person.”

35. The courts have to label the category to which  a discrepancy belongs. While normal discrepancies  do not corrode the credibility of a party's case,  material discrepancies do so. (See Syed Ibrahim v.  

State of A.P.6 and Arumugam v. State.)

36. In Bihari Nath Goswami v. Shiv Kumar Singh  this Court examined the issue and held: (SCC p.

Page 18

192, para 9)

“9. Exaggerations per se do not render the  evidence brittle. But it can be one of the  factors to test the credibility of the  prosecution version, when the entire evidence  is put in a crucible for being tested on the  touchstone of credibility.”

37. While deciding such a case, the court has to  apply the aforesaid tests. Mere marginal  variations in the statements cannot be dubbed as  improvements as the same may be elaborations of  the statement made by the witness earlier. The  omissions which amount to contradictions in  material particulars i.e. go to the root of the  case/materially affect the trial or core of the  prosecution case, render the testimony of the  witness liable to be discredited.”

20) Moreover, by reading the evidence of the PW1  

(Kamlesh), PW2 (Dr. Savjibhai) and PW3 (Dr.  

Shobhanaben), the injuries on PW6 and the deceased have  

come to light. These injuries are consistent with the  

testimony of the evidence tendered by the eyewitnesses,  

namely PW5 and PW6. This Court, in the case of Rakesh v.  

State of M.P.,(2011) 9 SCC 698, held:

“13. It is a settled legal proposition that the  ocular evidence would have primacy unless it is  established that oral evidence is totally  irreconcilable with the medical evidence. More so,  the ocular testimony of a witness has a 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

Page 19

evidence if proved, the ocular evidence may be  disbelieved. (Vide State of U.P. v. Hari Chand,  Abdul Sayeed v. State of M.P. and Bhajan Singh v.  State of Haryana.)”

21) When the medical evidence is in consonance with the  

principal part of the oral/ocular evidence thereby  

supporting the prosecution story, there is no question  

of ruling out the ocular evidence merely on the ground  

that there are some inconsistencies or contradictions in  

the oral evidence. We are not inclined to agree with  

Shri. Dholakia on this count.

22) Shri. Dholakia would lay emphasis on the unusual  

conduct of PW6 after the occurrence of the incident and  

therefore submits that the learned trial judge was  

justified in disbelieving the evidence of PW6.  We  

cannot agree. This Court, in the case of Appabhai v.  

State of Gujarat, 1988 Supp SCC 241, held:

“11.… Experience reminds us that civilized people  are generally insensitive when a crime is  committed even in their presence. They withdraw  both from the victim and the vigilante. They keep  themselves away from the court unless it is  inevitable. They think that crime like civil  dispute is between two individuals or parties and  they should not involve themselves. This kind of  apathy of the general public is indeed  unfortunate, but it is there everywhere whether in  village life, towns or cities. One cannot ignore

Page 20

this handicap with which the investigating agency  has to discharge its duties. The court, therefore,  instead of doubting the prosecution case for want  of independent witness must consider the broad  spectrum of the prosecution version and then  search for the nugget of truth with due regard to  probability if any, suggested by the accused. The  court, however, must bear in mind that witnesses  to a serious crime may not react in a normal  manner. Nor do they react uniformly. The horror  stricken witnesses at a dastardly crime or an act  of egregious nature may react differently. Their  course of conduct may not be of ordinary type in  the normal circumstances. The court, therefore,  cannot reject their evidence merely because they  have behaved or reacted in an unusual manner. In  Rana Pratap v. State of Haryana Chinnappa Reddy,  J., speaking for this Court succinctly set out  what might be the behaviour of different persons  witnessing the same incident. The learned Judge  observed: [SCC p. 330, SCC (Cri) p. 604, para 6]

“Every person who witnesses a murder reacts in  his own way. Some are stunned, become  speechless and stand rooted to the spot. Some  become hysteric and start wailing. Some start  shouting for help. Others run away to keep  themselves as far removed from the spot as  possible. Yet others rush to the rescue of the  victim, even going to the extent of counter- attacking the assailants. Every one reacts in  his own special way. There is no set rule of  natural reaction. To discard the evidence of a  witness on the ground that he did not react in  any particular manner is to appreciate  evidence in a wholly unrealistic and  unimaginative way.””

23) We are in agreement with the above observations. When  

an eyewitness behaves in a manner that perhaps would be  

unusual, it is not for the prosecution or the Court to

Page 21

go into the question as to why he reacted in such a  

manner. As has been rightly observed by his lordship  

O. Chinnappa Reddy, J., in Rana Pratap’s case (supra.)  

there is no fixed pattern of reaction of an eyewitness  

to a crime. When faced with what is termed as ‘an  

unusual reaction’ of an eyewitness, the Court must only  

examine whether the prosecution story is in anyway  

affected by such reaction. If the answer is in the  

negative, then such reaction is irrelevant. We are  

afraid that the unusual behaviour of the injured  

eyewitness, PW6, will not, in anyway, aid the appellants  

to punch a hole on to the prosecution story.

24) Shri. Dholakia, learned senior counsel, would  

emphasis on the fact that when the eyewitnesses PW5 and  

PW6 were shown the weapons recovered, they explicitly  

stated that these were not the weapons used for by the  

accused. He would state that this was a major  

discrepancy in the case of the prosecution. In support  

of this, he would rely on the case of Mahendra Pratap  

Singh v. State of UP, (2009) 11 SCC 334. In reply, Smt.  

Divan, learned counsel, would submit that it would be  

more reliable to rely on the evidence of the Panch

Page 22

witness (PW10) and the PSI (PW20) than on the  

eyewitnesses for the purpose of identifying the weapons,  

especially when the weapons were recovered at the  

instance of the accused persons. She would further state  

that in the commotion of the incident, it is possible  

that the eyewitnesses might not have clearly seen the  

weapons. We find that the argument of the learned  

counsel for the respondent is reasonable and therefore,  

we accept the same.  

25) When the entire evidence on record is considered,  

the fact that the eyewitnesses did not recognize the  

weapons used, makes no difference to the prosecution  

story.  

26) We are afraid the decision of this Court in the  

case of Mahendra Pratap Singh (supra.) cited by Shri.  

Dholakia would not help the appellants, as in the case  

not only were the weapons used identified, but also the  

evidence on record did not inspire confidence in the  

story of the prosecution. In that case, this Court came  

to conclude that two views were possible, and therefore  

gave the benefit of the same to the accused.  In the

Page 23

instant case, cumulative reading of the entire evidence  

makes the prosecution story believable, thereby proving  

the guilt of the accused appellants beyond any doubt.  

The High Court in the impugned judgment has correctly  

appreciated the evidence on record, and we do not find  

any infirmity in the same, therefore we uphold the  

conviction of guilt and sentence imposed by the High  

Court.  

27) In the light of the above discussion, we see no merit  

in the appeal and accordingly, the same is dismissed.  

The appellants have been enlarged on bail during the  

pendency of this appeal before this Court. Therefore,  

the Jurisdictional Jail Superintendent is directed that  

the appellants herein be taken into custody forthwith to  

serve out the sentence of life imprisonment.  

..........................J.

(H.L.DATTU)

..........................J.

(ANIL R. DAVE)

NEW DELHI,  May 08, 2012.

Page 24