MAHAVIR SINGH Vs STATE OF MADHYA PRADESH
Bench: A.K. SIKRI,N.V. RAMANA
Case number: Crl.A. No.-001141-001141 / 2007
Diary number: 15236 / 2007
Advocates: S. R. SETIA Vs
C. D. SINGH
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CORRIGENDUM
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1141 OF 2007
MAHAVIR SINGH … APPELLANT
VERSUS
STATE OF MADHYA PRADESH … RESPONDENT
JUDGMENT
N.V. RAMANA, J.
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1. This appeal arises out of the judgment and order dated 19th March,
2007 passed by the High Court of Madhya Pradesh, Bench at
Gwalior in Criminal Appeal No. 36 of 1996 whereby the High Court
has partly allowed the appeal preferred by the State by confirming
the judgment of the Trial Court for the offence under Section 148
of IPC and convicted the appellant herein for the offence under
Section 302, IPC and sentenced him to undergo imprisonment for
life.
2. The brief facts of the case as culled out from the case of the
prosecution are that on 26th December, 1987 at about 1 p.m. while
Gambhir Singh (PW 7) (brother of the deceased) was having lunch
at his home, the appellant along with a group of co-accused
persons, each armed with deadly weapons rushed to his house
hurling abusive filthy words and picked up a quarrel with his
brother Jagannath Singh (deceased) who was sitting outside on a
platform (Chabutara) along with his nephew Bir Singh (PW 11).
When Jagannath Singh (deceased) raised objection to their
behavior, the appellant fired a gunshot in the abdomen of the
deceased as a result of which he fell down on the ground and
succumbed to the injuries.
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3. Gambhir Singh (P.W. 7) carried the body of the deceased to the
police station, Lahar on a bullock cart and lodged the FIR
(Annexure P-1) at 4.15 PM on the same day. Dilip Singh Yadav
(PW-13) prepared inquest memo and Dr. A. K. Upadhyay (P.W. 12)
conducted autopsy on the dead body. On the next day, Dilip Singh
Yadav (PW 13) seized blood stained soil and plain soil from the
place of occurrence, as per seizure memo. He also seized a gun,
12 live cartridges and 9 empty cartridges from the possession of
appellant Mahavir Singh, an axe from Sobaran (co-accused) and a
lathi from Kanched Singh (another co-accused) as per seizure
memo and sent them to the Forensic Science Laboratory at Sagar.
Consequently, statements of witnesses were recorded under
section 161 of Cr.P.C., spot map was prepared and Charge-sheet
was filed against the appellant under sections 302, 147, 148 and
149 of the IPC in the Court of Judicial Magistrate First Class,
Lahar who committed the case to Court of Sessions for Trial. The
Trial Court framed charges u/s 302 and 148 of IPC against the
appellant and under sections 148, 302/149 of IPC against
co-accused. All the accused pleaded not guilty and claimed to be
tried. To prove the guilt of the accused, the prosecution has
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examined 13 witnesses and marked several Exhibits while the
accused examined none in defence and no exhibits were marked
on his behalf.
4. The Trial Court by its judgment and order dated 30 th November,
1994 acquitted the appellant from the alleged offences mainly on
the ground that there are contradictions in the evidence of
eyewitnesses to that of medical evidence, prosecution has failed to
prove beyond reasonable doubt formation of unlawful assembly
with a motive of committing murder of the deceased and also
failed to establish that the bullet had been fired with the firearm
seized from the appellant.
5. Dissatisfied with the Judgment of the Trial Court, the State
preferred an appeal before the High Court claiming that the
judgment of the Trial Court is perverse and illegal inasmuch as it
did not appreciate the prosecution evidence in right perspective
and ignored the evidence of the eyewitnesses. The High Court, on
a reanalysis of evidence of prosecution witnesses and other
material available on record came to the conclusion that the Trial
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Court was right in acquitting the other co-accused persons but
found fault with the acquittal of the appellant under Section 302
IPC. The High Court, therefore, partly allowed the appeal by
confirming the judgment of the Trial Court in respect of the charge
under Section 148 and convicted the appellant herein for the
offence under Section 302, IPC and sentenced him to undergo
imprisonment for life. Aggrieved by the Judgment of the High
Court, the appellant approached this Court in appeal.
6. Learned counsel for the appellant submitted that the Trial Court
rightly acquitted the appellant, after elaborately considering the
evidence on record, upon coming to the conclusion that there is
lack of credibility in the testimony of the prosecution witnesses,
and, in particular, the medical and ocular testimonies are
conflicting; there was considerable delay on the part of
Investigating Officer in recording the evidences of alleged
eyewitnesses inasmuch as statements by none of the
eyewitnesses were recorded on the day of occurrence of the
incident.
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7. In the background of this factual matrix, learned counsel for the
appellant has advanced his arguments that since the appellant
and victim parties have prior enmity over some pending criminal
cases, the family members of the deceased, i.e., Gambhir Singh
(PW 7), Shanti Devi (PW 8), Bir Singh (PW 11) in connivance and
with the help of a pocket witness Madho Singh (PW 9) concocted
the story, by projecting himself as an eyewitness, and falsely
implicated the appellant. According to him, this fact is clearly
established with the contradictions in the medical evidence and the
unreliable evidence of the alleged interested eyewitness. The
presence of Gambhir Singh (PW 7), at the time of occurrence, as
heavily relied upon by the prosecution, proves to be false in the
light of evidence of Bir Singh (PW 11) who nowhere in his
testimony mentioned that Gambhir Singh (PW 7) alone came out
of the house and witnessed the incident and Madho Singh (PW 9)
claimed that soon after the shooting, Gambhir Singh (PW 7), Bir
Singh (PW 11) and Shanti Devi (PW 8) came out of the house and
therefore the accused fled away from the spot. It is also contended
that the alleged eyewitnesses Gambhir Singh (PW 7), Bir Singh
(PW 11) and Shanti Devi (PW 8) made material improvements in
their testimonies before the Court in order to connect the case of
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prosecution with the medical report. Thus, the presence of the
eyewitnesses at the place of occurrence is doubtful.
8. Learned counsel further urged that as per the site plan prepared
by the Investigation Officer and also as per the medical evidence,
the deceased Jagannath Singh was standing when he was shot.
According to the medical report, the injuries sustained by the
deceased are possible only when the assaulter stands at a height
above the victim. Contrary to this, the case advanced by the
prosecution, coupled with the evidence of alleged eyewitness, is
that the appellant was standing on a lower level and the deceased
was standing on a higher level i.e. on the platform. In his
statement Madho Singh (PW 9) categorically mentioned that the
deceased was sitting on the platform (Chabutara) and the
appellant was standing on the ground, when he was shot. While
the medical report indicated that the margins of the wounds were
inverted and the bullet must have been fired from a distance of
within 6 feet, and as per the testimonies of the direct
eyewitnesses, the said distance varied between 12 to 22.5 feet.
The absence of human blood at the alleged place of incident i.e.
on the platform and presence of blood on the ground in front of the
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platform further renders the prosecution’s case even more
doubtful. This blood also could not be matched with that of the
deceased and therefore, recovery of weapons is of no relevance.
Simply for the reason that the post-mortem report indicated that
the deceased had died due to one single gunshot, and mere
recovery of nine empty cartridges from the appellant does not in
any way connect him with the crime, when the empty cartridges
were not recovered from the place of incident and also in the
absence of authenticated proof that the bullet shot at the
deceased was fired from the gun owned by the appellant. Learned
counsel thus submits that the statements of eyewitness are not
trustworthy. Considering the facts in their entirety, such as delayed
recording of statements of the eyewitnesses and an unsuccessful
attempt to reveal as to where the bullet had struck the victim and
the unmatched statements by prosecution witnesses with that of
the medical expert, the learned Trial Court was pleased to record
the order of acquittal of the appellant.
9. The learned counsel finally submitted that the High Court, on the
other hand, failed to appreciate the evidence in true legal
perspective and wrongly interfered with the well reasoned
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judgment of acquittal passed by the Trial Court based on a cogent
and detailed reasoning and that the High Court committed a grave
error by convicting the accused for the offence under Section 302
IPC. The impugned judgment is contrary to the settled legal
principles as it did not give due weightage to the medical evidence
and rejected the same without ascribing any reason. Thus,
interference by the High Court with the reasoned judgment of
acquittal passed by the Trial Court is unwarranted. Learned
counsel submits that in the light of settled legal principles, the
conviction of the appellant by the High Court is vague and
uncalled for and the same requires to be set aside by this Court.
10. On the other hand, learned counsel appearing for the State,
argued that the judgment of the Trial Court acquitting the appellant
was wholly erroneous as it was passed without taking into account
the prosecution evidence in its right perspective. There was no
inconsistency in the evidence of eyewitnesses who were very
much present at the scene of offence and the Trial Court was not
justified in ignoring their evidences. The High Court, after
re-appreciating the entire evidence on record, took a justifiable
stand in convicting the accused under Section 302 of the IPC by a
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well reasoned judgment and that there is no illegality or perversity
in the conviction of the accused calling interference by this Court.
11. We have heard the learned counsel on either side at length and
perused the material available on record. Now it is imperative to
look into the scope of interference by the appellate Court in an
appeal against acquittal and whether the High Court was justified
in convicting the accused under Section 302, IPC by reversing the
order of acquittal passed by the Trial Court.
12. In the criminal jurisprudence, an accused is presumed to be
innocent till he is convicted by a competent Court after a
full-fledged trial, and once the Trial Court by cogent reasoning
acquits the accused, then the reaffirmation of his innocence places
more burden on the appellate Court while dealing with the appeal.
No doubt, it is settled law that there are no fetters on the power of
the appellate Court to review, reappreciate and reconsider the
evidence both on facts and law upon which the order of acquittal is
passed. But the court has to be very cautious in interfering with an
appeal unless there are compelling and substantial grounds to
interfere with the order of acquittal. The appellate Court while
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passing an order has to give clear reasoning for such a
conclusion.
13. It is no doubt true that there cannot be any strait jacket formula as
to under what circumstances appellate Court can interfere with the
order of acquittal, but the same depends on facts and
circumstances of each case. In the case on hand, we have to
examine the rationale behind the conclusion of the High Court in
convicting the accused and the compelling reasons to deviate from
the order of acquittal passed by the Trial Court.
14. On a thorough analysis of the judgment impugned, it is evident
that the High Court has not recorded any reasons for partly setting
aside the judgment of the Trial Court which has acquitted all the
accused persons from the same set of facts before it. The High
Court which has set aside the acquittal order of the Trial Court has
observed that the Trial Court has based its reasoning on guess
work. We find it that even the High Court has committed the same
mistake and basing on the same facts and guess work has arrived
at the conclusion that the appellant is guilty.
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15. It is specifically urged by the learned counsel for the appellant that
as per the medical evidence, the injuries sustained by the
deceased are possible only when the assaulter stands at a height
above the victim. In this process, the court has guessed that
Mahavir Singh (accused-appellant) and Jagannath (deceased)
were of similar height which is nobody’s case and no evidence is
available on record to come to a conclusion that the height of the
two is same. The evidence available on record in this regard is a
statement of Dr. A.K. Upadhyay (PW 12) that the deceased was of
average Height. Now in order to establish that the bullet traveled in
a downward direction, they have explained that the position of the
gun usually kept in a downward position resting on the chest. Now
the logical fallacy is to have assumed the height of the platform
whose height has not been recorded due to sloppy investigation
by the Investigating Officers. There exists a reasonable doubt
because of the fact that the height of the platform was not
recorded and the same cannot be guessed at this point of time.
Further, the deposition of the Doctor is very clear that the shooter
might have been at a lower level. While some of the witnesses
have suggested that the deceased was on the ground while others
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have pointed out to the fact that he was standing on the platform.
Therefore, from the same set of facts, the Trial Court as well as
the High Court have arrived at different conclusions, such an
exercise cannot be undertaken by the High Court in an Appeal
unless the conclusion drawn by the Trial Court cannot be
sustained based on the facts and circumstances and when two
conclusions are possible based on the evidence available on
record, the appellate court should be all the more reluctant to
interfere with the findings recorded by the Trial Court.
16. It appears to us that the difference of opinion between the Courts
below in deciding whether or not the appellant has committed the
offence with which he is charged, mainly revolves around the
presence of alleged direct eyewitnesses at the spot, possibility of
appellant’s inflicting firearm injury to the deceased in view of the
positioning of the injury sustained by the deceased, the material
infirmity, if any, and contradiction in the ocular and medical
evidence. It is, however, clear that though, at the outset, the
accused/appellant absolutely rejected the allegation and pleaded
not guilty by taking the defence of alibi that, on the date of
incident, he was irrigating his field, but his claim has not been
supported by any evidence.
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17. Undoubtedly, Gambhir Singh (PW 7—brother of the deceased)
has accepted that certain criminal proceedings were pending
between the accused and his family members. He also admits that
one case had already been filed by the accused prior to the
incident. Admittedly, Shanti Devi (PW 8—wife of the deceased)
also has deposed that there was an altercation between her son
Vijender and Dhullu, on which they killed her husband. Thus, the
parties are admittedly in hostile terms and the incident in question
occurred in a broad day light at the residence of the deceased by
doing away his precious life. The prosecution, in support of its
version, has heavily relied upon the statements of eyewitnesses
Gambhir Singh (PW 7-complainant and also brother of the
deceased), Shanti Devi (PW 8-wife of the deceased), Madho
Singh (PW 9) and Bir Singh (PW 11-nephew of the deceased).
The learned Trial Judge disbelieved the presence of eyewitnesses
on the spot in view of delayed recording of their statements by the
Investigating Officer (PW 13) and also they remained unsuccessful
in revealing exactly as to where the bullet had struck the
deceased. We also find that nowhere in the First Information
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Report, the name or presence of eyewitness Shanti Devi (PW 8)
was mentioned as a witness to the incident.
18. The High Court has attached a lot of weight to the evidence of the
said Madho Singh (PW 9) as he is an independent witness. On
perusal of the record, it appears that the said person already had
deposed for the victim family on a number of previous occasions,
that too against the same accused. This being the fact, it is
important to analyze the jurisprudence on interested witness. It is
a settled principle that the evidence of interested witness needs to
be scrutinized with utmost care. It can only be relied upon if the
evidence has a ring of truth to it, is cogent, credible and
trustworthy. Here we may refer to chance witness also. It is to be
seen that although the evidence of a chance witness is acceptable
in India, yet the chance witness has to reasonably explain the
presence at that particular point more so when his deposition is
being assailed as being tainted.
19. A contradicted testimony of an interested witness cannot be
usually treated as conclusive. The said Madho Singh (PW 9) has
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admitted that he has been a witness in another case against the
accused for the deceased. Here it is to be seen that the said
Madho Singh (PW 9) has been acting as a pocket witness for
the family. Further, the credibility of this independent witness
can be challenged on the fact that the commotion was only
heard by the said Madho Singh (PW 9) whereas the rest of the
members of the locality did not come for help. As Madho
Singh (PW 9) is a chance witness as well as an interested witness
herein, causes suspicion and does not inspire confidence. This
admission by Madho Singh (PW 9) not only forces us to doubt the
veracity of his own deposition but also has created doubts on the
version of Gambhir Singh (PW 7).
20. We have thoroughly examined the evidence of expert witnesses
as well as other ocular witnesses. The evidence of Dr. A.K.
Upadhyay (PW 12) reveals that when the deceased sustained
bullet injury, he might have been in a standing position and the
bullet would have entered from left side and exited from right side
of the body. This fact, however, corroborated with the evidences of
PW 7 (Gambhir Singh) and PW 8 (Shanti Devi), but the
statements of PW 9 (Madho Singh) and PW 11 (Bir Singh) do not
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support it. Similarly, there were contradictions between the
statements of Dr. Upadhyay (PW 12) and that of the eyewitnesses
as to the distance and height of the assaulter while inflicting the
grievous injury to the deceased and whether the deceased was
standing on the platform (Chabutara) or came down from it while
receiving the bullet injury. We find from the statement of Dr.
Upadhyay (PW 12) that he was not clear and definite to say
exactly from what position and distance the assaulter could have
fired the gun.
21. Going by the seizure memo (Ex.P/3) apparently one gun, 12 live
and 9 empty cartridges were recovered from the appellant. The
evidences of eyewitnesses support this fact and no question was
put to the I.O. after the recovery of the gun and cartridges, that
whether he himself shot from the seized gun to create evidence.
The prosecution’s story is somewhat strengthened by the ballistic
expert’s report (Ex. P/12) which affirms that the gun seized from
the appellant was in perfect order, the empty cartridges bore the
same impression on pin as seized from the accused and the live
cartridges were actually fired by the gun seized from the appellant.
But nowhere it was mentioned that the death of the victim
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occurred by the bullet released from the seized gun. Merely the
seizure of gun and cartridges from the appellant, the ongoing
enmity between the parties on account of various criminal
litigations and the altercation and exchange of heated words
between the rival groups on the morning of the same day, cannot
establish the guilt of accused beyond reasonable doubt.
22. The position of law in cases where there is a contradiction
between medical evidence and ocular evidence can be crystallized
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 far that it
completely rules out all possibility of the ocular evidence being
true, the ocular evidence may be disbelieved [See : Abdul
Sayeed v . State of M.P., (2010) 10 SCC 259]
23. In view of contradictory statements by the prosecution witnesses
coupled with the unmatched medical evidence, delay in recording
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of statements of witnesses by the I.O., non-availability of proper
site plan and in the absence of authenticated ballistic expert report
that the bullet had been fired with the seized gun of the appellant,
the Trial Court had to decide the case against the prosecution and
discharge the appellant from the charges. The High Court, upon
carrying the exercise of reappreciation of evidence, formed the
view that the reasons for delay in recording the statements of
witnesses have been properly explained; that as soon as the bullet
struck on the abdomen of the deceased, he immediately fell down
from the platform. It further observed that though the name of
Shanti Devi (PW 8) was not mentioned in the FIR, there is positive
evidence on record to establish her presence at the time of
incident along with other eyewitnesses and this fact has been
established by their corroborative statements and there is no
reason to disbelieve their statements. Here it is worthwhile to
mention that both the Courts below formed a common opinion that
the prosecution has failed to prove the charges under Sections
148 and 302/149 of IPC against the co-accused and discharged
them from those charges. The disagreement between the Trial
Court and the High Court is only in respect of the charge under
Section 302, IPC against the appellant.
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24. It is the duty of the Apex Court to separate chaff from the husk and
to dredge the truth from the pandemonium of Statements. It is but
natural for human beings to state variant statements due to time
gap but if such statements go to defeat the core of the prosecution
then such contradictions are material and the Court has to be
mindful of such statements [See : Tahsildhar Singh v. State of
UP, AIR 1959 SC 1012; Pudhu Raja v. State, (2012) 11 SCC
196; State of UP v. Naresh, (2011) 4 SCC 324]. The case in hand
is a fit case, wherein there are material exaggerations and
contradictions, which inevitably raises doubt which is reasonable
in normal circumstances and keeping in view the substratum of the
prosecution case, we cannot infer beyond reasonable doubt that
the appellant caused the death of the deceased.
25. Normally, when a culprit perpetrates a heinous crime of murder
and takes away the life of a human being, if appropriate
punishment is not awarded to that offender, the Court will be failing
in its duty. Such crime, when indulged by a criminal blatantly, is not
committed against an individual alone, but is committed against
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the society as well to which the criminal and victim are a part. It
needs no emphasis from this Court that the punishment to be
awarded for such a crime must be relevant and it should conform
to and be consistent with the atrocity and brutality with which the
crime has been carried out.
26. Here in the instant case, no doubt, an innocent man has lost his
life at the hands of another man, and looking at the way in which
the investigation was handled, we are sure to observe that it was
carried out in a lackluster manner. The approach of the
Investigating Officer in recording the statements of witnesses,
collecting the evidence and preparation of site map has remained
unmindful. The Investigating Officer, dealing with a murder case, is
expected to be diligent, truthful and fair in his approach and his
performance should always be in conformity with the police
manual and a default or breach of duty may prove fatal to the
prosecution’s case. We may hasten to add that in the present case
the investigation was carried out with unconcerned and uninspiring
performance. There was no firm and sincere effort with the needed
zeal and spirit to bring home the guilt of the accused. We feel that
there are no compelling and substantial reasons for the High Court
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to interfere with the order of acquittal when the prosecution has
miserably failed to establish the guilt of the accused. Added to this,
the accused has already undergone nine years’ of imprisonment
and we feel that it is a fit case inviting interference by this Court.
27. Resultantly, the appeal is allowed and the judgment of conviction
and order of sentence passed by the High Court is set aside.
Consequently, the appellant shall be set at liberty forthwith if not
required in any other case.
……………………………..J. (A.K. SIKRI)
…………………………….J. (N.V. RAMANA)
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NEW DELHI,
NOVEMBER 09, 2016
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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1141 OF 2007
MAHAVIR SINGH … APPELLANT
VERSUS
STATE OF MADHYA PRADESH … RESPONDENT
JUDGMENT
N.V. RAMANA, J.
Page 25
25
28. This appeal arises out of the judgment and order dated 19th March,
2007 passed by the High Court of Madhya Pradesh, Bench at
Gwalior in Criminal Appeal No. 36 of 1996 whereby the High Court
has partly allowed the appeal preferred by the State by confirming
the judgment of the Trial Court for the offence under Section 148
of IPC and convicted the appellant herein for the offence under
Section 302, IPC and sentenced him to undergo imprisonment for
life.
29. The brief facts of the case as culled out from the case of the
prosecution are that on 26th December, 1987 at about 1 p.m. while
Gambhir Singh (PW 7) (brother of the deceased) was having lunch
at his home, the appellant along with a group of co-accused
persons, each armed with deadly weapons rushed to his house
hurling abusive filthy words and picked up a quarrel with his
brother Jagannath Singh (deceased) who was sitting outside on a
platform (Chabutara) along with his nephew Bir Singh (PW 11).
When Jagannath Singh (deceased) raised objection to their
behavior, the appellant fired a gunshot in the abdomen of the
deceased as a result of which he fell down on the ground and
succumbed to the injuries.
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30. Gambhir Singh (P.W. 7) carried the body of the deceased to the
police station, Lahar on a bullock cart and lodged the FIR
(Annexure P-1) at 4.15 PM on the same day. Dilip Singh Yadav
(PW-13) prepared inquest memo and Dr. A. K. Upadhyay (P.W. 12)
conducted autopsy on the dead body. On the next day, Dilip Singh
Yadav (PW 13) seized blood stained soil and plain soil from the
place of occurrence, as per seizure memo. He also seized a gun,
12 live cartridges and 9 empty cartridges from the possession of
appellant Mahavir Singh, an axe from Sobaran (co-accused) and a
lathi from Kanched Singh (another co-accused) as per seizure
memo and sent them to the Forensic Science Laboratory at Sagar.
Consequently, statements of witnesses were recorded under
section 161 of Cr.P.C., spot map was prepared and Charge-sheet
was filed against the appellant under sections 302, 147, 148 and
149 of the IPC in the Court of Judicial Magistrate First Class,
Lahar who committed the case to Court of Sessions for Trial. The
Trial Court framed charges u/s 302 and 148 of IPC against the
appellant and under sections 148, 302/149 of IPC against
co-accused. All the accused pleaded not guilty and claimed to be
tried. To prove the guilt of the accused, the prosecution has
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examined 13 witnesses and marked several Exhibits while the
accused examined none in defence and no exhibits were marked
on his behalf.
31. The Trial Court by its judgment and order dated 30 th November,
1994 acquitted the appellant from the alleged offences mainly on
the ground that there are contradictions in the evidence of
eyewitnesses to that of medical evidence, prosecution has failed to
prove beyond reasonable doubt formation of unlawful assembly
with a motive of committing murder of the deceased and also
failed to establish that the bullet had been fired with the firearm
seized from the appellant.
32. Dissatisfied with the Judgment of the Trial Court, the State
preferred an appeal before the High Court claiming that the
judgment of the Trial Court is perverse and illegal inasmuch as it
did not appreciate the prosecution evidence in right perspective
and ignored the evidence of the eyewitnesses. The High Court, on
a reanalysis of evidence of prosecution witnesses and other
material available on record came to the conclusion that the Trial
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Court was right in acquitting the other co-accused persons but
found fault with the acquittal of the appellant under Section 302
IPC. The High Court, therefore, partly allowed the appeal by
confirming the judgment of the Trial Court in respect of the charge
under Section 148 and convicted the appellant herein for the
offence under Section 302, IPC and sentenced him to undergo
imprisonment for life. Aggrieved by the Judgment of the High
Court, the appellant approached this Court in appeal.
33. Learned counsel for the appellant submitted that the Trial Court
rightly acquitted the appellant, after elaborately considering the
evidence on record, upon coming to the conclusion that there is
lack of credibility in the testimony of the prosecution witnesses,
and, in particular, the medical and ocular testimonies are
conflicting; there was considerable delay on the part of
Investigating Officer in recording the evidences of alleged
eyewitnesses inasmuch as statements by none of the
eyewitnesses were recorded on the day of occurrence of the
incident.
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34. In the background of this factual matrix, learned counsel for the
appellant has advanced his arguments that since the appellant
and victim parties have prior enmity over some pending criminal
cases, the family members of the deceased, i.e., Gambhir Singh
(PW 7), Shanti Devi (PW 8), Bir Singh (PW 11) in connivance and
with the help of a pocket witness Madho Singh (PW 9) concocted
the story, by projecting himself as an eyewitness, and falsely
implicated the appellant. According to him, this fact is clearly
established with the contradictions in the medical evidence and the
unreliable evidence of the alleged interested eyewitness. The
presence of Gambhir Singh (PW 7), at the time of occurrence, as
heavily relied upon by the prosecution, proves to be false in the
light of evidence of Bir Singh (PW 11) who nowhere in his
testimony mentioned that Gambhir Singh (PW 7) alone came out
of the house and witnessed the incident and Madho Singh (PW 9)
claimed that soon after the shooting, Gambhir Singh (PW 7), Bir
Singh (PW 11) and Shanti Devi (PW 8) came out of the house and
therefore the accused fled away from the spot. It is also contended
that the alleged eyewitnesses Gambhir Singh (PW 7), Bir Singh
(PW 11) and Shanti Devi (PW 8) made material improvements in
their testimonies before the Court in order to connect the case of
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prosecution with the medical report. Thus, the presence of the
eyewitnesses at the place of occurrence is doubtful.
35. Learned counsel further urged that as per the site plan prepared
by the Investigation Officer and also as per the medical evidence,
the deceased Jagannath Singh was standing when he was shot.
According to the medical report, the injuries sustained by the
deceased are possible only when the assaulter stands at a height
above the victim. Contrary to this, the case advanced by the
prosecution, coupled with the evidence of alleged eyewitness, is
that the appellant was standing on a lower level and the deceased
was standing on a higher level i.e. on the platform. In his
statement Madho Singh (PW 9) categorically mentioned that the
deceased was sitting on the platform (Chabutara) and the
appellant was standing on the ground, when he was shot. While
the medical report indicated that the margins of the wounds were
inverted and the bullet must have been fired from a distance of
within 6 feet, and as per the testimonies of the direct
eyewitnesses, the said distance varied between 12 to 22.5 feet.
The absence of human blood at the alleged place of incident i.e.
on the platform and presence of blood on the ground in front of the
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platform further renders the prosecution’s case even more
doubtful. This blood also could not be matched with that of the
deceased and therefore, recovery of weapons is of no relevance.
Simply for the reason that the post-mortem report indicated that
the deceased had died due to one single gunshot, and mere
recovery of nine empty cartridges from the appellant does not in
any way connect him with the crime, when the empty cartridges
were not recovered from the place of incident and also in the
absence of authenticated proof that the bullet shot at the
deceased was fired from the gun owned by the appellant. Learned
counsel thus submits that the statements of eyewitness are not
trustworthy. Considering the facts in their entirety, such as delayed
recording of statements of the eyewitnesses and an unsuccessful
attempt to reveal as to where the bullet had struck the victim and
the unmatched statements by prosecution witnesses with that of
the medical expert, the learned Trial Court was pleased to record
the order of acquittal of the appellant.
36. The learned counsel finally submitted that the High Court, on the
other hand, failed to appreciate the evidence in true legal
perspective and wrongly interfered with the well reasoned
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judgment of acquittal passed by the Trial Court based on a cogent
and detailed reasoning and that the High Court committed a grave
error by acquitting the accused for the offence under Section 302
IPC. The impugned judgment is contrary to the settled legal
principles as it did not give due weightage to the medical evidence
and rejected the same without ascribing any reason. Thus,
interference by the High Court with the reasoned judgment of
acquittal passed by the Trial Court is unwarranted. Learned
counsel submits that in the light of settled legal principles, the
conviction of the appellant by the High Court is vague and
uncalled for and the same requires to be set aside by this Court.
37. On the other hand, learned counsel appearing for the State,
argued that the judgment of the Trial Court acquitting the appellant
was wholly erroneous as it was passed without taking into account
the prosecution evidence in its right perspective. There was no
inconsistency in the evidence of eyewitnesses who were very
much present at the scene of offence and the Trial Court was not
justified in ignoring their evidences. The High Court, after
re-appreciating the entire evidence on record, took a justifiable
stand in convicting the accused under Section 302 of the IPC by a
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well reasoned judgment and that there is no illegality or perversity
in the conviction of the accused calling interference by this Court.
38. We have heard the learned counsel on either side at length and
perused the material available on record. Now it is imperative to
look into the scope of interference by the appellate Court in an
appeal against acquittal and whether the High Court was justified
in convicting the accused under Section 302, IPC by reversing the
order of acquittal passed by the Trial Court.
39. In the criminal jurisprudence, an accused is presumed to be
innocent till he is convicted by a competent Court after a
full-fledged trial, and once the Trial Court by cogent reasoning
acquits the accused, then the reaffirmation of his innocence places
more burden on the appellate Court while dealing with the appeal.
No doubt, it is settled law that there are no fetters on the power of
the appellate Court to review, reappreciate and reconsider the
evidence both on facts and law upon which the order of acquittal is
passed. But the court has to be very cautious in interfering with an
appeal unless there are compelling and substantial grounds to
interfere with the order of acquittal. The appellate Court while
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passing an order has to give clear reasoning for such a
conclusion.
40. It is no doubt true that there cannot be any strait jacket formula as
to under what circumstances appellate Court can interfere with the
order of acquittal, but the same depends on facts and
circumstances of each case. In the case on hand, we have to
examine the rationale behind the conclusion of the High Court in
convicting the accused and the compelling reasons to deviate from
the order of acquittal passed by the Trial Court.
41. On a thorough analysis of the judgment impugned, it is evident
that the High Court has not recorded any reasons for partly setting
aside the judgment of the Trial Court which has acquitted all the
accused persons from the same set of facts before it. The High
Court which has set aside the acquittal order of the Trial Court has
observed that the Trial Court has based its reasoning on guess
work. We find it that even the High Court has committed the same
mistake and basing on the same facts and guess work has arrived
at the conclusion that the appellant is guilty.
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42. It is specifically urged by the learned counsel for the appellant that
as per the medical evidence, the injuries sustained by the
deceased are possible only when the assaulter stands at a height
above the victim. In this process, the court has guessed that
Mahavir Singh (accused-appellant) and Jagannath (deceased)
were of similar height which is nobody’s case and no evidence is
available on record to come to a conclusion that the height of the
two is same. The evidence available on record in this regard is a
statement of Dr. A.K. Upadhyay (PW 12) that the deceased was of
average Height. Now in order to establish that the bullet traveled in
a downward direction, they have explained that the position of the
gun usually kept in a downward position resting on the chest. Now
the logical fallacy is to have assumed the height of the platform
whose height has not been recorded due to sloppy investigation
by the Investigating Officers. There exists a reasonable doubt
because of the fact that the height of the platform was not
recorded and the same cannot be guessed at this point of time.
Further, the deposition of the Doctor is very clear that the shooter
might have been at a lower level. While some of the witnesses
have suggested that the deceased was on the ground while others
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have pointed out to the fact that he was standing on the platform.
Therefore, from the same set of facts, the Trial Court as well as
the High Court have arrived at different conclusions, such an
exercise cannot be undertaken by the High Court in an Appeal
unless the conclusion drawn by the Trial Court cannot be
sustained based on the facts and circumstances and when two
conclusions are possible based on the evidence available on
record, the appellate court should be all the more reluctant to
interfere with the findings recorded by the Trial Court.
43. It appears to us that the difference of opinion between the Courts
below in deciding whether or not the appellant has committed the
offence with which he is charged, mainly revolves around the
presence of alleged direct eyewitnesses at the spot, possibility of
appellant’s inflicting firearm injury to the deceased in view of the
positioning of the injury sustained by the deceased, the material
infirmity, if any, and contradiction in the ocular and medical
evidence. It is, however, clear that though, at the outset, the
accused/appellant absolutely rejected the allegation and pleaded
not guilty by taking the defence of alibi that, on the date of
incident, he was irrigating his field, but his claim has not been
supported by any evidence.
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44. Undoubtedly, Gambhir Singh (PW 7—brother of the deceased)
has accepted that certain criminal proceedings were pending
between the accused and his family members. He also admits that
one case had already been filed by the accused prior to the
incident. Admittedly, Shanti Devi (PW 8—wife of the deceased)
also has deposed that there was an altercation between her son
Vijender and Dhullu, on which they killed her husband. Thus, the
parties are admittedly in hostile terms and the incident in question
occurred in a broad day light at the residence of the deceased by
doing away his precious life. The prosecution, in support of its
version, has heavily relied upon the statements of eyewitnesses
Gambhir Singh (PW 7-complainant and also brother of the
deceased), Shanti Devi (PW 8-wife of the deceased), Madho
Singh (PW 9) and Bir Singh (PW 11-nephew of the deceased).
The learned Trial Judge disbelieved the presence of eyewitnesses
on the spot in view of delayed recording of their statements by the
Investigating Officer (PW 13) and also they remained unsuccessful
in revealing exactly as to where the bullet had struck the
deceased. We also find that nowhere in the First Information
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Report, the name or presence of eyewitness Shanti Devi (PW 8)
was mentioned as a witness to the incident.
45. The High Court has attached a lot of weight to the evidence of the
said Madho Singh (PW 9) as he is an independent witness. On
perusal of the record, it appears that the said person already had
deposed for the victim family on a number of previous occasions,
that too against the same accused. This being the fact, it is
important to analyze the jurisprudence on interested witness. It is
a settled principle that the evidence of interested witness needs to
be scrutinized with utmost care. It can only be relied upon if the
evidence has a ring of truth to it, is cogent, credible and
trustworthy. Here we may refer to chance witness also. It is to be
seen that although the evidence of a chance witness is acceptable
in India, yet the chance witness has to reasonably explain the
presence at that particular point more so when his deposition is
being assailed as being tainted.
46. A contradicted testimony of an interested witness cannot be
usually treated as conclusive. The said Madho Singh (PW 9) has
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admitted that he has been a witness in another case against the
accused for the deceased. Here it is to be seen that the said
Madho Singh (PW 9) has been acting as a pocket witness for
the family. Further, the credibility of this independent witness
can be challenged on the fact that the commotion was only
heard by the said Madho Singh (PW 9) whereas the rest of the
members of the locality did not come for help. As Madho
Singh (PW 9) is a chance witness as well as an interested witness
herein, causes suspicion and does not inspire confidence. This
admission by Madho Singh (PW 9) not only forces us to doubt the
veracity of his own deposition but also has created doubts on the
version of Gambhir Singh (PW 7).
47. We have thoroughly examined the evidence of expert witnesses
as well as other ocular witnesses. The evidence of Dr. A.K.
Upadhyay (PW 12) reveals that when the deceased sustained
bullet injury, he might have been in a standing position and the
bullet would have entered from left side and exited from right side
of the body. This fact, however, corroborated with the evidences of
PW 7 (Gambhir Singh) and PW 8 (Shanti Devi), but the
statements of PW 9 (Madho Singh) and PW 11 (Bir Singh) do not
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support it. Similarly, there were contradictions between the
statements of Dr. Upadhyay (PW 12) and that of the eyewitnesses
as to the distance and height of the assaulter while inflicting the
grievous injury to the deceased and whether the deceased was
standing on the platform (Chabutara) or came down from it while
receiving the bullet injury. We find from the statement of Dr.
Upadhyay (PW 12) that he was not clear and definite to say
exactly from what position and distance the assaulter could have
fired the gun.
48. Going by the seizure memo (Ex.P/3) apparently one gun, 12 live
and 9 empty cartridges were recovered from the appellant. The
evidences of eyewitnesses support this fact and no question was
put to the I.O. after the recovery of the gun and cartridges, that
whether he himself shot from the seized gun to create evidence.
The prosecution’s story is somewhat strengthened by the ballistic
expert’s report (Ex. P/12) which affirms that the gun seized from
the appellant was in perfect order, the empty cartridges bore the
same impression on pin as seized from the accused and the live
cartridges were actually fired by the gun seized from the appellant.
But nowhere it was mentioned that the death of the victim
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occurred by the bullet released from the seized gun. Merely the
seizure of gun and cartridges from the appellant, the ongoing
enmity between the parties on account of various criminal
litigations and the altercation and exchange of heated words
between the rival groups on the morning of the same day, cannot
establish the guilt of accused beyond reasonable doubt.
49. The position of law in cases where there is a contradiction
between medical evidence and ocular evidence can be crystallized
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 far that it
completely rules out all possibility of the ocular evidence being
true, the ocular evidence may be disbelieved [See : Abdul
Sayeed v . State of M.P., (2010) 10 SCC 259]
50. In view of contradictory statements by the prosecution witnesses
coupled with the unmatched medical evidence, delay in recording
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of statements of witnesses by the I.O., non-availability of proper
site plan and in the absence of authenticated ballistic expert report
that the bullet had been fired with the seized gun of the appellant,
the Trial Court had to decide the case against the prosecution and
discharge the appellant from the charges. The High Court, upon
carrying the exercise of reappreciation of evidence, formed the
view that the reasons for delay in recording the statements of
witnesses have been properly explained; that as soon as the bullet
struck on the abdomen of the deceased, he immediately fell down
from the platform. It further observed that though the name of
Shanti Devi (PW 8) was not mentioned in the FIR, there is positive
evidence on record to establish her presence at the time of
incident along with other eyewitnesses and this fact has been
established by their corroborative statements and there is no
reason to disbelieve their statements. Here it is worthwhile to
mention that both the Courts below formed a common opinion that
the prosecution has failed to prove the charges under Sections
148 and 302/149 of IPC against the co-accused and discharged
them from those charges. The disagreement between the Trial
Court and the High Court is only in respect of the charge under
Section 302, IPC against the appellant.
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51. It is the duty of the Apex Court to separate chaff from the husk and
to dredge the truth from the pandemonium of Statements. It is but
natural for human beings to state variant statements due to time
gap but if such statements go to defeat the core of the prosecution
then such contradictions are material and the Court has to be
mindful of such statements [See : Tahsildhar Singh v. State of
UP, AIR 1959 SC 1012; Pudhu Raja v. State, (2012) 11 SCC
196; State of UP v. Naresh, (2011) 9 SCC 698]. The case in hand
is a fit case, wherein there are material exaggerations and
contradictions, which inevitably raises doubt which is reasonable
in normal circumstances and keeping in view the substratum of the
prosecution case, we cannot infer beyond reasonable doubt that
the appellant caused the death of the deceased.
52. Normally, when a culprit perpetrates a heinous crime of murder
and takes away the life of a human being, if appropriate
punishment is not awarded to that offender, the Court will be failing
in its duty. Such crime, when indulged by a criminal blatantly, is not
committed against an individual alone, but is committed against
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the society as well to which the criminal and victim are a part. It
needs no emphasis from this Court that the punishment to be
awarded for such a crime must be relevant and it should conform
to and be consistent with the atrocity and brutality with which the
crime has been carried out.
53. Here in the instant case, no doubt, an innocent man has lost his
life at the hands of another man, and looking at the way in which
the investigation was handled, we are sure to observe that it was
carried out in a lackluster manner. The approach of the
Investigating Officer in recording the statements of witnesses,
collecting the evidence and preparation of site map has remained
unmindful. The Investigating Officer, dealing with a murder case, is
expected to be diligent, truthful and fair in his approach and his
performance should always be in conformity with the police
manual and a default or breach of duty may prove fatal to the
prosecution’s case. We may hasten to add that in the present case
the investigation was carried out with unconcerned and uninspiring
performance. There was no firm and sincere effort with the needed
zeal and spirit to bring home the guilt of the accused. We feel that
there are no compelling and substantial reasons for the High Court
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to interfere with the order of acquittal when the prosecution has
miserably failed to establish the guilt of the accused. Added to this,
the accused has already undergone nine years’ of imprisonment
and we feel that it is a fit case inviting interference by this Court.
54. Resultantly, the appeal is allowed and the judgment of conviction
and order of sentence passed by the High Court is set aside.
Consequently, the appellant shall be set at liberty forthwith if not
required in any other case.
……………………………..J. (A.K. SIKRI)
…………………………….J. (N.V. RAMANA)
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NEW DELHI,
NOVEMBER 09, 2016