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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1467-1468 OF 2005

SADHU SARAN SINGH …  APPELLANT

VERSUS

STATE OF U.P. AND ORS. …   RESPONDENTS

JUDGMENT N.V. RAMANA, J.

1. These appeals are directed against the judgment passed by the  

High Court of Judicature at Allahabad in Criminal Appeal Nos.2701  

and 5802 of 2003, dated 07.12.2004, by which the High Court has  

allowed the appeals filed by the accused- respondents herein and  

acquitted them for the offences under Sections 147, 148, 149, 302,  

307 and 504 of the Indian Penal Code, 1860 (for short ‘the IPC’).

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2. It is pertinent to mention here that the appellant before us was  

not a party before the Courts below and the present appeals have  

been preferred by him with the leave of this Court. The locus of the  

appellant is that he is the brother of the informant Bhola Singh (PW1)  

who died during the pendency of the appeal before the High Court  

and  also  paternal  uncle  of  the  three  deceased  persons  (Sons  of  

informant Bhola Singh—PW1).

3. The facts in brief, as unfolded by the prosecution case are that  

Bhola  Singh  (PW1)—the informant  is  a  resident  of  village  Kanso,  

district Mau and on 4th October, 1994 at about 8 am when his sons  

namely  Sheo Kumar,  Avdhesh and Yogendra (all  three deceased)  

were repairing the cattle  trough in  presence of  one Ganga Singh,  

brother-in-law of the informant and  one Baijnath Singh (PW 2),  the  

accused Ramashraya Singh, Satyendra Singh, Brijendra Singh along  

with  their  father  Ramchandra  Singh  armed  with  deadly  weapons  

came to the Baithka of the informant-Bhola Singh with the company  

of Kamla Singh and Ram Saran Singh hurling filthy abuses. While  

Ramchandra Singh exhorted his sons to eliminate the whole family of  

the victim, the accused Ramashraya Singh and Kamla Singh opened  

fire with guns while Satyendra Singh and Brijendra Singh attacked

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with  katta upon  the  three  sons  of  Bhola  Singh  (PW1).  The  other  

accused also attacked the victim party with their respective weapons.  

In the assault, the three sons of PW1 sustained injuries and fell on  

the  ground  and  Ganga  Singh,  brother-in-law  of  PW1  sustained  

firearm injuries.  During the ongoing tussle, PW1—Bhola Singh ran  

into the village and raised hue and cry whereupon the assailants took  

to their heels. The attack resulted into the death of two sons of the  

informant i.e. Shivshankar and Avadhesh on the spot while another  

son i.e. Yogendra breathed his last on the way to the hospital.

4. At  the  instance  of  the  informant  (PW1),  a  First  Information  

Report  (Ext.  Ka-1)  was  lodged  at  9.15  a.m.  on  the  same day  at  

Haldharpur  P.S.  wherein  PW1  stated  that  the  incident  had  taken  

place on account of enmity over land dispute between the parties.  

Constable Muharrir Ram Manohar Maurya (PW-3) prepared the chick  

report (Ext. Ka-4) and registered the case as Crime No.219/94 under  

Sections 147,148, 149, 302, 307 and 504 IPC. The injured Ganga  

Singh  was then  sent  for  medical  check  up  to  the  Primary  Health  

Centre.

5. Sub-Inspector  Riyayatullah  Khan,  the  Investigating  Officer  

visited  the  place  of  occurrence,  held  inquest  of  the  dead  bodies,

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prepared site map and recorded the statement of the informant. He  

then collected blood stained roll of clay and plain clay and prepared  

memo. Dr. O.P.Singh (PW 6) who conducted medical examination of  

the injured Ganga Singh opined in his report (Ext.Ka-33) that all the  

injuries were caused by fire arms and  were sustained within a period  

of 6 hours.

6. Dr.  Jitendra  Kumar  Singh  (PW7)  conducted  post-mortem  

examination on the bodies of  the three deceased persons.  By his  

reports Ka-34, 35 and 36, he expressed the opinion that the incident  

might have occurred at 8.00 a.m. and that the intestines of all  the  

three  deceased  contained  semi-digested  food  material  and  the  

injuries suffered by the victims were of firearms and there was no  

blunt  object  injury.  On  7-10-1994,  the  I.O.  arrested  Ramchandra  

Singh and Ramsaran Singh and recorded statements of witnesses.  

The I.O. filed charge sheet (Ext. Ka-32) against all the six accused  

persons. Since the accused have denied the charges and prayed for  

trial, the case was committed to the Court of sessions.

7. The  prosecution,  in  support  of  its  case,  had  examined  two  

eyewitnesses, namely, the informant Bhola Singh (PW1), father of all  

the three deceased persons and  Baijnath Singh (PW 2) and five

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formal  witnesses  i.e.  PW  6  Dr.O.P.Singh  and  P.W.7  Dr.Jitendra  

Kumar  Singh,  PW 5 the Investigating Officer  and PW 4 the Sub-

Inspector and PW 3 Constable Ram Manohar Maurya, who prepared  

the chick FIR and General Diary entry pertaining to registration of the  

case. On the other hand, the accused have produced four witnesses  

in their defence. During the pendency of trial, one accused, namely,  

Ramchandra Singh died.

8. The Trial Court, after a full-fledged trial, came to the conclusion  

that  the  accused  were  guilty  of  committing  a  cruel  and  heinous  

offence and by its  detailed judgment  dated 22-05-2003 sentenced  

Ram Saran Singh, Satyendra Singh and Brijendra Singh to undergo  

life  imprisonment  for  the offence  under  Section  302/149,  IPC and  

imposed fine of Rs.10,000/-. In default, they were directed to undergo  

two years’ rigorous imprisonment.  They were also convicted under  

Section  307/149  IPC  and  sentenced  to  seven  years’  rigorous  

imprisonment and a fine of Rs.5,000/-. In default, to undergo one year  

rigorous imprisonment. Conviction under Section 148 IPC was also  

recorded  against  these  appellants.  They  were  sentenced  to  two  

years’ rigorous imprisonment and a fine of Rs.1,000/-. In default, six  

months’  rigorous  imprisonment  was  imposed  on  them.  Death

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Sentence was imposed upon Ramashraya Singh and Kamla Singh  

under Section 302/149 IPC with a fine of Rs.10,000/-. In default, the  

appellants  were  directed  to  undergo  two  years’  rigorous  

imprisonment. They were also convicted under Section 307/149 IPC  

and were sentenced to 7 years’ rigorous imprisonment and a fine of  

Rs.5,000/-. In default, to undergo rigorous imprisonment for one year.  

Conviction under Section 148 IPC was also recorded against these  

appellants. They were sentenced to two years’ rigorous imprisonment  

and a fine of Rs.1,000/-. In default of payment of fine, six months’  

rigorous imprisonment was imposed.

9. Aggrieved  thereby,  all  the  five  accused  persons  preferred  

criminal  appeals  before  the  High  Court.  The  High  Court  recorded  

complete disagreement with the findings given by the Sessions Judge  

and allowed the appeals of the accused by setting aside the judgment  

of the trial Court and acquitted them of the charges and also rejected  

the  Reference  for  confirmation  of  death  sentence  of  the  accused  

Ramashraya Singh and Kamala Singh. Dissatisfied with the order of  

acquittal  passed  by  the  High  Court,  the  brother  of  the  deceased  

informant filed the present appeals by way of special leave.

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10. We have  heard  Shri  Viswajit  Singh,  learned  counsel  for  the  

appellant and Shri Ranjit Rao, learned Additional Advocate General  

for the State and Shri Pramod Swarup, learned senior counsel for the  

accused—private respondents herein.   

11. Shri  Vishwajit  Singh,  learned  counsel  for  the  appellant  

vehemently contended that the High Court committed a manifest and  

grave  error  in  analyzing  the  evidences  of  PW1  and  PW2  and  

acquitted the accused without proper application of mind. It ought not  

to have rejected the ocular evidence of the informant PW 1 Bhola  

Singh, the ultimate victim and father of the three deceased persons.  

The finding of the High Court that PW1 was not present on the spot is  

untenable and treating his evidence as unreliable, is totally perverse  

and bad in law in view of the true nature and circumstances of the  

case. A prudent analysis of evidence of PW-1 would clearly suggest  

that  there  are  no  discrepancies  in  his  evidence  and  rather  it  

abundantly makes clear that he is a wholly reliable witness and his  

evidence is trustworthy.  

12. Similarly,  the  view  expressed  by  the  High  Court  that  the  

presence  of  PW  2–Baijnath  Singh  at  the  scene  of  occurrence  is  

doubtful and it is an afterthought, cannot be sustained as perusal of

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FIR lodged by PW-1 Bhola Singh unequivocally shows that the name  

of PW-2 Baijanth Singh was referred in the FIR and his presence at  

the  place  of  occurrence  was  established  beyond  any  reasonable  

doubt. Moreover, nothing has been elicited in his examination-in-chief  

or  cross-examination  mounting  a  doubt  on  the  veracity  of  his  

statement.  Moreover,  the  witness  has  been  consistent  in  his  

statement fully supporting the prosecution story.   

13. Lamenting on the view taken by the High Court in disregarding  

the abduction of Ganga Singh, the injured witness, learned counsel  

explained that Ganga Singh could not be produced in the witness box  

by  the  prosecution  for  the  reason  that  he  was  kidnapped  by  the  

accused persons after being threatened and beaten up by them.  In  

this regard, two FIRs, i.e. one on 6.10.1997 and before that another  

on 12.9.1997 were also lodged which would show that Ganga Singh  

was purposely kidnapped during the period when the evidence of the  

witnesses were going on and the High Court has wrongly mentioned  

that a photocopy of the final report would show that the allegation of  

kidnapping  was  fabricated  and  although  no  such  document  was  

either  exhibited  before  the  Trial  Court  or  before  the  High  Court.  

According  to  him,  the  timing  of  the  aforesaid  kidnapping  and

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threatening also coincided with the fact that the statement of PW-1  

Bhola Singh was completed on 24.7.1997 and the statement of PW-2  

Baijnath Singh was completed on 13.11.1997.  Regarding the minor  

inconsistency between medical and ocular evidence, it is argued that  

it cannot derail the case of the prosecution as the inconsistency is not  

of an extreme nature and weightage has to be given to the evidence  

of eyewitness as per settled law. Merely for the reason that no blunt  

injuries were found on the bodies, even when the complainant had  

alleged, is of no consequence.    

14. Negating  the  finding  of  the  High  Court  as  to  the  place  of  

occurrence, learned counsel submitted that the High Court  did not  

consider  the  case   in  its  proper  perspective.  A perusal  of  entire  

evidence on record would clearly establish the place of occurrence  

and that the prosecution has succeeded in proving the guilt beyond  

all reasonable doubt. The evidence on record clearly reveals that the  

Investigating Officer had recovered the blood stained roll of the clay  

and the  plain  clay  from the  place of  incident,  which  was sent  for  

examination wherein  on analysis,  human blood was found on the  

same. Even the evidence of  eyewitnesses PW-1 Bhola Singh and  

PW-2 Baijnath Singh is very much consistent on the said aspect and,

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therefore, the High Court was wrong to raise a dispute on the place of  

occurrence. Contending further on the doubt raised by the High Court  

on the timing of  incident,  learned counsel submitted that  the High  

Court has laid a lot of emphasis on the presence of semi-digested  

food in the medical report and has held that it totally contradicts the  

case  of  prosecution  with  regard  to  the  time  of  occurrence  of  the  

offence, whereas the doctors (PWs 6 & 7) in their  examination-in-

chief have clearly stated that the incident might have taken place at  

8 a.m. Thus the High Court erred in recording a finding contrary to the  

evidence, particularly for the reason that in villages generally people  

wake  up  early  in  the  morning  and  start  work  early  after  having  

breakfast and, therefore, presence of half-digested food cannot be a  

probable ground to arrive at  a conclusion that  the deceased must  

have died at night. Learned counsel finally submitted that for all the  

aforesaid reasons, the High Court ought not to have interfered with  

the  well-reasoned  judgment  of  the  trial  Court.  In  support  of  his  

submissions, learned counsel placed reliance on various authorities  

of this Court.

15. The learned counsel for the State supported the contentions of  

the appellant and conceded that the High Court erred in acquitting the

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respondents-accused  ignoring  certain  relevant  circumstances  and  

material evidence which clearly established the guilt of the accused.  

According to him, the High Court has utterly failed to consider the  

genuine facts that the FIR was lodged at 9.15 a.m. immediately after  

the  incident  without  any  unreasoned  delay,  evidence  of  both  the  

eyewitnesses i.e. PW-1 AND PW-2 were reliable as their statements  

were completely corroborated by the medical evidence; the injured  

Ganga Singh though could not be examined by the prosecution but  

had  been  medically  examined  by  PW-6  on  the  same  day  

corroborating the prosecution’s story and the motive of the accused  

to commit the crime was established as they were having enmity with  

the  victim  party  in  respect  of  a  land  dispute.  Learned  counsel,  

therefore, prayed that considering the abundant and cogent evidence  

available  on  record,  this  Court  should  exercise  its  powers  under  

Article 136 of the Constitution of India and set aside the impugned  

judgment and order by convicting the accused.

16.  Per  contra,  learned  counsel  appearing  for  the  accused  

respondents submitted that the prosecution case is unreliable for the  

reasons that the place of occurrence and lodging of FIR is very much  

disputed, there is difference between the medical and oral evidence

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of the witnesses, the so called injured witness Ganga  Singh despite  

being a relative of the informant, has not been examined before the  

Court and the presence of semi-digested food in the stomach of the  

deceased suggests that the incident could have occurred between  

2.00  to  4.00  a.m.  totally  controverting  the  stand  taken  by  the  

prosecution. The High Court has prudently appreciated these facts  

and rightly held that the investigation department was hand in glove  

with  the  complainant  who wanted  to  implicate  the  accused in  the  

alleged crime. The alleged FIRs purporting to establish kidnapping  

story of Ganga Singh cannot be of any consequence as the same  

were  concocted  and  was  rightly  disregarded  by  the  High  Court.  

Moreover,  from  the  statements  of  PW-1  Bhola  Singh  and  PW-2  

Baijnath Singh, it cannot be inferred that they were actually present at  

the scene of offence at the time of occurrence of the incident since  

their  evidence does not support  the same. Disputing the scene of  

occurrence,  learned  counsel  contended  that  as  per  prosecution  

version,  all  the three deceased were laying  clay  on the  nand but  

PW-4 Riyatullah Khan, who has prepared the panchnama had not  

found any clay on the dead-bodies  of the deceased nor in the post-

mortem no  clay  was  found  by  PW-7  Dr.  Jitendra  Kumar.  Another

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clinching factor in this regard is that the place of firing as shown in the  

sketch map prepared by the I.O. is contradictory to the place referred  

by PW-1 and P.W.2. in their statements. The motive factor also stood  

not proved beyond reasonable doubt, considering the statement of  

PW1 who had categorically stated in his evidence that there was no  

dispute with regard to haudi and the land abutted to that.

17. Learned counsel further contended that  General  Diary of  the  

case has been prepared on the plain paper, contrary to the provisions  

of  the Police Regulation Act.  Apart  from this,  entry of  sending the  

case diary to the Superintendent of Police has not been made in the  

G.D., whereas under para 295(16) of the Police Regulation Act, it was  

necessary that the documents which are received in the G.D. in the  

police station, are sent to the police station after making entries; thus  

the IO has not complied with the provisions of para 107 of the Police  

Regulation Act and due to this reason, the investigation is vitiated.

Learned counsel for the accused therefore strenuously urged  

that there is no error in the acquittal order passed by the High Court  

which does not call for any interference by this Court.

18. Generally,  an  appeal  against  acquittal  has  always  been  

altogether  on  a  different  pedestal  from  that  of  an  appeal  against

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conviction. In an appeal against acquittal where the presumption of  

innocence in favour of the accused is reinforced, the appellate Court  

would  interfere  with  the  order  of  acquittal  only  when  there  is  

perversity of fact and law. However, we believe that the paramount  

consideration  of  the  Court  is  to  do  substantial  justice  and  avoid  

miscarriage of justice which can arise by acquitting the accused who  

is guilty of an offence. A miscarriage of justice that may occur by the  

acquittal  of  the  guilty  is  no  less  than  from  the  conviction  of  an  

innocent. This Court, while enunciating the principles with regard to  

the  scope  of  powers  of  the  appellate  Court  in  an  appeal  against  

acquittal, in the case of Sambasivan and Others V. State of Kerala,  

(1998) 5 SCC 412, has held :

“The principles with regard to the scope of the powers of  the appellate Court in an appeal against acquittal are well  settled.  The  powers  of  the  appellate  Court  in  an   appeal against acquittal are no less than in an appeal   against conviction. But where on the basis of evidence  on record two views are reasonably possible the appellate  Court cannot substitute its view in the place of that of the  trial Court. It is only when the approach of the trial Court  in acquitting an accused is found to be clearly erroneous  in its consideration of evidence on record and in deducing  conclusions  therefrom  that  the  appellate  Court  can  interfere with the order of acquittal”.

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19. This Court, in several cases, has taken the consistent view that  

the appellate Court, while dealing with an appeal against acquittal,  

has  no  absolute  restriction  in  law to  review and relook  the  entire  

evidence on which the order of acquittal is founded. If the appellate  

Court, on scrutiny, finds that the decision of the Court below is based  

on  erroneous  views  and  against  settled  position  of  law,  then  the  

interference of the appellate Court with such an order is imperative.

20. This Court in  Chandrappa   V.  State of Karnataka,  (2007) 4  

SCC 415, after referring to a catena of decisions, has laid down the  

following general  principles with regard to powers of  the appellate  

Court while dealing with an appeal against an order of acquittal:

“42.  From the above decisions, in our considered view,  the following general principles regarding powers of the  appellate Court while dealing with an appeal against an  order of acquittal emerge :

(1)An  appellate  Court  has  full  power  to  review,  reappreciate and reconsider the evidence upon which  the order of acquittal is founded.

(2)The  Code  of  Criminal  Procedure,  1973  puts  no  limitation, restriction or condition on exercise of such  power  an  appellate  Court  on  the  evidence  before  it  may reach its  own conclusion,  both  on questions of  fact and of law.

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(3)Various  expressions,  such  as,  ‘substantial  and  compelling  reasons’,  ‘good  and  sufficient  grounds’,  ‘very  strong  circumstances’,  ‘distorted  conclusions’,  ‘glaring  mistakes’,  etc.  are  not  intended  to  curtail  extensive powers of an appellate Court in an appeal  against acquittal. Such phraseologies are more in the  nature  of  ‘flourishes  of  language’  to  emphasise  the  reluctance  of  an  appellate  Court  to  interfere  with  acquittal  than  to  curtail  the  power  of  the  Court  to  review the evidence and to come to its own conclusion.

(4)An appellate Court, however, must bear in mind that in  case of acquittal, there is double presumption in favour  of the accused. Firstly, the presumption of innocence is  available  to  him  under  the  fundamental  principle  of  criminal  jurisprudence  that  every  person  shall  be  presumed to be innocent unless he is proved guilty by  a  competent  Court  of  law.  Secondly,  the  accused  having  secured  his  acquittal,  the  presumption  of  his  innocence  is  further  reinforced,  reaffirmed  and  strengthened by the trial Court.

(5)If  two  reasonable  conclusions  are  possible  on  the  basis of the evidence on record, the appellate Court  should not disturb the finding of acquittal recorded by  the trial Court.”

21. Reason is  the  heartbeat  of  every  conclusion,  without  proper  

reason the conclusion becomes lifeless. Having carefully considered  

the impugned judgment and order passed by the High Court as also  

that  of  the  Trial  Court  and  after  perusing  the  records  and  giving  

anxious consideration to the facts of the case on hand in the light of

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well-settled law, in our considered opinion the judgment of the High  

Court deserves to be set aside on the ground of lack of reasoning  

and for the following compelling and substantial reasons:

i) The High Court had taken a view that PW 1 – Bhola Singh,  

father  of  the  deceased  (brother  of  the  appellant  before  us)  had  

changed his version at the time of second Chief Examination.  Upon  

giving our anxious consideration to the chronology of events, we find  

that  after  commencement  of  the  trial,  the  evidence  of  PW1  was  

started  on  9.8.1996  and  the  chief-examination  was  concluded  on  

21.8.1996.  On  9.1.1997  the  cross-examination  was  started  and  

further on 29.5.1997 the second Examination-in-chief was started as  

some  of  the  accused  had  surrendered  before  the  Court  in  the  

meanwhile.  Second  time  Examination-in-chief  was  conducted  on  

29.5.1997 and ended up on 19.06.1997. Second Cross-examination  

started on 17.07.1997 which was further conducted on 24.7.1997.  As  

seen from the various dates, the record indicates that the first chief-

examination of PW 1, which started on 09.08.1996, was concluded  

after completing the second cross-examination on 24.7.1997.  So, it  

is clear from the evidence of PW 1 itself that the examination and  

cross-examination  had  taken  place  several  times  in  a  piece-meal

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manner and the Court was forced to conduct the chief-examination  

repeatedly  because  of  the  subsequent  surrender  of  some  of  the  

accused  persons.  While  appreciating  the  evidence  of  PW1,  the  

Courts  must  be  conscious  of  the  length  of  time  consumed  in  

recording the evidence of the prosecution witness. From a perusal of  

the evidence of PW1, the High Court was of the opinion that there  

were discrepancies and deviations in the evidence of PW1. In our  

considered opinion, the evidence of PW 1, who is an eyewitness who  

lost three sons in the fateful incident was consistent and there are no  

major  deviations  or  discrepancies  and  if  at  all  any  minor  

discrepancies that occurred in the evidence of PW1 might have been  

due to the long gap between the date of incident and the long delay in  

examination,  more  so,  those  discrepancies  are  not  material  in  

bringing home the guilt of the accused, we find no reason whatsoever  

to  disbelieve  his  evidence.  The  statements  of  PW  1  are  fairly  

corroborated  by  the  statements  of  PW  2.  Hence,  we  are  of  the  

considered opinion that the occurrence had taken place in front of  

Baithaka of  PW1—Bhola  Singh  and  he  had  witnessed  the  said  

occurrence along with PW-2 Baijnath and the injured Ganga Singh.

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ii) Similarly,  we  find  no  reason  whatsoever  to  disbelieve  the  

evidence of PW2 (brother-in-law of PW1 Bhola Singh), another key  

eyewitness present at the time of incident. A valiant attempt is also  

made  by  the  defence  to  discredit  his  evidence  that  he  is  only  a  

chance  witness  and  not  an  eyewitness  to  the  incident  and  his  

presence is doubtful. But, nothing has come out in his examination-in-

chief or in cross-examination which creates a doubt on the veracity of  

his statement.  Moreover, he has been consistent in his version and  

fully supported the prosecution story.  However, his admission that at  

the time of panchnama, he has signed as suggested by the Darogaji  

and PW1 asked him as to whose names should be written and whose  

names should be left out in the panchnama, have to be seen in the  

context  of  preparing  the  panchnama  and  shall  not  be  attributed  

otherwise to disbelieve his evidence.

iii) We  are  of  the  view  that  the  High  Court,  for  acquitting  the  

respondents, had mainly relied upon the medical evidence in a very  

inappropriate manner. When the doctor (PW 7) in his examination-in-

chief had categorically stated that the incident could have occurred at  

8.00 a.m. which corroborated the case of the informant, there was no  

reason  to  disbelieve  this  fact  to  hold  that  the  incident  occurred

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between 2.00 to 4.00 a.m. merely basing on a vague statement made  

by the Doctor in the cross-examination. Also we believe that merely  

for the reason that no blunt injuries were present on the deceased,  

the whole evidence of PW 1 cannot be discarded as primacy has to  

be  given  to  the  ocular  evidence  particularly  in  the  case  of  minor  

discrepancies.  This Court  in  Darbara Singh Vs. State of Punjab,  

(2012) 10 SCC 476, wherein this Court has held :  

“…. So far as the question of inconsistency between the  medical evidence and the ocular evidence is concerned,  the  law  is  well  settled  that,  unless  the  oral  evidence  available  is  totally  irreconcilable  with  the  medical  evidence, the oral evidence would have primacy.  In the  event of contradictions between medical and ocular   evidence, the ocular testimony of a witness will have   greater  evidentiary value vis-à-vis medical  evidence  and  when  medical  evidence  makes  the  oral  testimony  improbable,  the same becomes a relevant factor  in the  process of evaluation of such evidence. It is only when  the contradiction between the two is so extreme that   the  medical  evidence  completely  rules  out  all   possibilities of the ocular evidence being true at all,   that the ocular evidence is liable to be disbelieved.”

iv) We  are  also  of  the  opinion  that  the  place  of  occurrence  is  

proved beyond doubt in the light of evidences of PW 1 (Bhola Singh),  

PW 2 (Baijnath),  PW 3 (Constable Ram Manohar Maurya) and PW 4  

(Riyayatullah Khan—Sub Inspector). Apart from this, the investigating  

officer had recovered blood stained roll of the clay and plain clay from

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the place of  incident (Ext.Ka-8) and also had recovered cartridges  

from the place of the incident. Even as per the forensic report human  

blood  was  found  on  the  roll  of  clay  (Ext.Ka-37).  The  aforesaid  

circumstance would clearly establish that the place of incident was  

the baithka of the informant and not the village pakvainar as alleged  

by the defence.  

v) Coming to the issue of non-examination of the injured witness  

Ganga  Singh,  it  is  relevant  to  point  out  that  the  trial  Court  had  

appreciated  the  fact  that  though  the  prosecution  had  made  an  

attempt  to produce Ganga Singh,  they failed to  do so as he was  

kidnapped  at  the  relevant  period.  This  stands  proved  by  the  

registration  of  two  FIRs  dated  12.09.1997  and  06.10.1997  which  

establish the fact that Ganga Singh was threatened and kidnapped.  

Therefore, non-examination of injured Ganga Singh could not be fatal  

to the case of the prosecution and the same cannot be a ground to  

disregard the evidence of PWs 1 & 2. Thus, no adverse inference can  

be drawn against the prosecution for not examining Ganga Singh, the  

injured witness [Also see :   Rajan Rai  v.  State of Bihar,  2006(1)  

SCC 191].

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vi) As far as the non-examination of any other independent witness  

is concerned, there is no doubt that the prosecution has not been  

able to produce any independent witness. But, the prosecution case  

cannot  be  doubted  on  this  ground  alone.  In  these  days,  civilized  

people  are  generally  insensitive  to  come  forward  to  give  any  

statement in respect of any criminal offence. Unless it is inevitable,  

people normally keep away from the Court as they feel it distressing  

and  stressful.  Though  this  kind  of  human  behaviour  is  indeed  

unfortunate,  but  it  is  a  normal  phenomena. We cannot  ignore  this  

handicap of  the investigating agency in discharging their  duty.  We  

cannot  derail  the  entire  case  on  the  mere  ground  of  absence  of  

independent  witness  as  long  as  the  evidence  of  the  eyewitness,  

though interested, is trustworthy.

vii) It  has  been vehemently  argued  by  the  accused/respondents  

that the prosecution has failed to establish any motive for the alleged  

incident. However, the complainant had deposed about existence of  

land dispute between the parties and regarding the same complaints  

were made prior to the incident also.  The Trial Court had held that  

there was land dispute between the parties and for  the same the  

complainant had made complaints to the police (Ext. Ka-2 and Ka-3).

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We  concur  with  the  view  of  the  Trial  Court  that  the  accused—

respondents  had  enmity  with  the  complainant  party  over  a  land  

dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the  

incident,  could  not  be  an  after-thought  as  both  the  exhibits  bear  

signature  and  dates  on  which  these  were  received  by  the  police.  

Thus, in the light of above discussion, it can be safely held that the  

accused  respondents  had  strong  motive  to  commit  the  offence  

against the complainant party.   

viii) The  High  Court,  while  passing  the  impugned  judgment  and  

order,  has  failed  to  consider  that  the  two  respondents-accused  

Ramashray Singh and Kamla Singh had not succeeded in proving  

their plea of alibi.  It is evident from the letter of Ministry of Defence  

addressed  to  the  District  &  Sessions  Judge,  Mau  (Doc.263  Ka.)  

where  it  has  been  specifically  mentioned  that  the  accused  

Ramashray Singh and one Virender Singh (DW-1) had been directed  

to  proceed  to  Secunderabad  from  Pathankot  on  4.9.1994.  It  is  

mentioned that on 6.10.1994 said Virender Singh had deposited the  

fused missile  and Ramashray  Singh  accused respondent  was  not  

present on the said date and he presented himself at Secunderabad  

on 11.10.1994. As far as accused Kamla Singh is concerned, he had

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taken a plea of  alibi  stating that  he was posted as a Hawaldar in  

Jammu. However, he has failed to mark any evidence in this behalf.  

Also  it  was  stated  by  him  that  he  was  present  at  his  quarter  in  

Jammu. However, DW-4 Onkar Singh has stated that he, along with  

the  accused  Kamla  Singh,  had  gone  to  Vaishno  Devi  but  fails  to  

prove the same by adducing cogent evidence. Thus, on perusal of  

the material on record, we concur with the finding of the trial Court  

that the accused have failed to establish their plea of alibi.

ix) We are also of the considered opinion that the reasons given by  

the High Court to reverse the conviction and sentence of the accused  

are  flimsy,  untenable  and  bordering  on  perverse  appreciation  of  

evidence.

x) The trial  Court  has awarded death sentence to  Ramashraya  

Singh and Kamla Singh. On this issue, we are not able to concur with  

the view taken by the trial Court as the reasoning of the trial Court  

does not convince us that this is the rarest of the rare cases which  

warrants the penalty of death sentence.  

22. For  the  aforesaid  reasons,  we  reach  to  the  irresistible  

conclusion  that  these  appeals  deserve  to  be  allowed  and  the

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impugned judgment and order has to be set aside. Accordingly, we  

allow these  appeals  by setting aside the impugned judgment  and  

order passed by the High Court and modify the judgment and order  

passed by the Trial Court by convicting all the accused respondents  

to  life  imprisonment  under  Section  302/149  IPC  with  a    fine  of  

Rs.10,000/-.  In  default,  they  are  directed  to  undergo  rigorous  

imprisonment for six months. They are also convicted under Section  

307/149 IPC and sentenced to seven years’ rigorous imprisonment  

and  a  fine  of  Rs.5,000/-.  In  default,  they  shall  undergo  rigorous  

imprisonment for three months. Conviction under Section 148 IPC is  

also recorded against the accused respondents   and   they   are  

sentenced  to  two  years’  rigorous  imprisonment  and  a  fine  of  

Rs.1,000/-. In default, they have to undergo three months’ rigorous  

imprisonment.  All the sentences shall run concurrently.

.…………………J.   (DIPAK MISRA)

…………………J.   (N.V. RAMANA)

NEW DELHI, FEBRUARY 26, 2016