REPORTABLE IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS.21-22 OF 2011

STATE OF MADHYA PRADESH                   …Appellant

VERSUS

CHHAAKKI LAL AND ANOTHER                  …Respondents WITH

CRIMINAL APPEAL NOS.23-24 OF 2011

RAMVEER                      …Appellant

VERSUS

CHHAAKKI LAL AND ANOTHER    …Respondents

J U D G M E N T

R. BANUMATHI, J.

These appeals arise out  of  the judgment of  the High court  of

Madhya Pradesh in Criminal Death Reference No.2 of 2008 in and by

which  the  High  Court  has  allowed  the  appeal  filed  by  the

respondents-accused  thereby  acquitting  the  respondents-accused

under Section 302 IPC and setting aside the death penalty awarded to

the respondents/accused and his  son accused Akhilesh by the trial

court.  

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2. During  the  pendency  of  these  appeals,  respondent  No.2-

Akhilesh  had  died  and  by  the  order  dated  28.02.2017,  the  appeal

against respondent No.2 was dismissed as abated.

3. Briefly stated case of the prosecution is that on 20.02.2006 at

about  12.00-12.30  p.m.,  Kesar  Bai  (PW-1),  her  daughter-in-law

deceased Phoolwati and grandson Rinku aged three years were going

towards the field to cut the mustard crop. Deceased Ganeshi Bai who

was the daughter of Kesar Bai (PW-1) and deceased Ganga Singh

who was the son of the jeth of Ganeshi Bai were little ahead to them.

As soon as Kesar Bai reached near Madhawala Danda on the public

way, she heard the sound of four to five gun-shots fired and saw the

accused firing at Ganga Singh and Ganeshi Bai. Thereafter, accused

Chhaakki Lal and his son Akhilesh carrying the guns came towards

them from the front side.  Chhaakki Lal told Kesar Bai (PW-1) that they

have already killed her daughter, Ganeshi Bai and Ganga Singh and

now  the  turn  is  hers.  Chhaakki  Lal-accused  No.1  then  fired  at

Phoolwati  in  her  abdomen,  the  second  fire  was  fired  by  Akhilesh-

accused No.2 at Rinku. Then accused-Chhaakki Lal jumped on the

child Rinku due to which the intestines of Rinku tossed out because of

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the impact and as a result,  he died on the spot.  Kesar Bai (PW-1)

challenged the accused persons and said ‘what are you waiting for, kill

me now’. Chhaakki Lal is said to have replied that he would not kill her

as she will die automatically after looking at these incidents. Complaint

- Dehati Nalishi (Ex. P-1) was recorded on 20.02.2006 and after initial

investigation,  FIR was registered  under  Section  302  IPC read  with

Section 34 IPC and Sections 25, 27, 29 and 30 of the Arms Act against

both the accused persons (Ex. P-25-26).  

4. Dr. S.K. Singh Niranjan (PW-6) conducted post-mortem on the

dead bodies of all the four deceased namely Phoolwati, Rinku Singh,

Ganeshi  Bai  and  Ganga  Singh  and  noted  the  injuries  and  issued

post-mortem certificates.  Accused  Chhaakki  Lal  and  Akhilesh  were

arrested  on  26.02.2006.  Based  on  the  disclosure  statement  of

Chhaakki  Lal-accused  No.1,  a  katta had  been  seized  vide seizure

memo               Ex. P-20.  Based on the disclosure statement of

Akhilesh-accused No.2, a 12 bore gun along with two live cartridges of

12 bore was seized from Akhilesh.  Also a gun licence of accused-

Chhaakki Lal had been seized from Akhilesh vide seizure memo Ex. P-

21. According to the FSL reports (Exts. P-31, P-32 and P-33), the fired

kartoos Ex.EC-1 to Ex.EC-4 had been fired by pistol Ex. A-4, the two

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live kartoos Ex. LR-1 and LR-2 could be fired by 12 bore gun/bandook

(Ex. A-3), Exs. EB-1 and EB-2 was fired by rifle weapon. Ex.-EB-3 can

be part of Ex.-EB-2.

5. To  bring  home  the  guilt  of  the  accused,  prosecution  has

examined                PW-1 to PW-13 and exhibited number of

documents. The accused were questioned under Section 313 Cr.P.C.

about the incriminating evidence and circumstances and the accused

denied  all  of  them.  Accused in  their  defence  stated  that  deceased

Ganga Singh  was a  person  of  criminal  character  who was also  in

collusion  with  dacoits  and  engaged  in  theft  and  snatching.  The

accused persons have stated that due to previous enmity, they have

been falsely implicated. Upon consideration of evidence of Kesar Bai

(PW-1) and other evidence adduced by the prosecution, the trial court

held accused Nos.1 and 2 guilty under   Section 302 IPC read with

Section 34 IPC.  The trial court held that the case would come under

the category of ‘rarest of rare cases’ and awarded death penalty to

both the accused persons apart  from imposing a fine of  Rs.5,000/-

each.   In appeal, the High court allowed the appeal preferred by the

accused.  The High Court found that the evidence of sole eye witness

Kesar  Bai  (PW-1)  is  not  reliable  and  that  the  same  is  full  of

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contradictions and omissions.   The High Court  held  that  Kesar  Bai

(PW-1) is not a reliable witness and on those findings reversed the

verdict of conviction and acquitted the accused persons.   

6. Heard  learned counsel  for  the  State  of  Madhya Pradesh and

learned counsel for the respondents/accused.   Learned counsel for

the State of Madhya Pradesh submitted that the evidence of Kesar Bai

(PW-1) was credible and acceptable and the same was supported by

other  evidence  and  circumstances  and  the  High  Court  erred  in

disbelieving  the  evidence  of  Kesar  Bai  (PW-1).    It  was  further

contended that the delay in sending the weapons for examination to

Forensic Science Laboratory on 19.04.2006 which were recovered on

01.03.2006  was  a  mistake/omission  on  the  part  of  B.L.  Dhanele  -

Investigating Officer (PW-13) and the benefit of such omission cannot

be given to the accused.   It was urged that the High court was wrong

in  believing  the  story  of  the  defence  to  the  effect  that  all  the  four

deceased were killed by the dacoits as the deceased Ganga Singh

had illegal relations with the dacoits and the High court has failed to

see that the story of the defence was without any basis.  

7. Contention of the respondent/accused is that Kesar Bai (PW-1)

is  not  an  honest  and  trustworthy  witness  because there  are  lot  of

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improvements on important aspects in her court depositions on vital

aspects.   Assailing  the  evidence  of  Kesar  Bai  (PW-1),  the  learned

counsel inter alia made the following submissions:-

 In  her court  deposition,  Kesar Bai  (PW-1) claimed that  she

had witnessed the murder of Ganga Singh and Ganeshi Bai

whereas in the police complaint,  she stated that  she heard

four to five gun shots and thereafter when she reached there,

she saw the respondents/accused Chhaakki Lal and Akhilesh

proceeding towards them;

 Improved  version  of  Kesar  Bai  (PW-1)  as  to  the  overt  act

attributed to Chhaakki Lal that he threw Rinku on the ground

and jumped upon his abdomen region as a result of which his

intestines came out did not find place in the FIR.

8. The  learned  counsel  appearing  for  the  respondents-accused

submitted that the evidence of sole witness Kesar Bai (PW-1) could

not have formed the basis for conviction and the High Court has rightly

discarded the evidence of Kesar Bai (PW-1) and has rightly set aside

the conviction and acquitted the accused.  

9. We have carefully considered the rival contentions and perused

the impugned judgment, evidence and materials placed on record. The

point falling for consideration is whether the High court was right in

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reversing  the  verdict  of  conviction  of  the  respondents-accused and

acquitting them from the charges under Section 302 IPC.

10. It is the case where four people were murdered in the broad day

light. One of the deceased - Rinku was a child of three years of age.

Case of the prosecution is based upon the sole testimony of Kesar Bai

(PW-1).    In her evidence, Kesar Bai (PW-1) has stated that Ganga

Singh and Ganeshi Bai had gone ahead for cutting the neem tree and

that she (PW-1), her daughter-in-law Phoolwati and grandson Rinku

were following them.  Kesar Bai (PW-1) stated that when they reached

at Madhawala Danda, Ganga Singh was at a distance of 10-15 feet

and that she saw accused Chhaakki Lal and Akhilesh firing gun-shot at

Ganga Singh  and thereafter  firing  gun-shot  at  Ganeshi  Bai.   Then

accused-Chhaakki  Lal  and  Akhilesh  came  towards  Phoolwati  and

Chhaakki Lal fired the bullet in the abdomen of Phoolwati.  Akhilesh

also fired at Phoolwati. Akhilesh fired at Rinku and Chhaakki Lal had

thrown  Rinku  on  the  ground.  Chhaakki  Lal  also  fired  at  Rinku.

Chhaakki  Lal  climbed  over  Rinku  and  jumped,  due  to  which,  his

intestines came out. When Kesar Bai (PW-1) told them to kill her also

by firing, Chhaakki Lal replied that they would not kill her and that she

had to see all these things and then she would die automatically.   

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11. Thakurdas (PW-2) who is Village Chowkidar stated that he had

heard about the incident from Kesar Bai (PW-1) and gone to the place

of the incident and saw the dead bodies of Ganga Singh, Ganeshi Bai,

Phoolwati and Rinku. Thakurdas (PW-2) stated that when he reached

the  village,  Kesar  Bai  (PW-1)  was  weeping  and  she  told  him  that

Chhaakki Lal and his son Akhilesh had committed all the four murders

when they were going towards the field.  

12. The prosecution case revolves around the solitary testimony of

eye-witness Kesar Bai (PW-1) which was accepted by the trial court as

trustworthy. While reversing the verdict of conviction, the High Court

held  that  the  evidence  of  Kesar  Bai  (PW-1)  is  fraught  with

inconsistencies and hence, her evidence is not reliable. The High court

pointed out that the evidence of Kesar Bai (PW-1) is exaggerated and

that  accused-Chhaakki  Lal  fired  at  Rinku  is  totally  missing  in  her

statement  (Ex.-P1).  The  High  Court  also  pointed  out  further

inconsistencies.

13. In her evidence before the court, Kesar Bai (PW-1) stated that

when  she  and  her  daughter-in-law  Phoolwati  and  grandson  Rinku

reached  near  Madhawala  Danda,  other  deceased  persons  namely

Ganeshi Bai and Ganga Singh were only ten paces away from them

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and that she saw both the accused firing at Ganga Singh and Ganeshi

Bai and thereafter the accused came towards her.  In Dehati Nalishi-

complaint (Ex.-P1), Kesar Bai (PW-1) stated that she heard four-five

gun shots and then saw the accused coming towards her telling that

they  have  killed  Ganeshi  Bai  and  Ganga  Singh  and  then  fired  at

Phoolwati and child Rinku.  The High Court held that in the version of

Kesar Bai (PW-1) before the court, there is a material improvement

and that the evidence of Kesar Bai (PW-1) is not reliable.   

14. Of course, there is a slight improvement in the version of Kesar

Bai (PW-1) before the court but the circumstance under which Dehati

Nalishi-complaint (Ex.-P1) was recorded has to be seen.  Kesar Bai

(PW-1) has lost her four kith and kin.  At the time when Dehati Nalishi-

complaint (Ex.-P1) was recorded, Kesar Bai (PW-1) must have been

grief-stricken and under mental trauma and she might have stated that

she heard four-five gun shots and then saw the dead bodies of Ganga

Singh and Ganeshi Bai and then the accused came near Phoolwati

and child Rinku and fired at them.

15. Learned counsel for  the respondent/accused submitted that  in

her cross-examination, Kesar Bai (PW-1) stated about one assailant

Kailash and also named in  Dehati Nalishi and the said Kailash was

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detained by the police for one or two days after the incident but later

let off by the police because of the pressure.  It was submitted that

mention  of  another  assailant  Kailash  by  Kesar  Bai  (PW-1)  raises

serious doubts about the prosecution case.  Ex.-P1-Dehati Nalishi was

an earliest one lodged on the date of incident on 20.02.2006 at 05.15

pm.  Name of Kailash is not mentioned in Ex.-P1-Dehati Nalishi.  FIR

(Ex.-P25-26)  also  does  not  contain  the  name  of  alleged  assailant

Kailash.   Since  name  of  Kailash  was  not  mentioned  either  in  the

Dehati Nalishi or FIR, the answers elicited from Kesar Bai (PW-1) in

the cross-examination regarding Kailash does not affect her credibility.

It is also pertinent to point out that in her cross-examination, though

Kesar Bai (PW-1) had stated that Kailash was taken to police custody

after two to three days of complaint, Kesar Bai (PW-1) stated that she

cannot  say  that  whether  police  had  taken  Kailash  to  custody  in

connection with her case or other case.   

16. Though much arguments  are  advanced regarding  the  alleged

involvement of Kailash and that he was taken to custody, the entire

argument advanced qua one Kailash is based upon certain answers

elicited from Kesar  Bai  (PW-1).   The Investigating Officer  has also

denied that he has brought Kailash and one Ardaman and kept them in

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custody for 4-5 days.  He has also denied that based on the statement

of  Kesar  Bai  (PW-1),  he kept  their  guns.   Investigating Officer  has

denied  that  he  released  both  Kailash  and  Ardaman  due  to  some

pressure  and  falsely  involved  respondents/accused.  Investigating

Officer  has  also  denied  that  Kesar  Bai  (PW-1)  had  told  him  that

Kailash  and  Ardaman  had  done  the  incident  through  dacoits.

Investigating Officer has also denied that Kesar Bai (PW-1) had named

Kailash and Ardaman in her statement and the same was not written

by him.    In the light of categorical denial by the investigation, there is

no merit in the contention of the respondent/accused as to the alleged

involvement of Kailash.   

17. In his evidence, Ram Naresh (PW-3) stated that the dead bodies

of Ganeshi Bai and Ganga Singh were found close to each other and

that dead bodies of Phoolwati and Rinku were at a distance of 25-30

feet away from the dead bodies of Ganeshi Bai and Ganga Singh.  In

his statement, B.L. Dhanele - Investigating Officer (PW-13) has stated

that dead body of Phoolwati was at a distance of about fifty yards from

the dead bodies of Ganeshi Bai and Ganga Singh and that has been

mentioned by him in the Site Plan (Ex.-P24).

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18. After  referring to the Site Plan (Ex.-P24)  and the evidence of

Ram Naresh (PW-3) and PW-13-IO, the trial court pointed out that the

place  where  Phoolwati  and  Rinku  were  shot  and  dead  bodies  of

Ganeshi Bai and Ganga Singh were found, were at a short distance of

about fifty yards.  The trial court observed that since the distance was

not far away, case of the prosecution that Ganga Singh, Ganeshi Bai,

Phoolwati and Rinku were all shot by the accused in the course of the

same transaction  is  established  by  the  oral  evidence  of  Kesar  Bai

(PW-1)  and  also  by  the  Site  Plan  (Ex.-P24).  After  referring  to  the

evidence of PW-13-Investigating Officer and Site Plan (Ex.-P24), when

the trial court has recorded that the firing of all the four deceased were

in the course of  the same transaction,  the High Court  ought not  to

have  doubted  the  version  of  Kesar  Bai  (PW-1)  on  the  slight

improvement made in her evidence.  For the sake of arguments, even

assuming that PW-1 could not have seen the firing at Ganeshi Bai and

Ganga Singh,  her  evidence is  to  be accepted to  the  extent  of  the

occurrence of firing at deceased Phoolwati  and child Rinku.  In her

statement  Kesar  Bai  (PW-1)  has stated that  after  gun shot  fired at

deceased Rinku, accused-Chhaakki Lal threw the child Rinku on the

ground  and  also  jumped  on  his  abdomen,  as  a  result  of  which

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intestines came out. The learned counsel for the respondents-accused

submitted  that  Chhaakki  Lal  jumping  on  the  abdomen of  the  child

Rinku was not mentioned in Dehati Nalishi (Ex.P.1) and FIR and this

material  omission suggests  that  Kesar  Bai  (PW-1)  exaggerated her

version about throwing of child Rinku on the floor and jumping on his

abdominal region.  

19. FIR is not an encyclopaedia which is expected to contain all the

minute details of the prosecution case, it may be sufficient if the broad

effects of the prosecution case are stated in the FIR. In this case, firing

by accused-Chhaakki Lal at child Rinku was stated in the FIR and the

omission of minute detail that Chhaakki Lal jumped on the abdomen of

child Rinku cannot be regarded as fatal to the prosecution case. As

discussed earlier, the effect of the occurrence on the mind of an old

woman like Kesar Bai (PW-1) cannot be measured in yardstick. Being

grief-stricken because of the death of her four kith and kin, it may not

have occurred to Kesar Bai (PW-1) to narrate all the minute details of

the occurrence. The non-mention of  accused-Chhaakki Lal  throwing

the child Rinku on the ground and jumping on his abdomen due to

which  the  intestine  came  out  cannot  be  regarded  as  fatal  to  the

prosecution case.  

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20. The High Court acquitted the accused merely on the ground that

the evidence of Kesar Bai (PW-1) is fraught with contradictions.  Kesar

Bai (PW-1) was a rustic villager and also aged. After seeing her own

daughter and daughter in law and grandson being put to death, she

must  have been under  tremendous shock.   Kesar  Bai  (PW-1)  was

deposing in the court after some time.  Naturally, there are bound to be

variations  from  her  earlier  version.   The  trial  court  which  had  the

opportunity to observe the demeanour of the witnesses found that the

evidence of PWs is credible and trustworthy.  While so, the High Court

ought  not  to  have  recorded  a  finding  raising  doubts  about  the

credibility of Kesar Bai (PW-1).  

21. The trial court had the opportunity of seeing and observing the

demeanour of the witnesses and the views of the trial court as to the

credibility  of  the  witnesses  is  entitled  to  great  weight.   Unless  the

appreciation of evidence by the trial court was vitiated by serious error,

the  findings  recorded  by  the  trial  court  ought  not  to  have  been

interfered by the High Court.

22. In  our  considered  view,  the  High  court  erred  in  doubting  the

testimony of Kesar Bai (PW-1). It would be unreasonable to contend

that merely because Kesar Bai (PW-1) is related to the deceased and

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that there were contradictions in her evidence, her evidence has to be

discarded.  Discrepancies  which  do  not  shake  the  credibility  of  the

witness  and  the  basic  version  of  the  prosecution  case  are  to  be

discarded.   If the evidence of the witness as a whole contains the ring

of  truth,  the  evidence  cannot  be  doubted.    In  Prithu  alias  Prithi

Chand and Another v. State of Himachal Pradesh (2009) 11 SCC

588, it was held as under:-

“14. In Bharwada Bhoginbhai Hirjibhai v. State of Gujarat (1983) 3 SCC 217, it  was observed that undue importance should not be attached to omissions, contradictions and discrepancies which do not go to the root of the matter and shake the basic version of the prosecution witnesses. A witness cannot be expected to possess a photographic  memory  and  to  recall  the  details  of  an  incident verbatim. Ordinarily, it so happens that a witness is overtaken by events. A witness could not have anticipated the occurrence which very often has an element of surprise. The mental faculties cannot, therefore, be expected to be attuned to absorb all the details. Thus, minor  discrepancies  were  bound  to  occur  in  the  statement  of witnesses.”

The same principle was reiterated in  State of U.P. v. M.K. Anthony

(1985) 1 SCC 505.  

23. The High court proceeded on the footing that the evidence of

Kesar Bai (PW-1) being the solitary witness is not reliable to base the

conviction unless corroborated in  material  particulars.  As discussed

above, so far as the place of occurrence is concerned, the evidence of

PW-1 is amply corroborated by other evidence.  It is fairly well settled

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that it is not the number; but the quality of the evidence that matters. In

terms of Section 134 of the Evidence Act,  “no particular number of

witnesses shall in any case be required for the proof of any fact”.  The

test whether the evidence has a ring of truth is cogent and trustworthy.

In  Prithipal  Singh  and  Others  v.  State  of  Punjab  and  Another

(2012) 1 SCC 10, it was held as under:-

“49. This court has consistently held that as a general rule the court can and may act on the testimony of a single witness provided he is wholly reliable. There is no legal impediment in convicting a person on  the  sole  testimony  of  a  single  witness.  That  is  the  logic  of Section 134 of the Evidence Act. But if there are doubts about the testimony, the court will insist on corroboration. In fact, it is not the number or the quantity, but the quality that is material. The time- honoured  principle  is  that  evidence  has  to  be  weighed  and  not counted. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy or otherwise. The legal system has laid emphasis on value, weight and quality of evidence, rather than on  quantity,  multiplicity  or  plurality  of  witnesses.  It  is,  therefore, open to a competent court to fully and completely rely on a solitary witness  and  record  conviction.  Conversely,  it  may  acquit  the accused  in  spite  of  testimony  of  several  witnesses  if  it  is  not satisfied about the quality of evidence.”

The same principle was reiterated in Sudip Kumar Sen alias Biltu v.

State of West Bengal and others (2016) 3 SCC 26.  

24. The version of the prosecution was doubted by the High Court on

the ground that FIR was registered after much delay.  As per Dehati

Nalishi-complaint (Ex.-P1), time of incident was at about 12.00-12.30

pm on 20.02.2006 and Dehati Nalishi-complaint (Ex.-P1) was written at

05.15 pm on the same day.  PW-13-IO stated that on 20.02.2006, he

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was on duty at Health Mela in Senwdha and on receipt of information

from SDO Smt. Rekha Singh, he reached the place of occurrence and

wrote  Dehati  Nalishi-complaint  (Ex.-P1).   After  the  inquest  and  the

preliminary investigation like preparation of spot map, seizure etc. on

20.02.2006,  FIR was registered  on  21.02.2006 at  about  02.00  pm.

Ramveer  (PW-8),  son  of  Kesar  Bai  (PW-1)  was not  present  in  the

village and that he had gone to see his sister.  When all  the family

members of PW-1 were killed and her son Ramveer (PW-8) away from

the village, it  cannot be accepted from Kesar Bai (PW-1) a seventy

years old rural woman to leave the dead bodies of family members at

the  spot  and  go  to  the  police  station  situated  at  a  distance  of  ten

kilometres to lodge the complaint.  As pointed out by the trial court, the

delay in registration of FIR has been properly explained.  

25. Delay in setting the law in motion by lodging the complaint or

registration of FIR is normally viewed by courts with suspicion because

there is possibility of concoction of the case against the accused. But

when there is proper explanation for the delay, the prosecution case

cannot be doubted on the ground that there was delay in registration of

FIR.   In this case, the delay in FIR has been properly explained and

the same is not fatal to the prosecution case.  

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26. The High Court referred to the evidence of Mewalal (PW-11) who

in  his  cross-examination  has  stated  that  he  saw  PW-1  weeping  at

08.00-09.00 am and that PW-1 told him that accused persons have

killed Ganga Singh, Ganeshi Bai, Phoolwati and Rinku.  Be it noted

that  Mewalal  (PW-11)  in  his  chief-examination  stated  that  at  about

12.00-12.30 pm, when he was present at his home in village Ruhera,

he heard the firing sound of five-six gun shots and that PW-1, mother-

in-law of Phoolwati passed from the passage crying and saying that the

accused Chhaakki Lal and Akhilesh had committed the murder of her

daughter-in-law  Phoolwati,  her  grandson  Rinku,  Ganeshi  Bai  and

Ganga Singh in  Mandawali  Dang.   Resiling  from his version in  the

chief-examination,  in  cross-examination,  PW-11 stated that  at  about

08.00-09.00 am, when he was in his house, PW-1 came to his house

saying  that  accused  Chhaakki  Lal  and  Akhilesh  have  committed

murder of her daughter-in-law Phoolwati, her grandson Rinku, Ganeshi

Bai and Ganga Singh.  The learned counsel appearing on behalf of the

respondent/accused  submitted  that  the  prosecution  has  not  treated

PW-11 hostile and the statement of PW-11 in his cross-examination

throws serious doubts about the time and the manner of occurrence.

Of course, PW-11 was not treated hostile; but his prevaricating version

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stood in the                  cross-examination neither affects his version in

the chief-examination nor  does it  affect  the prosecution case.   The

High  court  was  not  right  in  doubting  the  prosecution  case  and the

trustworthiness of Kesar Bai (PW-1) based on the evidence of an infirm

witness like PW-11.

27. The accused were arrested on 26.02.2006 and on the basis of

the disclosure statement recorded under Section 27 of the Evidence

Act,  on  01.03.2006,  one  0.315  bore  katta/desi  pistol  (Ex.-A4)  was

seized at  the instance of  accused Chhaakki  Lal  vide seizure memo

Ex.-P20.  One 12 bore gun (Ex.-A3) along with two live cartridges (Ex.-

EB1 and EB2) and a gun licence of accused Chhaakki Lal have been

seized  under  seizure  memo Ex.-P21  from accused  Akhilesh.   One

petal khoka of 0.315 bore (Ex.-P8) was recovered from the dead body

of Phoolwati.  Two fired cartridges of 0.315 bore (Ex.-P7) were found

near  the  dead  bodies  of  deceased  Ganeshi  Bai  and  Ganga  Singh

respectively.  In Ex.-P32 and Ex.-P33, the Ballistic expert opined that

the fired  kartoos (Ex.-EC1 to EC4) have been fired from 0.315 bore

katta/desi  pistol  (Ex.-A4).    Likewise,  in  Ex.-P32  and  Ex.-P33,  the

Ballistic  expert  opined that  the two live  kartoos (Ex.-LR1 and LR2)

could have been fired from 12 bore gun (Ex.-A3).  The opinion of the

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Ballistic expert tallying with the arms recovered from the accused is

seen from the following:-

Accused Fired at Arm recovered Opinion of Ballistic report

Chhaakki Lal (A1)

Phoolwati 315  bore  katta (Ex.  A4)  –  Desi Pistol  seized under Ex. P20

According to the FSL reports (Ex.-P31, P32  and  P33),  the  fired  kartoos  (Ex.- EC1  to  Ex.-EC4)  has  been  fired  by 0.315 bore katta,  a desi pistol (Ex. A4). EB-2 bullet recovered from the body of Ganga Singh was fired from 0.315 bore katta (Ex. A4). EB-3 can be part of EB- 2.

Akhilesh (A2)

Rinku 12  bore  gun (Ex.-A3) and two live  cartridges (EB1  +  EB2) seized  under Ex. P21

According to the FSL reports (Ex. P31, P32 and P33), two live kartoos (Ex.-LR1 and LR2) could be fired by 12 bore gun (Ex.-A3).  Ex.-EB-1 is fired by 12 bore gun (Ex.-A3) which was found from the dead body of Rinku.   

The opinion of the Ballistic expert that the fired kartoos has been fired

by  0.315  bore  katta/desi  pistol  (Ex.-A4)  recovered  from  accused

Chhaakki Lal and the opinion that live kartoos (Ex.-EB1 and EB2) were

fired  from  12  bore  gun  (Ex.-A3)  recovered  from  accused  Akhilesh

amply proves the involvement of the complicity of the accused in the

occurrence thereby corroborating the evidence of PW-1.

28. As  pointed  out  earlier,  country  made  pistol  of  315  bore  was

recovered from Chhaakki Lal on 01.03.2006 (seizure memo Ex.-P20)

and 12 bore gun was recovered from Akhilesh (Ex.-P21).  Contention

of  the learned counsel  for  the respondent  is  that  Ex.-P20 refers to

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recovery of 315 bore katta whereas the FSL report (Ex.-P32) speaks

about the examination of country made pistol of 0.315 bore.  Further

contention of the respondent/accused is that it has not been explained

as to how country made pistol of 315 bore has been transformed into

0.315 bore during FSL report (Ex.-P32).

29. Of  course,  in  Ex.-P20,  it  is  stated  that  315  bore  katta was

recovered from Chhaakki Lal and the same is also mentioned in the

sanction order under the Arms Act (Ex.-P14).  No doubt, in FSL report

(Ex.-P32), the gun which was examined by the ballistic expert is stated

as 0.315 bore katta.  There seems to be no variation in the pistol which

was  seized  by  the  police  and  the  one  that  was  examined  by  the

ballistic expert.  The difference seems to be only in the description of

315 bore katta and 0.315 bore katta.  Investigating Officer who seized

the weapon and the one who wrote Ex.-P20 are not ballistic experts

and are only laymen in so far as the examination of guns/pistol.  Any

slight variation in the description of katta recovered from Chhaakki Lal

does not make it a different katta from the one which was examined by

the ballistic expert (0.315 bore katta).

30. Contention  of  the  respondent/accused is  that  the FSL Report

does not say anything about the use of rifle by any of the assailants.  It

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was submitted that EB-1 and EB-2 cannot be fired by a country made

pistol of 0.315 bore or a gun of 12 bore and that EB-1 and EB-2 must

have been fired from some other big size gun.  It was submitted that

Kesar Bai (PW-1) has named one Kailash in her cross-examination

that the said Kailash was kept in custody for about four to six days and

the possibility  that  the gun recovered from Kailash was planted on

Chhaakki Lal cannot be ruled out.  It was further submitted that country

made pistol examined by the FSL must have been recovered only from

Kailash  and  the  discrepancies  between  the  recovery  and  the  FSL

report has not been properly explained.   

31. It appears that there is no 315 bore gun but only 0.315 bore gun.

The  description  given  by  the  police  that  the  recovered  gun  from

Chhaakki Lal was 315 bore gun is only a mistaken description.        

32. Investigating Officer has stated that Kesar Bai (PW-1) told in her

statement recorded by him that the accused used big guns. Kesar Bai

(PW-1) being a rustic village woman may not have been in a position

to  give  proper  description  of  the  gun;  the  accused  cannot  take

advantage of  the answers elicited from Kesar  Bai  (PW-1)  that  “the

accused  persons  were  holding  big  size  gun”  as  it  was  only  a

manner of description by a rustic villager like Kesar Bai (PW-1). The

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contention of the respondents that only “big sized gun” stated by Kesar

Bai  (PW-1)  could have been the gun of  Kailash who was taken to

custody  by  the  police  along  with  his  gun  and  later  released.  This

contention  does  not  merit  acceptance.  Investigation  Officer  has

categorically denied that the big guns were of Kailash and Ardaman.

Investigating Officer has also denied that because of pressure he did

not implicate Kailash and Ardaman and falsely implicated the accused.

33. For  reversing  the  verdict  of  conviction,  the  High  Court  has

pointed out that there was delay in sending the seized gun and pistol

(recovered  on  01.03.2006)  which  was  sent  to  the  FSL  only  on

19.04.2006.  The High Court has doubted the case of prosecution by

observing that apart from delay in sending the seized guns/pistol, there

is  no material  showing as to where the seized weapons were kept

during  the  period  from  01.03.2006  to  19.04.2006.   Such  delay  in

sending the recovered weapons to FSL could only be an omission or

lapse  on  the  part  of  the  Investigating  Officer.   Such  omissions  or

lapses  in  the  investigation  cannot  be  a  ground  to  discard  the

prosecution  case  which  is  otherwise  credible  and  cogent.  In

Nankaunoo v. State of Uttar Pradesh (2016) 3 SCC 317, it was held

as under:-

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“9. ……Any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined  dehors  such  omission  by  the  investigating  agency. Otherwise, it would shake the confidence of the people not merely in the law enforcing agency but also in the administration of justice”.

34. In  V.K.  Mishra  and  Another  v.  State  of  Uttarakhand  and

Another (2015) 9 SCC 588, it was held as under:-

“38. The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event, any omission on  the  part  of  the  investigating  officer  cannot  go  against  the prosecution. Interest of justice demands that such acts or omission of  the  investigating  officer  should  not  be  taken  in  favour  of  the accused or otherwise it would amount to placing a premium upon such omissions”.

35. We  are  conscious  that  in  an  appeal  against  acquittal,  the

appellate court would not ordinarily interfere with the order of acquittal.

But where the approach of the High Court suffers from serious infirmity,

this court can reappreciate the evidence and reasonings upon which

the order of  acquittal  is  based.  A miscarriage of  justice which may

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

of  the  innocent.   Upon  reappreciation  of  the  evidence  and  the

reasonings of the trial court and the High Court, in our considered view,

the judgment of the High Court suffers from serious infirmity.  The High

Court  erred  in  doubting  the  version  of  PW-1-the  sole  eye  witness

whose  evidence  is  corroborated  by  the  medical  evidence  and  the

evidence of  ballistic  expert.   The High Court  did not  appreciate the

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evidence of PW-1 in proper perspective and erred in disbelieving her

version on the contradictions which are not material.  The High court

erred in rejecting the credible evidence of Kesar Bai (PW-1), which in

our considered view resulted in serious miscarriage of justice, where

four persons were murdered.    

36. Where the evidence has not been properly analysed or the High

court has acted on surmises and findings of the impugned judgment is

unreasonable,  it  is  the  duty  of  the  appellate  court  to  set  right  the

wrong. In the instant  case, the High court  has ignored the credible

evidence of Kesar Bai (PW-1) and unnecessarily laid emphasis on the

minor contradictions and omissions.  However, the order of acquittal by

the High court cannot be sustained and the judgment of the trial court

is to be restored.

37. After convicting the accused Chhaakki Lal and Akhilesh under

Section 302 IPC, the trial court held that the case would be one of the

‘rarest of rare cases’ and awarded death penalty. The occurrence was

of the year 2006 and moreover, the appeal against second accused –

Akhilesh  has  been  abated  due  to  his  passing  away.   Therefore,

considering the facts and circumstances of the case and the passage

of  time,  we  are  of  the  view that  awarding  of  death  penalty  is  not

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warranted  and  imposing  sentence  of  life  imprisonment  upon  the

respondents/accused Chhaakki Lal would meet the ends of justice.

38. In  the  result,  the  impugned  judgment  is  set  aside  and  these

appeals  are  allowed.  The judgment  of  the  trial  court  convicting the

respondent/accused Chhaakki Lal under Section 302 IPC is restored

and the respondent/accused is sentenced to undergo imprisonment for

life.   The  respondent/accused  Chhaakki  Lal  shall  surrender  himself

forthwith within a week to serve the remaining sentence failing which

he shall be taken into custody.

…………….……………J.  [R. BANUMATHI]

…………….……………J.   [VINEET SARAN]

New Delhi; September 26, 2018

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