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REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal  No(s).  1213 OF 2014

STATE OF UTTAR PRADESH          Appellant(s)

                               VERSUS

OM PAL & ORS.                                                 Respondent(s)

JUDGMENT

N.V. RAMANA, J.

 This appeal by way of special leave petition is filed by the

State of Uttar Pradesh against the final judgment and order dated

6th April,  2007  passed  by  the  High  Court  of  Judicature  at

Allahabad  in  Criminal  Appeal  No.  2622  of  2005.  By  the  said

judgment, the High Court has acquitted the respondents who were

accused  in  Sessions  Trial  No.1090  of  2003  before  the  District

Court, Ghaziabad, Uttar Pradesh.

2. The prosecution case, in brief,  is that on 25-3-1993 at

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about 9.00 a.m. Mahipal (deceased) and his wife Prakashee (PW3)

were  going  to  their  fields  on  a  buffalo  cart  and  Tej  Pal,  Ram

Swaroop and Dharmendra (PW2) were following them. While they

were  on  their  way,  the  three  accused  (respondents  herein)

appeared out of a sugercane filed near the fields of one Alias, while

hurling abuses against Mahipal fired at him. The fire opened by

Om Pal was missed but the fire opened by Mukhtiar hit Mahipal.

Navin assaulted Mahipal  with the  butt  of  the Tamancha on his

head. On receiving information from Dharmendra (PW2) about the

incident,  Naresh  (PW1)  accompanied  by  Dharmendra  took  the

injured Mahipal to the police station, Babugarh and lodged FIR.

Thereafter,  on  the  way  to  hospital,  Mahipal  succumbed  to  the

injuries.

3. The Investigating Officer, Sub-Inspector R.K. Chaudhary

(PW6) carried the investigation, recorded statements, prepared site

plan (Ext. Ka-3), collected plain earth as well as blood stained earth

from the place of occurrence and after conducting inquest at the

hospital,  sent  the  dead  body  for  postmortem.  The  accused

Mukhtiar was arrested on 29.3.1993 near village Bacchrota and

from  his  possession  one  illegal  pistol  of  315  bore  and  one

ammunition cartridge (Ext.K.13) were recovered. On 8th April, 1993

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the I.O. recorded the statements of other accused Omal and Navin.

A Tamancha, allegedly used in the crime, was later recovered at the

instance of accused Ompal on 14.4.1993. The statement of the wife

of deceased (PW3) was recorded on 24.4.1993. After concluding the

investigation, the Judicial Magistrate, Hapur committed the case to

the Court of Sessions where charges were framed under Section

302, IPC read with Section 34, IPC against all the three accused

and additionally  charges were framed against  accused Mukhtiar

under Section 25 of the Arms Act. The accused pleaded not guilty

and claimed to be tried.

4. At  the  trial,  the  prosecution  mainly  relied  on  the

evidences  of  complainant—Naresh  Pal  (PW1)  and  eyewitnesses

Dharmendra (PW2) and Prakashee (PW3), wife of the deceased. The

motive  for  committing  the  crime was said  to  be  that  there  was

enmity between the parties as about three years before the date of

occurrence, accused Mukhtiar was shot at and in that regard a

case was in progress at Hapur Court in which Mahipal (PW1) was

accused. P.W. 4—Pratap Singh was examined as a witness to prove

the  conspiracy.  P.W.5  is  Dr.  Hari  Kishan  Agarwal,  who  had

conducted the post mortem of deceased Mahipal. P.W. 6 S.I. R.K.

Chaudhary—I.O. and P.W. 7— Paltoo Ram, Head Constable are the

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formal witness. At the end of the trial, the Trial Court came to the

conclusion that the prosecution has successfully proved the guilt of

the  accused.  Accordingly,  the  accused  were  convicted  under

Section  302  read  with  34,  IPC  and  sentenced  to  suffer  life

imprisonment and to pay a fine of Rs. 5,000/- each and in default

thereof, to further suffer six months rigorous imprisonment.

5. The  trial  Court’s  judgment  awarding  conviction  and

sentence  has  been  assailed  by  the  accused  by  way  of  criminal

appeal  before  the  High  Court.  On  appreciation  of  the  material

placed  before  it,  the  High  Court  recorded  its  finding  that  the

prosecution witnesses, on whose evidence the trial Court has relied

on,  are  not  reliable.  Accordingly,  the  High  Court  set  aside  the

judgment of the trial Court and acquitted all  the three accused.

Dissatisfied with the acquittal order passed by the High Court, the

State of Uttar Pradesh has preferred the present appeal before this

Court.

6. We have heard the learned counsel appearing on behalf

of the appellant and the learned Amicus Curiae appearing on behalf

of the respondents.

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7. Learned counsel for the State vehemently contended the

impugned order and submitted that the High Court has failed to

appreciate the factum of presence of two eyewitnesses PWs 2 and 3

at  the  spot,  who  deposed  in  clear  terms the  way  in  which  the

accused carried the assault on the deceased resulting in his death.

The injuries  on the  body of  the  deceased fully  corroborates  the

prosecution case and the medical evidence also supports the case

of prosecution, but the High Court has, by setting aside the well

reasoned judgment rendered by the trial Court, committed a grave

error of law calling for this Court’s interference.

8. Learned  Amicus  Curiae,  however,  supported  the  view

taken by the High Court and submitted that there is no need for

this Court to interfere with the order of  acquittal  passed by the

High Court.

9. Having  heard  learned  counsel  on  either  side,  we  have

given our thoughtful consideration to the facts and circumstances

of the case in the light of material placed before us. It appears that

the  trial  Court  based  its  judgment  mainly  relying  upon  the

evidences of three prosecution witness i.e. P.W.1—Naresh Pal, the

complainant,  PW2—Dharmendra,  an  eyewitness  and  PW3—

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Prakashee, another eyewitness and wife of the deceased. However,

in the view expressed by the High Court, the aforesaid witnesses

are not credible. Since the entire prosecution case hinges on the

depositions of these three witnesses, it is imperative for the Court

to scrutinize their evidences properly so as to sift the chaff from the

grain and find out the truth. In that pursuit, their evidences are to

be  considered  from  the  point  of  view  of  credibility  and

trustworthiness. Once the same stands satisfied, it ought to inspire

confidence in the mind of the Court to accept the stated evidence.

10. Admittedly, the complainant—PW1 has not witnessed the

occurrence. He believed whatever Dharmendra (PW2) informed him

and accordingly he lodged the complaint.  It  is  also indisputable

that PW1 was inimical with the respondent party. There was also a

criminal  case pending in Hapur Court relating to an incident of

firing at the accused, in which the deceased as well as PW1 were

accused and Respondent No.3 herein was the victim. It is evident

from the record that on the aspect of how PW1 came to know about

the  incident,  he  made  contradictory  statements.  There  was  no

independent  witness  and  according  to  prosecution,  despite  the

efforts made by police to record statements from the public, no one

was ready to give evidence. As per the statement of PW1, besides

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PWs 2 & 3, two more persons Tej Pal and Ram Swaroop have also

witnessed  the  incident.  It  is  quite  unnatural  that  none  of  the

eyewitnesses has lodged complaint, but on the basis of information

provided  by  Dharmendra  (PW2),  PW1  lodged  the  complaint

believing the version of Dharmendra.

11. On the other hand, the conduct and statements of PW2

(Dharmendra) who was stated to be an eyewitness do not inspire

confidence for the reason that his depositions under Section 161,

Cr.P.C. were quite different to what he stated before Court in his

examination-in-chief. He could not even give a satisfactory reason

for his presence at the time and place of occurrence. Furthermore,

he did not choose to lodge complaint with the police by himself

even though he had witnessed the occurrence as admittedly the

complaint was lodged by PW1 on the information provided by PW2.

Apart from that, there were certain conflicting statements in his

evidence as regards how the deceased got injuries,  and also his

conduct of not making a hue and cry and not disclosing to anyone

about the occurrence on his way to the house of Naresh Pal, gives

rise to suspicion on the credibility and trustworthiness of  PW2.

When the evidence of PW2 itself is unbelievable and jeopardizing

the prosecution case, in no manner the evidence of PW1 could be

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given credence.  

12. We are also not inclined to believe the conduct of PW3—

wife of the deceased, who was stated to be in a shock and not in

consciousness for about a month after the death of her husband.

We find no valid documentary or medical  evidence on record in

support of the claim of prosecution that PW3 was really in such

unconscious state for  about a month.  Looking at  the unnatural

behavior  of  eyewitnesses  PWs  2  &  3  and  their  contradictory

statements, it cannot be said that their evidences are genuine so as

to convict the accused.

13. Also there  were  some notable  flaws in the  prosecution

case which cannot be ignored. According to PW4 (Pratap Singh), on

the previous night of the incident, he along with one Jakar (not

examined) heard the accused hatching conspiracy to murder the

deceased, but the prosecution did not present Jakar as a witness.

It is incredible on the part of PW4 that despite knowing about the

conspiracy, he did not reveal it to the victim party so as to save the

life of the deceased. The trial Court also disbelieved his evidence.

14. The High Court,  while  appreciating the evidence of  the

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three important witnesses i.e. PWs 1, 2 and 3, rightly disbelieved

the  presence  of  PWs  2  and  3  at  the  place  of  occurrence  and

discredited the evidence of P.W.1—complainant.  Undoubtedly, the

prosecution in its effort to establish the case with the support of

evidences of PWs 1, 2 and 3, has miserably failed to prove the guilt

of  the  accused beyond reasonable  doubt.   The High Court  has,

therefore, committed no illegality or manifest error in acquitting the

accused giving them the benefit of doubt, under the circumstances.

We express our concurrence with the findings recorded by the High

Court for acquitting the respondents. For the aforesaid reasoning,

we do not find any merit in this appeal calling for our interference

under Article 136 of the Constitution.

15. Accordingly, the Criminal Appeal filed by the appellant –

State of U.P. is dismissed.

................................J.          (N.V. RAMANA)

...............................J.    (S.ABDUL NAZEER)

NEW DELHI, MARCH 21, 2018.