Full Judgment Text
NON-REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1651 of 2019
NATTHU SINGH …APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH …RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
1. The present appeal challenges the judgment and order
th
dated 25 April 2019 passed by the High Court of
Allahabad, thereby dismissing the appeal filed by the
present appellant and accused No.2-Rajesh, challenging
the judgment and order passed by the learned Additional
Sessions Judge, Jalaun at Orai (hereinafter referred to as
“the trial court”) in Sessions Trial No.223/2004, convicting
the accused-Rajesh under Section 302 of the Indian Penal
Signature Not Verified
Code, 1860 (for short, “IPC”) and sentencing him to
Digitally signed by
Narendra Prasad
Date: 2023.01.23
17:46:47 IST
Reason:
undergo rigorous imprisonment for life with a fine of
1
Rs.20,000/- and convicting the appellant herein for
offences punishable under Section 302 IPC read with
Section 34 IPC and sentencing him to undergo rigorous
imprisonment for life with a fine of Rs.20,000/-.
2. The prosecution case, as could be gathered, is that
when the deceased Vineet along with PW-1-Rajveer Singh
and PW-3-Jitendra Singh were passing through the shop of
one Raju Paanwala, four accused persons surrounded
them. The present appellant exhorted the accused No.2-
Rajesh to kill deceased Vineet, after which the accused
No.2-Rajesh fired shots from the double barrel gun upon
deceased Vineet, which hit him and he fell down after
getting injured and died on the spot.
3. Shri R. Basant, learned Senior Counsel appearing on
behalf of the appellant, submits that the trial court and the
High Court have grossly erred in convicting the appellant
and maintaining the same respectively. He submits that
the rest of the eye witnesses have turned hostile. Though
independent witness i.e. Raju Paanwala, in front of whose
shop the occurrence has taken place, was examined by the
Investigating Officer (I.O.), he has not been examined as the
2
prosecution witness in the trial. He, therefore, submits
that solely on the basis of testimony of PW-3, the conviction
would not be sustainable.
4. Ms. Sansriti Pathak, learned counsel appearing on
behalf of the respondent-State, submits that there is no
reason to interfere with the concurrent findings of fact. She
submits that since a coordinate Bench of this Court, vide
th
judgment and order dated 29 November 2019, has already
dismissed the appeal of co-accused Rajesh, the present
appeal, arising out of the same judgment, is also required
to be dismissed.
5. With the assistance of the learned counsel for the
appellant and the respondent, we have scrutinized the
material on record.
6. No doubt that the learned counsel for the respondent-
State is justified in submitting that the appeal of the co-
accused has already been dismissed by this Court;
however, it is settled law that dismissal of a special leave
petition does not amount to affirmation of the view taken by
the High Court or the trial court. Since, the leave is
granted in this matter and that too prior to the date on
3
which the special leave petition of the co-accused Rajesh
was dismissed, we are entitled to scrutinize the evidence.
7. PW-1-Rajveer Singh and PW-5-Satish Chandra have
not supported the prosecution case. The evidence of the
I.O. would reveal that he had recorded the statement of
Raju Chaurasia, the owner of paan shop, in front of which
the incident took place. He has not been examined as
prosecution witness.
8. That leaves us only with the testimony of PW-3-
Jitendra Singh. If his evidence is found to be trustworthy,
the appeal would fail, however, in the event his evidence is
found to be doubtful, the appellant would be entitled to
benefit of doubt.
9. We have scrutinized the evidence of PW-3 minutely.
No doubt that he refers to an exhortation made by the
present appellant to Rajesh co-accused to kill the deceased.
However, it is to be noted that his statement is recorded
after a period of two months from the date of the
occurrence. He admits in his evidence that he was in his
house for the said period of two months. The distance
between the village and the police station is only six
4
kilometers and that too connected by a pucca road. His
conduct during the said period is also required to be taken
into consideration. Though, the police station was at a
distance of two kilometers from the place of occurrence, he
chose not to go to the police station to report about the
incident during the entirety of the period.
10. It is further to be noted that, though in the
examination-in-chief, he states that all of them were
encircled by the accused persons, in the cross-examination
he states that only deceased Vineet was encircled by the
accused and that they were at a distance of 5-6 paces.
11. The perusal of the evidence of I.O./PW-6 (Lalmani
Gautam) would reveal that there is no explanation as to
why the statement of the witnesses was recorded belatedly.
The only explanation given by him is that he has recorded
the statement of these witnesses after the investigation was
given to him.
12. We find that the inordinate delay in recording the
statement of the witnesses, coupled with no explanation to
that effect from the I.O. and further the conduct of PW-3
would bring him in the category of witnesses who are not
5
wholly reliable. In our considered view, conviction on the
sole testimony of such a witness, without there being any
corroboration to his evidence, would not be justified.
13. In that view of the matter, the appellant is entitled to
benefit of doubt. The appeal succeeds. The impugned
judgment and order is quashed and set aside. The accused
is acquitted of the charges charged with.
14. The appellant-accused is directed to be set at liberty
forthwith, if his detention is not required in any other case.
15. The appeal is, accordingly, allowed.
16. Pending application(s), if any, shall stand disposed of.
..............................J
[B.R. GAVAI]
..............................J
[VIKRAM NATH]
NEW DELHI;
JANUARY 19, 2023
6