Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 168 OF 2006
Mahtab Singh & Anr. ..
Appellants
Versus
State of U.P. ..
Respondent
J U D G E M E N T
R.M. Lodha, J.
The judgment of acquittal passed by the IVth
Additional Sessions Judge, Farrukhabad on December
20, 2000 in Session Trial Nos. 48/91 and 49/91 came to
be overturned by the Division Bench of High Court of
Judicature at Allahabad vide its judgment and order
dated May 27, 2005. High Court found both accused
guilty of the offence punishable under Section 302 read
with 34 I.P.C. and sentenced them to life imprisonment.
Accused Mahtab Singh was found guilty of an offence
under Section 4/25 Arms Act, 1959 as well and
sentenced to six months rigorous imprisonment on this
count. Aggrieved, the accused are in appeal by special
leave.
2. Briefly put, the prosecution case is : Ganga
Singh (deceased) and his brother Vinod (PW 1) owned
a small Flour Mill at village Kampil. On September 28,
1990 at 9.00P.M., while returning from the betel shop of
Rajveer after purchasing bidi, a few steps away, at Tiraha
(junction of three roads), Mahtab Singh (A-1) and Jaipal
(A-2) father and son met him. Ganga Singh
– –
demanded money due from Mahtab Singh. Mahtab
Singh, however, rebuked him. Ganga Singh asked
Mahtab Singh as to why he was rebuking when
money was due and payable by him. Hearing this,
Mahtab Singh asked his son Jaipal to catch and kill
Ganga Singh. Jaipal caught hold of Ganga Singh;
Mahtab Singh gave a knife blow to Ganga Singh due to
which Ganga Singh fell down. Vinod (PW-1) and
Ratiram (PW-2) who were sitting under the thatched roof
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near Flour Mill and one Asarfilal rushed towards the
spot. On seeing them, Mahtab Singh and Jaipal ran
away. Ganga Singh was sent to Primary Health Centre
at Kayamganj with Asarfilal, Balbir, Shyam Singh and
other family members. Vinod got the report written from
one Charan Singh and went to Kampil police station.
Based on that, First Information Report was registered
under Section 307 IPC. Dr. G.K. Singh (PW-5), Medical
Superintendent, Primary Health Centre, Kayamganj sent
an intimation at about 10.30 P.M. to the police station,
Kampil about the death of Ganga Singh. The case was,
thus, converted to Section 302 I.P.C.
3. Singh Rampati Ram (PW-6), Sub-inspector,
Kampil police station started investigation on September
29, 1990. He prepared the sketch map and also took
one lantern in his possession. The challan of dead body
was prepared and photo of dead body was also taken.
The autopsy of dead body was conducted by Dr.
Manohar Singhal, (PW-4). On September 29, 1990, at
about 4.00P.M., A-1 was arrested. On his disclosure
statement, blood stained knife, shirt and bandi are said
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to have been recovered from his house. Then, another
case under Section 4/25 of the Arms Act, 1959 was
registered against A-1. The investigation of the case
under Section 4/25 of the Arms Act was done by Sub-
Inspector B.D. Chaudhary (PW-8). A-2 was also arrested
on October 6, 1990.
4. After completion of investigation, two
chargesheets came to be filed. One was filed against
A-1 and A-2 under Section 302/34 IPC for the murder of
Ganga Singh. The other chargesheet was filed against
A-1 under Section 4/25 of the Arms Act. Both the
Session Trials under Section 302 read with Section 34
IPC and under Section 4/25 of the Arms Act were taken
up together.
5. The trial court was of the opinion that
prosecution failed to prove the charges against the
accused persons beyond reasonable doubt. The trial
court acquitted the accused mainly for the following
reasons:
(i) The testimony of PW-1 and PW-2 suffers from
significant contradictions. While PW-1 stated in his
evidence that Mahtab Singh stabbed Ganga Singh
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with a knife from back side, the deposition of PW-2
was that Mahtab Singh inflicted knife injury to
Ganga Singh was from front side.
(ii) Both the eye witnesses are interested
witnesses. PW-1 is a real brother of deceased and
PW-2 is a deceased’s co-brother.
(iii) The identification of the accused persons
by PW-1 and PW-2 in the dark night was highly
improbable and doubtful. No evidence much less
reliable evidence of burning lantern and light from
the electric bulb was produced. No evidence that it
was moonlit night.
(iv) Rajveer from whose shop Ganga Singh
purchased bidi has not been examined by
prosecution; even his statement under Section 161
Cr.P.C. was not recorded. The burning lantern
from his shop was not seized by the investigating
officer.
(v) The lantern which was seized from the
shop of Balbir was not produced before the Court.
(vi) The presence of PW-2 was highly
unnatural. He is resident of Nagala Kulu. His
statement that he came to Ganga Singh’s Flour Mill
for grinding at night (9.00 P.M.) does not inspire
confidence as the Flour Mill is situated in different
village. His conduct of leaving the place of
occurrence immediately after the incident makes his
presence at the time of incident highly doubtful.
PW-2 neither accompanied Ganga Singh to the
Primary Health Centre nor accompanied PW-1 to the
police station.
(vii) Asarfilal who was present at the time of
incident and who accompanied Ganga Singh to
Primary Health Centre has not been examined
although his statement u/s 161 Cr.P.C. was recorded.
( viii) The recovery of knife, shirt and bandi (all
blood stained) from the house of A-1 at 4.30 P.M.
immediately after his arrest at 4.00 P.M. on
29.09.1990 is highly doubtful as police raided the
house of A-1 from 6.00 A.M. to 3.30 P.M. on
September 29, 1990 number of times and offending
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article was not found. No memo of disclosure
statement of A-1 prepared.
6. The High Court, in appeal, however, formed
entirely different opinion. The High Court principally
recorded the following reasons for upsetting the
judgment of acquittal:
(i) The evidence of PW-1 and PW-2 was
clinching and could not have been rejected. The
contradictions in their evidence were insignificant.
(ii) The FIR was lodged barely 45 minutes after
the incident ; the distance of police station being one
furlong from place of incident and the presence of
PW-2 was mentioned in the FIR itself.
(iii) PW-1 and PW-2 were sitting under the
thatched roof near the Flour Mill and there being no
obstruction between that place and the place of
incident which was about 40 paces away, it was
not improbable for PW-1 and PW-2 to watch the
incident as lantern was burning at the shop of Balbir
(8 paces away). There was no possibility of
mistaken identity, as A-1 and A-2 were not
unknown to PW-1 and PW-2.
(iv) Non-production of Asarfilal has been
explained by PW-1 that he had crossed over to the
side of the accused and did not want to support the
prosecution case.
(v) The recovery of blood stained knife and
clothes from the house of A-1 was not liable to be
rejected as recovery was proved by public witness
PW-7.
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7. The core question that must be answered
is : whether the prosecution story is worth credence and
whether the prosecution has sufficiently proved its case
against the accused beyond reasonable doubt.
8. Dr. Manohar Singhal (PW-4) conducted
autopsy of the dead body on September 29, 1990 at
about 3.45 P.M. He found the following ante-mortem
injury on the dead body of Ganga Singh :
Stab wound 3 cm x 1.5 cm chest cavity deep over left
side of neck, 7 cm below and medial to interior angle
of left scapula and 8 cm outer to the mid line.
Obliquely placed. Upper angle sharp. Margins clean
cut and inverted.
PW-4 has deposed that Ganga Singh had died due to
shock and haemorrhage as a result of ante-mortem
injury sustained by him.
9. From the autopsy report and the testimony of
PW-4, it can reasonably be held that death of Ganga
Singh was homicidal.
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10. The incident occurred on September 28, 1990
at 9.00 P.M. Ganga Singh (deceased) had gone to betel
shop of Rajveer to purchase bidi. While he was
returning, only few steps away, the incident is said to
have occurred. As a matter of fact, PW-1 has admitted
in his deposition that Rajveer’s shop was hardly 2-3 steps
away from the place of occurrence. But strangely,
despite availability, Rajveer’s statement was neither
recorded under Section 161 Cr.P.C. nor he was tendered
in examination before the Court. According to
prosecution case, a lantern was burning at Rajveer’s
shop and it was from the light of that lantern that PW-1
and PW-2 could see the culprits. The Investigating
Officer (PW-6), even did not seize the lantern from
Rajveer’s shop. The omission on the part of PW 6 in not
recording the statement of Rajveer and not seizing the
lantern from his shop is not innocuous; rather the very
genesis of the crime has been rendered doubtful and full
of suspicion. The trial court considered this aspect as
one of the main reasons in not believing the prosecution
case and acquitted the accused. However, the High
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Court ignored and overlooked this aspect altogether. In
our view, non-examination of Rajveer in the
circumstances is destructive of the substratum of the
prosecution story.
11. One of the main reasons given by the High
Court in upsetting the judgment of acquittal is that FIR
was lodged barely 45 minutes after the incident; the
distance of police station being hardly one furlong from
the place of occurrence. High Court, however, failed to
consider a very material aspect that despite the fact that
police station was situated close and visible from the
place of incident, yet PW-1 did not go immediately to
police station to report but he first went to Charan Singh
to have a written report prepared and then went to the
police station with written report. The first version of the
incident could have been reported at the police station
within five minutes of its occurrence. The fact that PW-1
took 45 minutes in reporting the incident at the police
station rather creates doubt about the truthfulness of the
prosecution case and does not rule out false implication
9
of the accused against whom PW-1 had grudge due to
some civil dispute between them.
12. The evidence of PW-1 about sufficient light
from the electric pole and from the lantern at Balbir’s
shop is again highly doubtful. The Investigating Officer
(PW-6) in his testimony stated that neither in FIR nor in
his statement PW-1 told him about the electric pole at the
place of incident. PW-6 admitted that electric pole has
not been shown in sketch prepared by him. About the
light from lantern at the shop of Balbir, although the said
lantern is said to have been seized by PW-6 but
surprisingly that lantern was not produced during the trial
before the court. PW-6 also admitted that PW-1 did not
tell him that it was a moonlit night. In these
circumstances, the evidence of PW-1 that he witnessed
the incident further becomes doubtful as admittedly he
was sitting under thatched roof about 40-45 paces away
from the place of incident. It is true that the evidence of
PW-1 being brother of the deceased could not have
been justifiably thrown out as an interested witness but in
1
the backdrop of totality of his evidence, in our considered
view, his testimony could not have been safely relied
upon and the trial court cannot be said to have committed
any error in this regard. The vital omissions in his
testimony also shake the trustworthiness of this witness.
13. The evidence of PW-2 is no better. His very
presence at the time of incident is not only doubtful but
also highly unnatural. He is not the resident of Village
Kampil where the incident occurred; he resides at Village
Kullu Nagla. It does not stand to reason that in the night
at about 9.00 P.M. he would bring his foodgrain for
grinding. He was unable to tell how much foodgrain he
had brought for grinding. The most surprising aspect is
that although he claims to have been present at the time
of incident, he neither went along with Ganga Singh when
he was taken to Kayam Ganj Primary Health Centre after
the incident nor he accompanied PW-1 to police station
for lodging the report. He left the place of occurrence
within 10 minutes of the incident for his village. The
version of PW-1 and PW-2, insofar as infliction of knife
1
injury by Mahtab Singh to deceased Ganga Singh is
concerned, is also not uniform. PW-1 in his deposition
stated that Mahtab Singh stabbed Ganga Singh from the
back side while the version of PW-2 is that Mahtab Singh
inflicted knife injury to Ganga Singh from the front.
Pertinently, PW-2 is also co-brother of Ganga Singh.
14. All in all, the testimony of PW-1 and PW-2
does not conform with collateral circumstances as well as
probabilities. The circumstances brought on record show
that reliance on their testimony is not safe. Their
testimony is shrouded with grave suspicion and serious
doubts.
15. The trial court meticulously examined the
entire evidence available on record and then reached the
conclusion that the prosecution has failed to prove the
charges against the accused beyond reasonable doubt.
1
16. In Kalyan Singh v. State of M.P ., one of us
(S.B. Sinha, J.) observed :
1
(2006) 13 SCC 303
1
“The High Court while dealing with the matter, in
our considered opinion, failed to apply the proper
tests in deciding a case where a judgment of acquittal
has been recorded. The views of the learned trial
Judge cannot be said to be wholly unsustainable. It is
now well known that if two views are possible, the
appellate court shall not ordinarily interfere with the
judgment of acquittal. We do not, however, mean to
lay down the law that the High Court, in a case where
a judgment of acquittal is in question, would not go
into the evidence brought on record by the
prosecution or by the State but we would like to point
out that even if the High Court reversed the judgment
of acquittal recorded by the trial court, it is incumbent
on the High Court to arrive at the conclusion that no
two views are possible.”
17. The aforesaid legal position has been
2
reiterated in K. Prakashan v. P.K. Surenderan wherein
it was said:
“It is now trite that if two views are possible, the
appellate court shall not reverse a judgment of
acquittal only because another view is possible to be
taken. The appellate court’s jurisdiction to interfere is
limited. (See M.S. Narayana Menon and Mahadeo
Laxman Sarane v. State of Maharashtra .) The High
Court furthermore has not met the reasons of the
learned trial Judge. It proceeded on the premise that
the appellant had not been able to discharge his
burden of proof in terms of Section 139 of the Act
without posing unto itself a further question as to how
the said burden of proof can be discharged. It
furthermore did not take into consideration the legal
principle that the standard of proof upon a
prosecution and upon an accused is different.”
2
(2008) 1 SCC 258
1
3
18. In Ghurey Lal v. State of Uttar Pradesh, this
Court while dealing with the scope of exercise of power
by appellate Court against judgment of acquittal under
Sections 378 and 386 Cr.P.C., considered a long line of
4
cases viz., Sheo Swarup v. King Emperor ; Surajpal
5 6
Singh v. State ; Tulsiram Kanu v. State ; Madan Mohan
7 8
Singh v. State of U.P. ; Atley v. State of U.P. ; Aher
9
Raja Khima v. State of Saurashtra ; M.G. Agarwal v.
10
State of Maharashtra ; Noor Khan v. State of
11 12
Rajasthan ; Khedu Mohton v. State of Bihar ; Shivaji
13
Sahabrao Bobade v. State of Maharashtra ; Lekha
14
Yadav v. State of Bihar ; Bishan Singh v. State of
15 16
Punjab ; Umedbhai Jadavbhai v. State of Gujarat ;
17
Tota Singh v. State of Punjab ; Ram Kumar v. State of
3
(2008) 10 SCC 450
4
AIR 1934 PC 227
5
AIR 1952 SC 52
6
AIR 1954 SC 1
7
AIR 1954 SC 637
8
AIR 1955 SC 807
9
AIR 1956 SC 217
10
AIR 1963 SC 200
11
AIR 1964 SC 286
12
(1970) 2 SCC 450
13
(1973) 2 SCC 793
14
(1973) 2 SCC 424
15
(1974) 3 SCC 288
16
(1978) 1 SCC 228
17
(1987) 2 SCC 529
1
18 19
Haryana ; Bhagwan Singh v. State of M.P. ; C.
20
Antony v. K.G. Raghavan Nair ; State of Karnataka v.
21 22
K. Gopalakarishna ; State of Goa v. Sanjay Thakran ;
and culled out the following principles:
“1. The appellate court may review the evidence in
appeals against acquittal under Sections 378 and 386
of the Criminal Procedure Code, 1973. Its power of
reviewing evidence is wide and the appellate court
can reappreciate the entire evidence on record. It can
review the trial court’s conclusion with respect to both
facts and law.
2 . The accused is presumed innocent until proven
guilty. The accused possessed this presumption
when he was before the trial court. The trial court’s
acquittal bolsters the presumption that he is innocent.
3 . Due or proper weight and consideration must be
given to the trial court’s decision. This is especially
true when a witness’ credibility is at issue. It is not
enough for the High Court to take a different view of
the evidence. There must also be substantial and
compelling reasons for holding that the trial court was
wrong.”
19. We agree. The aforesaid principles must be
kept in mind by the appellate court before it ventures to
overturn trial court’s judgment of acquittal. Unfortunately
in the instant case, the High Court did not keep the well
settled principles in mind and reversed the judgment of
18
(1995) Supp.(1) SCC 248
19
(2002) 4 SCC 85
20
(2003) 1 SCC 1
21
(2005) 9 SCC 291
22
(2007) 3 SCC 755
1
acquittal recorded by the trial court when the view taken
by the trial court was possible as well as plausible. The
High Court, thus, seriously erred in disturbing the
judgment of acquittal and recording the finding of guilt
against the accused.
20. We, accordingly, allow the appeal and set
aside the judgment dated May 27, 2005 impugned in the
present appeal. Mahtab Singh is already on bail, his bail
bonds are cancelled. Jaipal is directed to be released
forthwith unless required in any other case.
…………………………………… J
( S.B. SINHA)
…………………………………… J
( MUKUNDAKAM SHARMA)
…………………………………….
J
(R.M. LODHA)
New Delhi
April 13, 2009
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