Full Judgment Text
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PETITIONER:
AWADHESH & ANR.
Vs.
RESPONDENT:
STATE OF MADHYA PRADESH
DATE OF JUDGMENT12/04/1988
BENCH:
SINGH, K.N. (J)
BENCH:
SINGH, K.N. (J)
KANIA, M.H.
CITATION:
1988 AIR 1158 1988 SCR (3) 513
1988 SCC (2) 557 JT 1988 (2) 72
1988 SCALE (1)698
CITATOR INFO :
R 1989 SC2004 (30)
ACT:
Indian Penal Code-Challenging conviction by the High
Court under section 302 read with section 34, Indian Penal
Code, after acquittal by trial court.
HEADNOTE:
This appeal was directed against the judgment of the
Madhya Pradesh High Court, setting aside the order of the
trial court acquitting the appellants, and convicting them
under section 302 read with section 34 of the Indian Penal
Code and sentencing each of them to undergo imprisonment for
life.
The prosecution case was that on 4.1.1982 Ram Pratap
Singh deceased had gone to Collectorate, Panna where he
noticed that Om Prakash and Raghvendra, who were inimical to
him, were shadowing him in the Collectorate. He requested
Rajendra Singh PW 14, Chhotey Bhaiya. PW 5, and Mohd. Tohid,
PW 16, to accompany him on his return journey as he sensed
danger to his life, and sent Tohid to purchase bus tickets
with a direction that he should meet him at the octroi toll
barrier on the Ajaigarh Road from where he proposed to take
the bus. Thereafter, he alongwith Rajendra Singh, PW 14 and
Chhotey Bhaiya. PW 15, proceeded to Chungi Chowki (octroi
Post) on the Ajaigarh Road. While they were waiting for
Tohid, Ram Pratap Singh went for drinking water from a well
nearby. When he was just in the process of drinking water,
gun shots were fired towards him, causing injuries to him.
Upon this, he ran towards his associates and fell down near
Rajendra Singh and Chhotey Bhaiya. The prosecution further
alleged that on hearing the gun shots, Rajendra Singh and
Chhotey Bhaiya saw the appellant Brajendra armed with a.315
rifle and Awadesh armed with a 12 bore gun running away.
Rajendra Singh and Chhotey Bhaiya, armed with a rifle and a
gun respectively, fired shots towards the assailants and the
assailants also fired towards them.
On hearing gun fire, V.P. Pathak, Sub-lnspector of
Police, PW 20, rushed to the spot with Constable Lakhan
Singh, PW 12. Rajendra Singh, PW 14 gave him information
about the incident, which was recorded by him (Dehati
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Nalishi Ex. P. 12 at 3.10 P.M.) V.P. Pathak,
514
sent the Dehati Nalishi to Kotwali Panna through Lakhan
Singh, Constable, for recording the first information
report. Pathak, sub-inspector then prepared the panchnama
and spot map Ex P. 17 on the same day.
A charge-sheet was submitted against five accused
persons, including the two appellants Brajendra and Awadesh
for trial for offences under section 312 read with section
34 and section 307 read with section 34 of the Indian Penal
Code. The Trial Court disbelieved the testimony of the two
eye-witnesses, Rajendra Singh, PW 14 and Chhotey Bhaiya, PW
IS, and referring to a number of circumstances which made
the prosecution story doubtful, acquitted the accused. On
appeal by the State Government, the High Court disagreed
with the reasons recorded by the Trial Court, and placing
reliance on the testimony of the eye-witnesses, i.e..
Rajendra Singh and Chhotey Bhaiya, allowed the State appeal,
set aside the acquittal of the appellants and convicted them
under section 302 read with section 34 of the Indian Penal
Code and awarded a sentence of life imprisonment to each of
them. The appellants appealed to this court against the
decision of the High Court.
Allowing the appeal, the Court,
^
HELD: The High Court on an appraisal of the evidence
came to the conclusion that the prosecution had proved its
case beyond all reasonable doubt. It referred to a number of
decisions of this Court in considering the scope of its
jurisdiction in interfering with an order of acquittal
passed by the trial court, but while applying the
principles, it failed to appreciate that the view taken by
the trial court was reasonable and plausible. While
considering an appeal against acquittal, the High Court
must, in appreciating the evidence, keep in mind that if on
appraisal of evidence and considering relevant attending
circumstances it is found that two views are possible, one
held by the trial court for acquitting the accused, and the
other, for convicting the accused, in such a situation, the
rule of prudence should guide the High Court not to disturb
the order of acquittal made by the trial court. Unless the
conclusions of the trial court drawn on the evidence on
record are found to be unreasonable, perverse of
unsustainable, the High Court should not interfere with the
order of acquittal. The High Court in this case made an
attempt to explain away the infirmities in the testimony of
the eye-witnesses in setting aside the order of acquittal.
The High Court disregarded the rule of judicial prudence in
converting the order of acquittal to conviction, and
committed error in interfering with the order of acquittal.
[519G-H; 520A-B]
515
The first information report, Ex. P. 12, showed that
the occurrence took place at 14.15 hours while the report
was lodged at 15.10 hours. The evidence on record and the
attending circumstances indicated that the first information
report was not lodged at 15.10 hours; instead it was lodged
at about 17.00 hours. The testimony of Rajendra Singh, PW
14, regarding the lodging of the first information report
was contradictory. The statement of V.P. Pathak, PW 20, the
investigating officer, clearly indicated that the first
information report was written after 17.00 hours and it was
not recorded at the time it purported to have been lodged.
There were material contradictions in the testimony of
Rajendra Singh PW 14 and the investigating officer. Since
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the Sub-Inspector, the District Magistrate and the
Superintendent of Police had reached the place of occurrence
within a few minutes of the incident, the delay in lodging
the first information report was highly suspicious. Why this
delay when all officers and the eye-witnesses were present
at the spot, and the police station was at a distance of two
furlongs? The obvious reason appeared to be that the names
of the assailants were not known, as most likely, the eye-
witnesses had not seen the assailants and they were not
present at the scene of the occurrence. In all likelihood,
they arrived at the scene after the incident, and since the
names of the assailants were not known, the F.l.R. was
lodged with delay after deliberation. This view finds
support from the testimony of Tohid PW 16 and other
circumstances. There were material contradictions in the
statements of the three witnesses Rajendra Singh PW 14,
Chhotey Bhaiya, PW 15 and Tohid, PW 16, and in view of the
same and, further in view of the discrepancy regarding the
delay in the lodging of the first information report, it was
apparent that till the first information report was lodged,
nobody knew who the assailants were and that was why
Rajendra Singh could not disclose the names of the
assailants to Tohid on his arrival at the scene of
occurrence after he had been sent to bring the- bus tickets.
[520H; 521A-C. E; 522H; 523A]
The prosecution relied upon the recovery of the two
empty cartridges to connect the appellants with the
commission of the crime. The recovery of these empty
cartridges was not made on 4.1.1982; instead, these
cartridges were recovered on 5.1.82, although the spot map
of the scene of occurrence was prepared on 4.1.82 itself. It
was interesting to note that the spot where these cartridges
were recovered was shown in the spot map prepared on 4.1.82
although the recovery was made on S.1.82. The witnesses in
whose presence the recovery of the cartridges was made had
not supported the prosecution. Moreover, it was the admitted
case of the prosecution that there was an exchange of fire
from both sides-by the assailants and by Rajendra Singh and
516
Chhotey Bhaiya-but no other cartridges were recovered by the
Investigating officer. The investigating officer did not
take into possession the licensed rifle and gun of
Raghavendra Singh and Awadesh, nor was any effort made to
secure the evidence of the ballistic expert to prove that
the empty cartridges had been fired from the respective
weapons. These circumstances indicated that the empty
cartridges were not recovered; instead, the investigating
officer had planted those cartridges to support the
prosecution case. [523B-E]
On the evidence on record, it was apparent that the
Chungi Chowki (octroi toll barrier) was manned by the
employees of the Municipal Board, who were present at the
spot, and in addition to them, there was Home Guard office
adjacent to the toll barrier and there were residential
houses near the barrier and the place of occurrence was a
busy public place. It came into evidence that large number
of persons had gathered at the scene of occurrence, but no
employee of the toll barrier or Home Guard once or local
resident came forward to support the prosecution case. The
District Magistrate, the superintendent of Police and other
officers had also reached the spot within minutes of the
incident, but none of them entered the witness box to
support the prosecution case. The prosecution produced Udai
Singh PW 17 and Kali Charan PW 19, who were residents of
Uttar Pradesh and close relatives of the deceased. Their
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presence at the scene of occurrence as highly doubtful and
their testimony was not free from doubt as they were highly
interested persons. The trial court rightly discarded their
testimony as their statements had been recorded by the
police after two months of the occurrence. without there
being an explanation for the delay. [523F-H; 524A-B]
The injuries mentioned in the testimony of Dr. Jain who
had carried out the post mortem examination of the dead body
of Ram Pratap Singh, could not be caused in the manner and
from the place where the assailants were alleged to be
present at the time of firing, and the same were
inconsistent with the testimony of the eye-witnesses and the
site plan. The trial court had discussed this question at
length and the Court agreed with the findings of the trial
Court. In the opinion of the doctor, the person who caused
injuries to the deceased was at a higher level than the
deceased; this was wholly inconsistent with the testimony of
the eye-witnesses. Though medical expert’s opinion is not
always final and binding, in this case, it corroborated the
other circumstances which indicated that the eye-witnesses
had not seen the actual occurrence. [524B; 525E-H]
517
The prosecution had failed to prove its case beyond all
reasonable doubt and the High Court committed error in
interfering with the trial court’s order of acquittal. Order
of the High Court and the appellant’s conviction were set
aside and order of the trial court was restored and the
appellants were acquitted. [526A-B]
G.B. Patel & Anr. v. State of Maharashtra, [1979] 2 SCR
94 and Sheo Swarup v. King.Emperor, A.l.R. 1934 PC 227.
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
537 of 1986.
From the Judgment and order dated 3.9.1986 of the
Madhya Pradesh High Court in Criminal Appeal No. 936 of
1983.
Rajinder Singh, Ranjit Kumar, N. Jain, and Wasim A.
Qadri for the Appellants.
Uma Datta and T.C. Sharma for the Respondents.
The Judgment of the Court was delivered by
SINGH, J. This appeal is directed against the judgment
of the Madhya Pradesh High Court dated 3.9.1986 setting
aside the trial court’s order acquitting the appellants
herein and convicting them for offence under Section 302
read with Section 34 of the Indian Panel Code and sentencing
each of them to undergo imprisonment for life.
The prosecution case in brief is that on 4.1.1982 Ram
Pratap Singh deceased resident of village Kharoni P.S.
Ajaigarh, District Panna had gone to Collectorate Panna to
file reply to a show-cause notice issued to him for the
cancellation of his gun licence. While he was at the
Collectorate he noticed Om Prakash and Raghvendra who were
inimical to him, were shadowing him in the Collectorate. He
requested Rajendra Singh PW 14, Chottey Bhaiya PW 15, and
Mohd. Tohid PW 16 to accompany him on his return journey as
he sensed danger to his life. Ram Pratap Singh the deceased
sent Tohid to purchase tickets for Bus with a direction that
he should meet him at the octroi Toll barrier on the
Ajaigarh Road from where he proposed to take the Bus,
thereafter the deceased along with Rajendra Singh, PW 14,
and Chhotey Bhaiya PW 15 proceeded on foot to Chungi Chowki,
(octroi Post) situate at about two furlongs away from the
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Collectorate on the Ajaigarh Road. While the deceased,
Rajendra Singh and
518
Chhotey Bhaiya were waiting for Tohid near the octroi Post
one bus arrived, but the deceased told Rajendra Singh and
Chhotey Bhaiya not to travel by that bus as he had
apprehension that Raghvendra and his associates may be
inside the bus. While they were waiting for Tohid, the
deceased went for drinking water from a well which was near
the road at the octroi Post. After drawing the water from
the well while the deceased was in the process of drinking
water at that precise moment gun shots were fired towards
him from the Northern side from the Bari boundary, causing
injuries to him in his chest and hand. On receipt of
injuries the deceased ran towards his associates and fell on
a takhat near Rajendra Singh and Chhotey Bhaiya. The
prosecution further alleged that Rajendra Singh and Chhotey
Bhaiya on hearing the gun shot saw the appellant Brajendra
armed with a .315 rifle and Awadhesh armed with a 12 bore
gun running away along with an other person named Kailash
who was also armed with a gun. Rajendra Singh PW 14 who was
armed with a. 275 rifle and Chhotey Bhaiya was armed with a
12 bore gun fired shots towards the assailants. The
assailants also fired towards them, but they escaped. On
hearing the gun shot fire V.P. Pathak, Sub-Inspector of
Police PW 20 accompanied by Constable Lakhan Singh PW 12
rushed to the spot. Rajendra Singh PW 14 gave him
information about the incident which was recorded by Pathak,
(Dehati Nalishi Ex. P. 12 at 3.10 p.m.). V.P. Pathak, the
Sub-Inspector sent the Dehati Nalishi to Kot vali Panna
through Lakhan Singh, Constable, for recording the first
information report. After holding inquest, Pathak, the Sub-
Inspector prepared Panchnama and sent requisition for post-
mortem examination of the dead body and he also prepared the
spot map Ex. P. 17 on the same day. After completion of
investigation a charge sheet was submitted against five
accused persons including the two appellants Brajendra and
Awadhesh for trial for offences under Section 302 read with
Section 34 IPC and under Section 307 read with Section 34 of
the Indian Panel Code. Kailash one of the accused was shown
absconding. Before the trial court Rajendra Singh PW 14 and
Chhotey Bhaiya PW 15 supported the prosecution case as eye-
witnesses, they claimed to have witnessed the assault, they
further claimed that they had recognised the accused
persons. The learned Sessions Judge disbelieved the
testimony of these two eye-witnesses, be referred to a
number of circumstances which made the prosecution story
doubtful, therefore, he acquitted the accused. On appeal by
the State Government the High Court disagreed with the
reasons recorded by the trial court and placing reliance on
the testimony of the eye-witnesses, i.e., Rajendra Singh and
Chhotey Bhaiya, it allowed the State’s appeal and set aside
the acquittal of the appellants and convicted them under
Section 302
519
read with Section 34 of the Indian Penal Code and awarded
sentence of imprisonment for life to each of them.
The trial court held that the prosecution had failed to
prove its case beyond all reasonable doubt and no reliance
could be placed on the testimony of the Rajender Singh PW 14
and Chhotey Bhaiya PW 15. The trial court referred to a
number of circumstances creating doubt on the credibility of
the prosecution story but the High Court differed from those
findings and on appraisal of evidence it came to the
conclusion that the prosecution had proved its case beyond
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all reasonable doubt. The High Court referred to a number of
decisions of this court in considering the scope of its
jurisdiction in interfering with an order of acquittal
passed by the trial court but while applying the principles
it failed to appreciate that the view taken by the trial
court was reasonable and plausible. Even the High Court has
not held that the view taken by the trial court was not a
possible view. The High Court reappraised the evidence and
took a different view and it explained the infirmities of
the prosecution pointed out by the Sessions Judge. In G. B.
Patel & Anr. v. State of Maharashtra, [1979] 2 SCR 94 this
Court quoted with approval the principles laid down by Privy
Council in Sheo Swarup v. King Emperor, AIR 1934 PC 227
wherein it was held that although the power of the High
Court to reassess the evidence and reach its own conclusion,
are as extensive as in an appeal against the order of
conviction, yet, as a rule of prudence, the High Court
should always give proper weight and consideration to
matters e.g. (i) the views of the trial judge as to the
credibility of the witnesses; (ii) the presumption of
innocence in favour of the accused, a presumption certainly
not weakened by the fact that he has been acquitted at the
trial; (iii) the right of the accused to the benefit of any
doubt, and (iv) the slowness of an appellate court in
disturbing a finding of fact arrived at by a Judge who had
the advantage of seeing the witnesses. Sarkaria, J. speaking
for the court observed "where two reasonable conclusions can
be drawn on the evidence on record, the High Court should,
as a matter of judicial caution, refrain from interfering
with the order of acquittal recorded by the court below. In
other words, if the main grounds on which the court below
based its order acquitting the accused, are reasonable and
plausible, and cannot be entirely and effectively dislodged
or demolished, the High Court should not disturb the
acquittal." While considering an appeal against acquittal
the High Court must keep in mind these principles in
appreciating the evidence of witnesses. If on appraisal of
the evidence and on considering relevant attending
circumstances it is found that two views are possible, one
as held by the trial court for acquitting the accused, and
the other for
520
convicting the accused in such a situation the rule of
prudence should guide the High Court not to disturb the
order of acquittal made by the trial court. Unless the
conclusions of the trial court drawn on the evidence on
record are found to be unreasonable, perverse or
unsustainable, the High Court should not interfere with the
order of acquittal. The High Court has in the instant case
made an attempt to explain away the infirmities in the
testimony of eye-witnesses in setting aside the order of
acquittal. The High Court has in our opinion disregarded the
rule of judicial prudence in converting the order of
acquittal to conviction .
The trial court held that the cumulative effect of the
following circumstances made the prosecution case doubtful,
these are; (i) first information report was not recorded or
lodged at the time it purports to have been lodged, (ii)
Rajendra Singh PW 14 and Chhotey Bhaiya PW 15, the two eye-
witnesses did not give the names of assailants to Tohid,
(iii) recovery of two cartridges on 5th January. 1982 one
day after the occurrence, (iv) nature and position of
injuries on the body of the deceased were not consistent
with the testimony of eye-witnesses having regard to the
local site (v) empty cartridges of .315 rifle which were
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alleged to have been fixed by Brijesh and 12 bore cartridge
was alleged to have been fired by Awadesh accused causing
injuries to the deceased, but the same were not sent to
ballistic expert for his opinion nor he was examined to
support the prosecution case, (vi) unnatural and
inconsistent testimony of eye-witnesses Rajendra Singh PW 14
and Chhotey Bhaiya PW 15, (vii) a large number of persons
were available at the scene of occurrence at the octroi Toll
barrier but no independent witness, either employee of the
Toll barrier or of Home Guard or any other person was
examined to support the prosecution. The High Court made an
attempt to explain the circumstances in holding that some
times the memory of the witnesses fail and a broad view of
the evidence given by the eye-witnesses clearly indicated
that the prosecution had proved its case. We have been taken
through the entire evidence and we have also closely and
carefully considered the judgment of the trial court and the
High Court. We are of opinion that the High Court committed
error in interfering with the order of acquittal .
The first information report Ex. P. 12 shows that the
occurrence took place on 14.15 hours while the report was
lodged at 15.10 hours that is to say within 55 minutes of
the occurrence. The evidence on record and the attending
circumstances indicate that the first information report was
not lodged at 15.10 hours instead it was lodged at about
521
17.00 hours. Rajendra Singh, PW 14 stated before the trial
court that from the place of occurrence he had accompanied
the police to Panna Kotwali where he lodged the report and
signed the Ex. P. 12. In cross-examination he stated that he
had gone to the Kotwali for lodging report in a police van.
He further stated that the report had been written by the
Police clerk on his dictation, and that the police arrived
at the scene of occurrence after an hour of his lodging the
first information report. At an earlier stage he had stated
that the police had arrived at the place of occurrence at
about 3.30 p.m. and thereafter he had accompanied the police
to Kotwali for lodging the report. His testimony regarding
lodging of the first information report is contradictory.
V.P. Pathak, PW 20 Sub-Inspector of police, the
investigating officer, stated that it was wrong to say that
the first information report Ex. P. 12 was made by Rajendra
Singh at Kotwali. According to him he was on duty at
Collectorate and there he got the news at about 2.30 or 3.00
p.m. that gun shots were fired at Toll barrier on the
Ajaigarh Road, he reached there with few minutes along with
Lakhan Singh, Constable. On reaching the spot he wrote Marg
intimation drew up panchnama of the dead body and sent the
dead body for post-mortem examination and thereafter he
recorded Dehati Nalishi Ex. P. 12. He asserted that first
information report had been recorded at the place of
occurrence. He further stated that Dehati Nalishi was
recorded by him after the dead body of the deceased had been
sent by him for post-mortem examination which according to
the document (Ex. P. 8) was sent at 5.00 p.m. His statement
clearly indicates that the first information report was
written after 17.00 hours and it was not recorded at the
time it purports to have been lodged. There are material
contradictions in the testimony of Rajendra Singh PW. 14 and
the investigating officer. Since the Sub-Inspector, the
District Magistrate and the Superintendent of Police had
reached the place of occurrence within few minutes of the
incident, the delay in lodging the first information report
is highly suspicious. Why this delay when all officers were
present, and eye-witnesses were present at the spot and the
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police station was at a distance of two furlongs. The
obvious reason appears to be that the names of the
assailants were not known as most likely the alleged two
eye-witnesses had not seen the assailants and they were not
present at the scene of occurrence, at the time the shooting
took place, in all likelihood, they like, others arrived at
the scene after the incident. Since names of the assailants
were not known the F.I.R. was lodged with delay after
deliberation.
This view finds support from testimony of Tohid PW 16
and other circumstances. According to the prosecution the
deceased Ram
522
Pratap Singh had sent Tohid to purchase bus tickets and had
directed him to meet him at the Chungi Naka on Ajaigarh
Road. He had further told Tohid PW 16 that he was
apprehending danger from the accused persons so he would get
into bus at the Toll barrier. After giving instructions to
Tohid he proceeded to Chungi Chowki (Octroi Post) along with
Rajendra Singh and Chhotey Bhaiya. The prosecution further
alleged that after the occurrence took place Ram Pratap
Singh’s dead body was lying near Takhat at the Octroi
barrier when Thiod arrived at the scene. He met Rajendra
Singh PW 14 and Chhotey Bhaiya PW 15 who were waiting. Tohid
PW 16 testified that when he reached the toll barrier
neither Rajendra Singh nor Chhotey Bhaiya disclosed the
names of the assailants. Chhotey Bhaiya PW 15 in his
testimony stated that when Tohid arrived at the scene of
occurrence he did not enquire from him or from Rajendra
Singh as to who had killed Ram Pratap Singh. At a later
stage in cross examination he said that Tohid had asked
Rajendra Singh PW 14 who had killed Ram Pratap Singh but
Rajendra Singh told him that he would tell him later while
going to the police station for lodging the first
information report. According to Rajendra Singh PW 14 when
Tohid reached the spot he directed him to proceed to the
Collectorate and give information to the police about the
murder having taken place. Tohid proceeded to the
Collectorate and from there he contacted the Kotwali on
telephone and gave information about the murder having taken
place near the Toll barrier. Rajendra Singh PW 14 has stated
that neither Tohid asked nor he told him the names of the
assailants. This conduct is highly improbable and unnatural.
Admittedly Tohid, Rajendra, Chhotey Bhaiya and the deceased
were friends of each other and Tohid had been sent by the
deceased to bring bus tickets and he had also told him about
apprehensions to his life and according to the Rajendra
Singh PW 14 and Chhotey Bhaiya PW 15 when Tohid arrived at
the scene he did not enquire about the names of the
assailants, although dead body of the deceased was lying at
the spot. This is highly unnatural. When Tohid was cross-
examined on this question he tried to explain that while he
was proceeding to the police station along with Rajendra
Sing PW 14 to lodge the first information report the latter
had told him the names of the assailants. We have noticed
earlier that according to investigating officer first
information report was recorded at the scene of occurrence
and not at the police station. This indicates that Tohid and
Rajendra Singh’s story regarding their going together to
Kotwali is highly suspicious. In view of the material
contradiction in the statement of three witnesses Rajendra
Singh PW 14, Chhotey Bhiaya PW 15 and Tohid PW 16 and
further in view of the discrepancy regarding the delay in
lodging the first information report,
523
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it is apparent that till the first information report was
lodged nobody knew who the assailants were and that is why
Rajendra Singh could not disclose the names of the
assailants to Tohid on his arrival at the scene of
occurrence.
The prosecution relied upon the recovery of the two
empty cartridges one of them .315 rifle and the other of 12
bore gun. By recovery of these cartridges the prosecution
tried to connect the appellants with the commission of the
crime as Raghvendra Singh was alleged to have fired from
.315 rifle and Awadhesh with 12 bore gun. The recovery of
these empty cartridges were not made on 4.1.1982 instead
these cartridges were recovered on 5.1.1982, although spot
map of the scene of occurrence was prepared on 4.1.1982
itself. It is interesting to note that the spot where these
cartridges were recovered was shown in the spot map prepared
on 4.1.1982 although recovery was made on 5.1.1982. The
witnesses in whose presence recovery of the cartridges were
made have not supported the prosecution. Moreover, it is the
admitted case of the prosecution that there was exchange of
fire from both sides, by the assailants as well as by
Rajendra Singh and Chhotey Bhaiya, but no other cartridges
were recovered by the investigating officer. The
investigating officer did not take into possession the
licenced rifle of Raghvendra Singh appellant and the 12 bore
gun of Awadhesh nor any effort was made to secure the
evidence of ballistic expert to prove that the empty
cartridges had been fired from the respective weapons. These
circumstances indicate that empty cartridges were not
recovered instead investigating officer planted these
cartridges to support the prosecution case.
On the evidence on record it is apparent that the
Chungi Chowki (Octroi Toll Barrier) was manned by the
employees of the Municipal Board and they were present at
the spot and in addition to them there was Home Guard Office
quite adjacent to the Toll Barrier and there were other
residential houses near the Barrier and the place of
occurrence was a busy public place. It has further come into
evidence that large number of persons had gathered at the
scene of occurrence but surprisingly enough no employee of
Toll Barrier, Home Guard or local resident came forward to
support the prosecution case. The District Magistrate,
Superintendent of Police and other officers had also reached
the spot within few minutes of the incident but none of them
entered the witness box to support the prosecution case. The
prosecution produced Udai Singh PW 17 and Kali Charan PW 19
who deposed that they had seen the appellants running away
with weapons and that they had recognised them. It is
interesting to note that Udai Singh and
524
Kali Charan are residents of Uttar Pradesh and they are
close relatives of the deceased, their presence at the scene
of occurrence was highly doubtful and their testimony is not
free from doubt, as they are highly interested persons. The
Trial Court rightly discarded their testimony as their
statement had been recorded by the police after two months
of the occurrence without there being any explanation for
the delay.
In his testimony Dr. Jain, who carried out the post
mortem examination of the dead body of deceased Ram Pratap
Singh, stated that he found following gun shot wounds:
"Gunshot wound No. 1:
(a) Wound of entrance: One circular wound 5 mm. in
diameter present two and a half inch below the
left exilla and half inch posterior to left
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exillary lime.
In the way the bullet had perforated the
following organs of the body-The bullet had passed
through the lateral side of left 5th-ribe. There
was a fracture of lateral side of left 5th ribe.
After that the bullet passed through the lower
third of left pleura and entered in the left lung
and perforated through the lung parindiama. There
was through and through (complete) perforation of
lower third of left pleura and lung. After exit
from the lung, it crossed through the past side of
right ventricle of heart. Posterior side of right
ventricle of heart was completely lacerated. After
exit from the posterior side of right ventricle of
heart the bullet passed through the upper border
of liver and the whole upper border of liver was
completely lacerated.
(b) Wound of Exit: One circular wound in diameter
present over posterior and right side of chest at
the level of 7th dorsel spine three and a half
inch right lateral in the vertibral column. The
margins of the wound were slightly lacerated.
There was fracture of 9th and 10th. ribe of right
posterior side. The direction of passage of bullet
of gun shot in wound No. 1 was antere-posteriorly.
Gunshot wound No:2:
(a) Wound of entrance-4 mm. diameter circular
wound present over left 6th. intercostal space 2"
lateral to left sterval
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border. After passing from the left 6th
intercostal space the bullet perforated the upper
part of stomach. After escaping from medial side
of stomach it came out from side of chest at the
level of 7th dorsal spine from the 8th intercostal
space of right posterior side.
(b) Wound of exit-one circular wound 5 mm. in
diameter present at the level of 7th dorsal spine
2 and half inch right lateral to spinal column.
The direction of bullet of gunshot in wound No. 2
was entre posteriorly. Thororic cavity was hugely
filled with dark coloured blood.
Gunshot Wound No. 3:
(a) Wound of entrance-3 mm. diameter circular
would present 1" above postre-lateral aspect of
right wrist. The bullet had passed through the
right radius have and the wound of exit was over
antro-lateral aspect 1" above the right wrist
joint. Wound of exit was circular 5 mm. in
diameter."
These injuries could not be caused in the manner and
from the place where assailants were alleged to be present
at the time of firing the gun shots, and the same are
inconsistent with the testimony of the eye witnesses and the
site plan. We do not think it necessary to discuss it in
detail as the trial court has discussed this question at
length and we agree with those findings. According to the
testimony of Rajendra Singh and Chhotey Bhaiya PWs, when the
deceased got gun shot injuries, he was at a higher level at
the well whereas the assailants fired the shots from Bari,
which was at lower level by one foot from the road and the
well was higher than the road by two or two and a half foot.
In this view if shots were fired from Bari, at the deceased
who was drinking water in a sitting posture, the injuries in
all likelihood would have been from lower part to upper part
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but Dr. Jain deposed that direction of the injuries caused
by bullet was from upper part to lower part and the bullet
was ante-posteriorly. In the opinion of the doctor, the
person who caused injuries to the deceased was at higher
level than the deceased, this is wholly inconsistent with
the testimony of eyewitnesses. Though medical expert’s
opinion is not always final and binding, but in the instant
case it corroborates other circumstances which indicate that
the eye-witnesses had not seen the actual occurrence.
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In view of the aforesaid facts and circumstances we are
satisfied that the prosecution has failed to prove its case
beyond all reasonable doubt, and the High Court committed
error in interfering with the trial court’s order of
acquittal. We accordingly allow the appeal set aside the
order of the High Court and the appellants’ conviction and
restore the order of the trial court and acquit the
appellants. The appellants are in jail, they shall be set
forth to liberty forthwith.
S.L. Appeal allowed.
527