Full Judgment Text
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PETITIONER:
NAIN SINGH AND ANR.
Vs.
RESPONDENT:
STATE OF UTTAR PRADESH
DATE OF JUDGMENT22/02/1991
BENCH:
PANDIAN, S.R. (J)
BENCH:
PANDIAN, S.R. (J)
FATHIMA BEEVI, M. (J)
CITATION:
1991 SCR (1) 685 1991 SCC (2) 432
JT 1991 (1) 596 1991 SCALE (1)334
ACT:
Constitution of India, 1950-Article 136-Special Leave
Petition -Criminal matters-Appeal arising from concurrent
finding of fact-Scope of interference.
HEADNOTE:
On 23.12.1976 at about 1 p.m. when Bali (deceased)
along with PWs 1 and 5 was in his field, the four appellants
each armed with a Lathi, along with Braham Singh armed with
a ’Ballam’, came there. On the exhortation of Chandroo, all
other appellants and Braham Singh attacked Bali with their
respective weapons and caused injuries to him. While PW-3
tried to save her husband, she too was injured. When PW-1
along with PWs 3 and 4 rushed to the scene of occurrence,
the assailants took to their heels. Injured Bali was
removed to the hospital. He succumbed to his injuries on
the same day at about 7.45 p.m.
It seems that there was trained relationship between
the appellants and the deceased for a considerable length of
time over grazing of cattle, resulting in damage to the
standing crops. On account of this, there was simmering
feeling between the parties. Added to that, there were
certain criminal prosecutions between the parties, pending
for over a period of two years.
The four appellants along with Braham Singh (since
acquitted by the Trial Court) took their trial. The Trial
Court found the four appellants guilty of offences under
section 302 read with section 34 and under section 323 read
with section 34 IPC and sentenced them to undergo
imprisonment for life and to six months’ rigorous
imprisonment respectively. The 5th accused, Braham Singh,
was acquitted.
On appeal, the High Court held that the prosecution had
not made out a case punishable under section 302 read with
section 34 IPC but only under section 304, Part II, IPC read
with section 34 IPC. The High Court sentenced each of them
to undergo rigorous imprisonment for a period of five years.
The conviction of all the appellants under section 323 read
with 149 IPC was altered into one under section 323 read
with 34 IPC and the sentence of six months’ rigorous
imprisonment was retained.
686
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Before this Court it was contended on behalf of the
appellants that since both the courts below had overlooked
the glaring infirmities and ignored the material evidence
supporting the defence theory as well as the manifest errors
appearing in the evidence, this Court would be justified in
interfering with the concurrent findings of both the courts.
According to the learned counsel, the prosecution had
shifted the scene of occurrence, changed the time of
occurrence, unduly delayed the registration of the case and
put forth a false explanation for its tardiness both in the
matter of registration and investigation of the case.
Allowing the appeals by setting aside the convictions
and the sentence imposed by the High Court, this Court,
HELD: (1) Under Article 136, Interference by the
Supreme Court will be called for even with the findings of
fact given by the High Court, if the High Court has acted
perversely or otherwise improperly. [690F]
The State of Madras v. A. Vaidyanatha Iyer, [1958]
S.C.R. 580; Himachal Pradesh Administration v. Shri Om
Prakash, [1972] 1 S.C.C. 249; Balak Ram v. State of U.P.,
[1975] 3 S.C.C. 219; Arunachalam v. P.S.R. Sadhananthan,
[1979] 3 S.C.R. 402; State of U.P. Hamit Singh & Ors.,
[1990] 3 S.C.C. 55; State of U.P. v. Pheru Singh & Ors.,
[1989] Suppl. 1 S.C.C. 288, referred to.
(2) The evidence adduced by the prosecution falls short
of the test of reliability and acceptability and as such it
is highly unsafe to act upon it. [697H]
(3) A thorough and scrupulous examination of the facts
and the circumstances of the case leads to an irresistible
and inescapable conclusion that the prosecution has
miserably failed to establish the charges leveled against
these appellants by producing cogent, reliable and
trustworthy evidence. Both the Courts below instead of
dealing with the intrinsic merits of the evidence of the
witnesses, have acted perversely by summarily disposing of
the case, pretermitting the manifest errors and glaring
infirmities appearing in the case. [698A-B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.
251 & 307 of 1990.
From the Judgment and Order dated 11.8.1989 of the
Allahabad High Court in Crl. A. No. 1239 of 1978.
687
S.C. Maheshwari, Y.C. Maheshwari, Miss Sandhya Goswami
and P.K. Chakraborty for the Appellants.
Prithvi Raj, Prashant Chaudhary and Dalveer Bhandari
for the Respondent.
The Judgment of the Court was delivered by
S. RATNAVEL PANDIAN, J. The appellants in criminal
appeal No. 251 of 1990 were accused Nos. 3 and 4 before the
trial court, namely, the VIIth Additional Sessions Judge,
Meerut, whereas the appellants in criminal appeal No. 307 of
1990 were accused Nos. 1 and 2 before the said court. These
four appellants along with one Braham Singh (since
acquitted) took their trial for offences under Sections 302
read with section 149 IPC and 323 read with section 149 IPC.
Besides, these four appellants were also charged for offence
under section 147 IPC whilst Braham Singh under section 148
IPC. The trial court, on appreciation of the evidence
adduced by the prosecution, found the 5th accused, Braham
Singh, not guilty of any charges and acquitted him.
However, these four appellants were found guilty of offences
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under section 302 read with section 34 IPC and under section
323 read with section 34 IPC and sentenced to undergo
imprisonment for life and to six months’ rigorous
imprisonment respectively. The High Court on appeal
preferred by all the appellants, for the reasons mentioned
in its judgment, held that the prosecution has not made out
a case punishable under section 302 read with section 34 IPC
but only under section 304, Part II, IPC read with section
34 and consequently set aside the conviction and the
sentence imposed for the offence under section 302 read with
section 34 IPC and instead convicted them under section 304
Part II, read with section 34 IPC and sentenced each of them
to undergo rigorous imprisonment for a period of five years.
The conviction of all the appellants under section 323 read
with 149 IPC was altered into one under section 323 read
with 34 IPC and the sentence of six months’ rigorous
imprisonment was retained. The facts of the case which have
given rise to the present appeals as unfolded by the
evidence, can be briefly stated thus:
Appellants in criminal appeal No. 307/90 are brothers.
Similarly appellants in criminal appeal No. 251/90 and
Braham Singh (who was arrayed as accused No. 5 before the
trial court) are also brothers among themselves.
PWs 1 and 5 are the brother and wife respectively of
one Bali
688
(the deceased herein). PW-1 and the deceased Bali had a
common ’Chak’. The appellants belonged to a village named
Kaulbhandora, which is at a distance of about four furlongs
from the Chak, situated just adjacent to the road and
’Rajbaha’. The appellants used to take the ’Rajbaha’ Patri
in auction for grazing their cattle. It seems that there
was strained relationship between the appellants and the
deceased for a considerable length of time. According to
the prosecution the cattle belonging to the appellants, when
allowed to enter the ’Patri’ (grazing field) used to stray
into the field of Bali and cause damage to the standing
crops. Although Bali made a protest, it did not yield any
result. On account of this, there was simmering feeling
between the parties. Added to that, there were certain
criminal prosecutions between the parties, pending for over
a period of two years.
On 23.12.1976 at about 1 p.m. when Bali along with PWs-
1 and 5 was in his field, these appellants each armed with a
Lathi along with Braham Singh armed with a ’Ballam’ came
there. On the exhortation of Chandroo, all other appellants
and Braham Singh attacked Bali with their respective weapons
and caused injuries to him. While PW-3 tried to save her
husband, she too was injured. When PW-1 along with PWs 3
and 4 rushed to the scene of occurrence, the assailants took
to their heels. Injured Bali was removed to the Hastinapur
hospital for treatment. PW-6, the medical officer attached
to the said hospital examined Bali and found on his person
as many as fifteen injuries of which injury No. 15 was a
stab wound and most of the other injuries were contusions.
PW-6 prepared a medical report, Exhibit Ka-6 and on the same
day he examined PW-5 and found on her person 2 contusions in
respect of which he prepared the injury report (Ex. Ka-7).
However, Bali succumbed to his injuries on the same day at
about 7.45 p.m. PW-1 lodged a written report (Ex. Ka-1) at
about 8 p.m. before PW-2 a Head Constable attached to the
Hastinapur Police Station. PW-2 prepared Exhibit Ka-2 on
the basis of Ex. Ka-1 and made G.O. entry i.e. Ex. Ka.-3.
PW-9, the then sub-Inspector of Police attached to the
Police Station took up the investigation and examined PW-1
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and others. He held the inquest over the dead body of the
deceased and prepared Ex. Ka-11, PW-5 could not make any
statement as she was unconscious. The PW-9 inspected the
spot and prepared a site plan Ex. Ka.-14 and seized certain
material objects including a piece of wood and blood stain
earth.
PW-7, yet another Medical Officer, conducted the post
mortem examination on the dead body of the deceased Bali on
24.12.1976 and found a number of injuries, as noted in his
post mortem report
689
Ex. Ka-8. According to PW-7, the death was due to shock and
haemorrhage as a result of the injuries sustained by the
deceased. PW-9, after completing the investigation, laid
the chargesheet against all the five accused. Though the
appellants admitted the earlier criminal prosecutions
between the parties, totally denied their complicity with
the offence of murder. Of the witnesses examined, PWs 4 and
5 corroborated the testimony of PW-1 but PW-3 was declared
hostile as this witness mentioned only the name of the first
appellant and denied participation of rest of the appellants
and Braham Singh and also the presence of the ocular
witnesses except PW-5. The trial court, however, found
accused Nos. 1 to 4 (all the appellants herein) alone guilty
of the offence, convicted and sentenced them as
aforementioned and acquitted the 5th accused Braham Singh.
On appeal, the High Court accepted the testimony of
PWs-1, 4 and 5 holding that they are giving a consistent
version in regard to the participation of the appellants in
attacking the deceased and agreed with the finding of the
trial court that these appellants were responsible for
inflicting the injuries on the deceased Bali and PW-5. But
coming to the nature of the offence perpetrated on the
deceased, the High Court held the offence as one punishable
under section 304 Part II but not under section 302 IPC and
consequently altered the conviction and the sentence as
indicated above while retaining the conviction under section
323 against all the appellants for causing injuries to PW-5.
Hence, the present appeals are directed by the appellants
who were accused Nos. 1 to 4 before the trial court.
Mr. Maheshwari, Senior Counsel appearing on behalf of
the appellants in both the appeals, forcibly contended that
since both the courts below have overlooked the glaring
infirmities and ignored the material evidence supporting the
defence theory as well as the manifest errors appearing in
the evidence, this Court would be justified in interfering
with the concurrent findings of both the courts, otherwise
substantial injustice would be caused to the appellants.
According to the learned counsel, the prosecution has
shifted the scene of occurrence, changed the time of
occurrence, unduly delayed the registration of the case and
put forth a false explanation for its tardiness both in the
matter of registration and investigation of the case; that
PW-9; the investigating officer, has deliberately feigned
ignorance of the receipt of Ex. Kha-1 in order to shield his
indolence and failure in immediately and promptly taking up
the investigation; that PW-1 and 4 in order to ventilate
their grievance which they were bearing against the
appellant’s party on account of the previous
690
animosity and simmering feelings that existed between them
and to settle their personal scores; that the credibility of
these two witnesses is impaired and their testimony is
successfully impeached. The learned defence counsel further
states that a thorough and strict scrutiny of the evidence
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furnished by PWs-1, 3 and 4 shows that the entire
prosecution story in concocted, fanciful and incredible and,
as such, it deserves to be rejected with scorn and that both
the courts below have completely pretermitted all the
pitfalls in the prosecution and have summarily disposed of
the case without subjecting the evidence under the usual
test of scrutiny.
Before we analyse the above contentions with reference
to the evidence adduced by the prosecution and see whether
the prosecution case suffers from any illegality and the
conclusion of the courts below from perversity, we shall
deal with the scope of interference of this Court in an
appeal arising from concurrent findings of fact. This Court
in The State of Madras v. A. Vaidyantha Iyer, [1958] SCR 580
at 588 while interpreting the scope of Article 136 of the
Constitution has ruled as follows:
"In Art. 136 the use of the words "Supreme Court
may in its direction grant special leave to appeal
from any judgment, decree, determination, sentence
or order in any cause or matter passed or made by
any court or tribunal in the territory of India"
shows that in criminal matters no distinction can
be made as a matter of construction between a
judgment of conviction or acquittal.
Having made the above rule, it has been said that the
interference by the Supreme Court will be called for even
with the findings of fact given by the High Court, if the
High Court has acted perversely or otherwise improperly.
Jaganmohan Reddy, J. agreeing with the view taken in
Vaidyanatha Iyer’s case has observed in Himachal Pradesh
Administration v. Shri Om Prakash, [1972] 1 SCC 249 thus:
"In appeals against acquittal by special leave
under Article 136, this Court has undoubted power
to interfere with the findings of fact, no
distinction being made between judgments of
acquittal and conviction, though in the case of
acquittals it will not ordinarily interfere with
the appreciation of evidence or on findings of fact
unless the High Court "acts perversely or otherwise
improperly".
691
Again in Balak Ram v. State of U.P., ([1975] 3 SCC 219
at page 227) this Court held as follows:
"The powers of the Supreme Court under Article 136
are wide but in criminal appeals this Court does
not interfere with the concurrent findings of fact
save in exceptional circumstances."
In Arunachalam v. P.S.R. Sadhananthan. [1979] 3 SCR 482
at page 487 this Court while reinstating the principles laid
down in Vaidyanatha Iyer & Om Prakash, cases, has stated
thus:
"The power is plenary in the sense that there are
no words in Article 136 itself qualifying that
power. But the very nature of the power has led
the Court to set limits to itself within which to
exercise such power. It is now the well established
practice of this Court to permit the invocation of
the power under Article 136 only in very
exceptional circumstances, as when a question of
law of general public importance arise or a
decision shocks the conscience of the Court. But
within the restrictions imposed by itself, this
Court has the undoubted power to interfere even
with findings of fact making no distinction between
judgment of acquittal and conviction, if the High
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Courts in arriving at those findings, has acted
"perversely or otherwise improperly".
See also State of U.P. v. Hamik Singh & Ors., [1990] 3
SCC 55 and State of U.P. v. Pheru Singh & ORs., [1989] Supp.
1 SCC 288 to which one of us (S. Ratnavel Pandian, J.) was a
party.
Bearing the above proposition of law, we shall now
examine the evidence and see whether the concurrent findings
of fact call for an interference.
With regard to the place of occurrence, learned counsel
drew our attention to the first information report and to
the evidence of the witnesses including that of PW-9, and
pointed out that the prosecution had changed the scene of
occurrence. In the first information report under column
’place of occurrence’, it is mentioned as ’Jungle Village,
Ganeshpur’. PW-1 in his cross-examination has admitted that
the ’Chak’ in which the murder took place is situated in the
jungle of village Bhandora and not in the jungle of village
Ganeshpur. A suggestion, though denied, has also been made
by the defence to PW-1 that
692
they have changed the place of occurrence from Ganeshpur to
Bhandora. PW-2 who was then the Head Constable attached to
Hastinapur Police Station, states that on submission of Ex.
Ka-1 by PW-1 he prepared a chik report Ex. Ka-2 and that he
mentioned the place of occurrence as jungle of village
Ganeshpur only on the basis of the written report.
It is the evidence of PW-9 that he reached village
Bhandora and did spot inspection thereby admitting that the
place of occurrence was village Bhandora and not Ganeshpur.
a scrutiny of Ex. KA-1 shows that PW-1 did not give the
specific place of occurrence in that earliest document. It
appears from the evidence of PWs 1 and 9 as well as the
entry under column No. 2 of the First Information Report
that the prosecution was probing in darkness even in respect
of the place of occurrence. Even in Ex. Ka-3 a memo
prepared by PW-9 for seizure of the blood-stained earth, the
place of occurrence is not mentioned. Hence, we hold that
the submission made on behalf of the defence even at the
threshold that the place of occurrence is changed or at any
rate not specifically fixed, cannot be said to be without
force.
We shall then scrutinise the evidence with regard to
the time of occurrence. According to the prosecution, the
occurrence took place at about 1.00 p.m. on 23.12.1976.
Immediately, after the occurrence, the injured Bali & PW-5
were brought to the hospital which is at a distance of three
miles from the scene of occurrence. Ex. Kha-1 was prepared
by the Medical Officer i.e. PW-6 on examing Bali. Ex. Ka-7
is a report prepared by medical officer PW-6 relating to the
injuries found on PW-5. This document Ex. Ka-7 reveals that
PW-5 was examined at about 3.30 p.m. Therefore, the injured
Bali could have been examined by PW-6 earlier to 3.30 p.m.
It may be mentioned here what PW-1 has stated that they
reached the hospital approx, between 2 and 3 p.m. The
medical officer has opined that the injuries found on the
injured could have been caused within six hours. When a
specific question had been addressed to this medical officer
(PW-6) as to whether the injuries could have been caused at
about 5/6 a.m. he would say: "It could have been caused at
8’O clock". We are not rejecting the case of the
prosecution on this admission of the medical officer stating
that the probable time of the causation of the injuries
could be 8 a.m. But the question would be, even admitting
that the occurrence took place at about 1 p.m., whether the
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prosecution convincingly and satisfactorily established the
guilt of the appellants by leading cogent and reliable
evidence.
693
The next important point for determination is whether
the case has been promptly registered and the investigation
proceeded without causing undue delay thereby giving no room
enabling the prosecution party to deliberately concoct a
case against these four appellants. It transpires from the
evidence of PW-6 that he sent the information under Ex. Kha-
1 to the Police Station through his peon intimating the fact
of Bali having been bought to the hospital with a number of
bleeding injuries in a very serious condition and also of
PW-5 having been admitted in the hospital for treatment of
the injuries sustained by her and the said document Ex. Kha-
1 was sent by 4.30 p.m. on 23.12.1976 itself and the
hospital’s peon had brought the Receipt evidencing the
handing over of the intimation to the police. It is only
thereafter that PW-1 prepared Ex. ka-1 and handed it over to
PW-2 at about 8 p.m. on 23.12.1976. According to PW-2,
after registration of the case, a death memo was received at
the Police Station at about 8.15 p.m. saying that Bali had
expired in the hospital at about 7.40 p.m.
According to PW-1, the distance between the hospital
and the police station is about 1 or 2 furlongs and that the
police station is not situated near the hospital.
Nonetheless PW-1 would admit when confronted further that
the distance between the gates of the hospital and the
police station would be about 50 steps. Be that as it may,
the fact ramains that both the hospital and the police
station are situated within a very short distance.
Admittedly, neither PW-1 nor any of PWs-3 and 4 went to the
police station to inform about the occurrence though they
reached the hospital even by 2 p.m. The only explanation
given by PW-1 is that he was busy enquiring about the
condition of his brother. This explanation of PW-1 is
totally unacceptable because after both injured persons,
namely, Bali & PW-5 were brought to the hospital they were
examined only by the medical officer, PW-6. There was
nothing preventing either PW-1 or any of the other witnesses
in going to the police station and informing the police, if
really they were eye witnesses to the occurrence and were in
the hospital from 2 p.m. onwards, leaving apart PW-5 who was
undergoing treatment in the hospital. The delayed
preparation of Ex. Ka-1 by PW-1 at the hospital after seven
hours of the occurrence and that too after the death of his
brother, leads to an indelible impression that PW-1 and
other interested persons who were enimically disposed
towards the appellants should have prepared Ex. Ka-1 after
due deliberation and consultation. The abortive
explanation for not going to the police station for six
hours after reaching the hospital is unworthy of credence.
694
The next and even more important point for
consideration is the much delayed investigation. The
conduct of PW-9 in not taking an immediate action even after
Ex. Kha-1 was handed over at the police station by 4.30 p.m.
or at any rate after receipt of Ka-1 and the death
intimation creates a suspicion in the veracity of the
prosecution case. Though PW-2 admits that he received the
death intimation by about 8.15 p.m., PW-9, the investigating
officer, has feigned total ignorance about Ex. Kha-1 stating
thus:
"Before this F.I.R. no intimation was received at
the police station about this occurrence that Bali
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was injured and admitted in the hospital and his
condition was critical. It is wrong that any
information was received at the Police Station
before this F.I.R. which I am concealing. I do not
know whether Ex. Kha-1 was received in the police
station or not. During the investigation Ex. Kha-1
never came to my knowledge. This paper came to my
knowledge during the investigation and I made a
copy of this in the case Diary. I do not know
whether this Letter was recorded in the General
Diary or not. No copy of G.D. is recoorded in my
case diary in connection with Ex. Kha-1. No such
note is there in my case diary that I had seen any
G.D. which is related to Ex Kha-1. I have not
recorded any statement of the H.M. relating to Ex.
Kha-1."
We shall examine whether PW-9 took up the investigation
at least after registration of the case without causing
further delay. PW-2 states that the investigating officer
took up the investigation at about 8 p.m. on 23.12.1976 and
went to the hospital and returned to the police station
only on the next day i.e. 24.12.1976 at 9.50 p.m. PW-9 has
lodged in his presence by PW-1 and that he immediately took
up the investigation during the course of which he examined
PW-1 and then come to the hospital where he examined the
medical officer Dr. B.D. Goel (PW-6) and saw the dead body
lying in the male ward. He continues to state that as PW-5
was in an unconscious condition, he could not examine her
and as the light went off, he could not prepare even the
Panchnama. This piece of evidence of PW-9 that he took up
the investigation even at 8 p.m. is not only contradicted
but also falsified by the testimony of PW-1 according to
whom after lodging the report he immediately came back to
the hospital and remained there till next morning and that
the Sub-Inspector (PW-9) came to the hospital for the first
time in the morning of 24.12.1976 and only thereafter he was
695
examined. PW-4 also states that the investigating officer
came to the hospital only in the next morning. PW-6, the
medical officer, does not speak of the Sub-Inspector having
came to the hospital on the night of occurrence and has
stated that he did not remember of the Sub-Inspector or any
constable reaching the hospital after receipt of the death
intimation or any one examining him on that date. The said
pieces of evidence, namely, the total unawareness of PW-9
about the existence of Ex. Kha-1 as well as the entry in the
general diary made thereon and the diametrically
contradictory evidence of PW-9 on the one hand and that of
PWs-1,4 and 6 on the other, clearly indicate that either PW-
9 did not have any knowledge about the incident till the
next morning or even if he had such knowledge, he
deliberately delayed the investigation; and his present
version is nothing but a deliberate perjury and as such his
evidence has to be thrown overboard as unworthy of credence.
In the cross-examination, it is admitted by PW-9 that
he did not write the names of the appellants/accused in the
Panchnama and that he did not try to know the kinds of
weapons that had been used by the assailants. On the basis
of this admission a suggestion had been addressed to him
that the FIR relating to this incident, was prepared and
lodged only after preparation of the Panchnama thereby
indicating that the FIR was anti-dated.
We shall now scan the evidence of PWs-1, 3 and 4
examine whether their evidence could be accepted and acted
upon. Admittedly, there was deep rooted animosity between
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the prosecution party and the appellants over a period of
some years and they have developed bad blood. It is the
evidence of PW-1 that there were a number of criminal cases
against deceased Bali along with one Birbal Kishore and Omi
who were persons of notorious character in that village.
Besides, there were some more cases and counter cases
between the parties. A suggestion has been addressed to PW-
1 that his brother Bali was having close connection with one
Ramanand who was a known decoit belonging to their village
but PW-1 has denied the relationship of Bali with Ramanand.
PW-4 admits that there was a dispute between Bali and the
appellants in which Bali had beaten them and in that case he
was a co-accused along with PW-1 and deceased Bali. PW-3
who has been treated as a hostile witness since he did not
implicate all the appellants by their names except Chandroo
has admitted that there was a case against Bali and Birbal
Kishore in which he was a witness on the side of Bali and
that there was a double murder case in which he (PW-3) was
an accused and convicted. In that murder case one Roop
696
Ram, cousin of appellant Chndroo was a witness on the
prosecution side. Thus it comes out of the evidence of
these witnesses that all was not well between the parties
and each one was having grudge against the other.
As pointed out by Mr. Maheshwari, learned counsel
appearing for the appellants, the conduct of PW-1 belies his
presence at the sence of occurrence as he did not intervene
when his brother (deceased) and sister-in-law (PW-5) were
attacked by the appellants and another and if PW-1 had
really been at the scene, he having been a co-accused along
with his brother in previous case, would not have been
standing as a mute spectator without taking any part in the
occurrence in which case he would also have received
injuries. In Ex. Ka-1 he has mentioned PWs-3 and 4 as eye
witnesses who were enemically disposed of towards the
appellants and who were interested in the prosecution. As
seen from the evidence of these three witnesses, they all
belong to one group either having been co-accused in one
case or other along with Bali or taking up the cause of Bali
when the latter was involved in other criminal cases. In
fact, one sentence in Ex. Ka-1 would indicate that PWs-1, 3
and 4 were not at the scene at the time of occurrence but
came to the spot later on. The relevant version in Ex. Ka-
1 reads: "On alarm, I and my uncle Chotte Lal and Shiv
Charan of the village reached the spot and saved them" Of
course, he at the next breath would claim to have witnessed
the occurrence. We have also noted that the place of
occurrence is not satisfactory fixed; and that the evidence
of PW-1 giving the reasons for the presence of his deceased
brother with PW-5 in the field, is also falsified by the
evidence of PW-9. According to PW-1, his deceased brother
and PW-5 were harvesting sugarcane in the field at the time
of occurrence. But PW-9 has deposed that at the time of
spot inspection he did not find any Bugi, Dokra, Phawara,
Dranti or harvested sugarcane. This contradictory evidence
when taken along with our finding with regard to the
fixation of the scene of occurrence goes to show that PW-1
could not have been present at the scene of occurrence and
only after a deliberation he has posed himself as one of the
eye-witnesses and projected PWs 3 and 4 as other eye
witnesses along with him. PW-4 during the course of cross-
examination has admitted that except himself, PWs 1 & 5,
none reached the scene and people came to the scene of
occurrence later on. After reaching the hospital along with
injured, PW 4 states that all of them remained in the
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hospital near the dead body and that he went to the police
station in the morning of the next day at about 7.00 a.m. As
we have pointed out earlier, PW 3 has not implicated all the
appellants except Chandroo by name and as such, he has been
treated
697
as a hostile witness. PW 3 is none other than the uncle of
PW 1 and the deceased, therefore, in view of the inherent
infirmities adversely affecting the testimony of these eye
witnesses, it would not be safe to convict the appellants on
the scanty evidence. The author of the earliest document
Ex. Ka-1, namely, PW-1 seems to be a man of dubious
character and his evidence is completely tarnished. A
thorough scrutiny of the evidence shows that the testimony
of the eye witness is ambulatory and vacillating and compels
this Court not to place any safe reliance.
Lastly, we are left with the evidence of PW-2 who is an
injured witness. The presence of PW-2 at the scene is
fortified by the injuries found on her person. After
scanning her evidence very carefully, we are unable to
safely accept her evidence since it is not only tainted with
highly interestedness but also a coloured version, falling
in line with that of PW 1. She states that she was
unconscious for 2 days and that it was she who told PWs 1
and 4 as to who were the assailants. Immediately in the
next breath, PW 5 comes forward to say that on the next day
she told all the facts to the investigating officer and
again became unconscious after coming to know the death of
her husband. To a Court question, she gives a prevaricating
answer that she was conscious for some time and then became
unconscious. Though at one time, she testifies that she was
beaten with sticks, she suddenly changes her evidence giving
a contradictory version that she did not know whether she
was beaten or not. Though all the witnesses in a parrot-
like manner deposed that these 4 appellant along with Braham
Singh armed with ballam attacked the deceased, their
evidence when subjected to strict examination becomes
unworthy of credence. The Trial Court on entertaining a
grave doubt about the participation of Braham Singh with a
ballam, acquitted him despite the fact that PW 6 has noted a
stab wound on the inner side of left thigh measuring 2 x 1 x
1.5 cms which injury in the opinion of the medical officer
could have been caused by a sharp edged weapon like
’ballam!. The acquittal of Braham Singh was not challenged
by the prosecution before the High Court, and therefore, we
are not called upon to discuss on this aspect of the case.
However, it is clear that the trial Court was not inclined
to accept a part of the evidence of these 3 witnesses i.e.
PWs 1, 4 & 5 relating to the participation of Braham Singh.
In our considered opinion, the evidence, adduced by the
prosecution, falls short of the test of reliability and
acceptability and as such it is highly unsafe to act upon
it.
698
A thorough and scrupulous examination of the facts and
the circumstances of the case leads to an irresistible and
inescapable conclusion that the prosecution has miserably
failed to establish the charges levelled against these
appellants by producing cogent, reliable and trustworthy
evidence. Both the Courts below instead of dealing with the
intrinsic merits of the evidence of the witnesses, have
acted perversely by summarily disposing of the case,
pretermitting the manifest errors and glaring infirmities
appearing in the case.
For all the aforementioned reasons, we allow the
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appeals by setting side the convictions and the sentence,
imposed by the High Court and acquit the appellants. The
bail bonds, executed by the appellants, are discharged.
R.S.S. Appeals allowed.
699