Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1200 1202 OF 2022
[Arising out of SLP(Criminal) Nos.86248626 of 2019]
KHEMA @ KHEM CHANDRA ETC. ...APPELLANT(S)
VERSUS
STATE OF UTTAR PRADESH ...RESPONDENT(S)
J U D G M E N T
B.R. GAVAI, J.
Leave granted.
1.
2. These appeals challenge the judgment and order
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dated 30 April 2019 passed by the High Court of Judicature
at Allahabad in Criminal Appeal Nos. 6961, 7260 and 6227
of 2006, thereby dismissing the appeals filed by the
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appellants and confirming the judgment and order dated 28
September 2006 passed by the Additional Sessions Judge,
Court No.4, Mathura (hereinafter referred to as “trial court”)
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in Sessions Trial Nos. 515 and 655 of 2002 convicting the
appellants for offences punishable under Section 302 read
with Section 149, Section 307 read with Section 149 and
Section 148 of the Indian Penal Code, 1860 (for short ‘IPC’)
and sentencing them to undergo imprisonment for life with a
fine of Rs. 5,000/ each.
3. The prosecution case in brief is thus:
The marriage of two daughters of deceased Prakash
st th
was to be solemnized on 1 May 2002. On 27 April 2002 at
around 08.00 am, when deceased Prakash and his wife Kripa
were going to extend invitation to their relatives, near the
house of accused Deepi, all the accused persons who were
hiding themselves inside the house, came out carrying
weapons. Accused Deepi and Kanhaiya were having
farsa
with them whereas accused Khema @ Khem Chandra was
having a club. Accused Jasram, Balveer and Mahaveer were
having country made pistols with them. All of them started
assaulting deceased Prakash and threw him on the brick
road. Inder (PW2), brother of deceased Prakash, his sister
Omwati and wife Kripa came forward to save the life of
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deceased Prakash. However, accused persons assaulted
them as well. In the said assault, Inder (PW2) suffered
gunshot injury. On the basis of information given by Omveer
(PW1), brother of deceased Prakash, an FIR came to be
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lodged on 27 April 2002 at 10.10 am. On the basis of the
said FIR, a crime for the offences punishable under Sections
147, 148, 149, 307, 302 and 506 of the IPC came to be
registered against the accused persons. After completion of
investigation, a chargesheet came to be filed in the trial
court. Since the case was triable exclusively by the Sessions
Judge, it was committed to the learned Sessions Judge. The
learned Sessions Judge framed the charges against the
accused persons for the offences punishable under Sections
147, 148, 302 read with 149 and 307 read with 149 of the
IPC. Charge was also framed against accused Balveer under
Section 25 of the Arms Act, 1959 (hereinafter referred to as
the “Arms Act”) and against accused Deepi under Section
4/25 of the Arms Act. The accused persons pleaded not
guilty and claimed to be tried. At the conclusion of the trial,
the trial court convicted the appellants as aforesaid. Being
aggrieved thereby, the appellants had filed appeals before the
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High Court, which were also dismissed, thereby confirming
the judgment and order of conviction and sentence passed by
the trial court. Being aggrieved thereby, the appellants have
approached this Court.
We have heard Shri Rajul Bhargav, learned Senior
4.
Counsel appearing on behalf of the appellants, Ms. Garima
Prashad, learned Additional Advocate General for the State
and Shri S.R. Singh, learned Senior Counsel appearing on
behalf of the first informant.
Shri Bhargav submitted that the trial court and the
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High Court have grossly erred in convicting the appellants.
He submitted that the appellants have been falsely
implicated in the case. It is submitted that though Omveer
(PW1) is projected as an eye witness, it is clear from his
testimony that he could not have witnessed the incident. He
submitted that even the trial court has held that from the
deposition of Omveer (PW1), it is clear that he has not
witnessed the incident. He further submitted that Inder
(PW2) who is said to be an injured witness, also appears to
be a planted witness. It is submitted that from the evidence
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of the prosecution witnesses, there is serious doubt with
regard to the timing as to when Inder (PW2) has sustained
injuries and as to when he was medically examined. He
submitted that there are material contradictions and
inconsistencies in the evidence of Inder (PW2) and Dr.
Anoop Kumar (PW6).
6. The learned Senior Counsel further submitted that
the socalled recoveries at the instance of appellants are also
false and could not have been relied upon. The learned
Senior Counsel submitted that the prosecution has not
examined Vijay Singh, brother of the deceased, who was the
first to inform the incident to the Police Station Shergarh on
telephone. It is submitted that the station diary entry on the
basis of telephonic information given by Vijay Singh has also
not been brought on record by the prosecution. It is therefore
submitted that the prosecution has tried to suppress the real
genesis of the incident. It is further submitted that though
Kripa and Omwati, wife and sister of the deceased are said to
have received injuries, they have not been examined. It is
further submitted that though independent witnesses were
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available, the prosecution has failed to examine them and as
such, an adverse inference is required to be drawn against
the prosecution. The learned Senior Counsel therefore
submitted that the judgment and order passed by the trial
court and maintained by the High Court is liable to be
quashed and set aside.
7. Ms. Prashad submitted that merely because Omveer
(PW1) and Inder (PW2) are relatives of the deceased, it
cannot be a ground for discarding their testimonies. It is
submitted that both of them have undergone cross
examination and nothing damaging could be elicited in their
crossexamination. She further submitted that the ocular
testimonies of Omveer (PW1) and Inder (PW2) are duly
corroborated by the recovery of incriminating material on the
memorandum under Section 27 of the Evidence Act, 1872
(hereinafter referred to as the “Evidence Act”). The learned
Senior Counsel therefore submitted that no interference is
warranted in the concurrent orders passed by the trial court
and the High Court.
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8. Shri Singh, learned Senior Counsel submitted that
Inder (PW2) is an injured witness. He therefore submitted
that in view of the law laid down by this Court in the case of
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Jarnail Singh and Others v. State of Punjab , the
testimony of the injured witness will have a special
evidentiary status. He also relies on the judgment of this
Court in the case of
Abdul Sayeed v. State of Madhya
2
Pradesh to further buttress his submission.
Shri Singh further submitted that the findings of the
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trial court as well as the High Court are based upon
appreciation of evidence. He submitted that this Court will
not normally enter into reappraisement or review of the
evidence unless the decision of the High Court is vitiated by
error of law or procedure. He relies on the judgment of this
Court in the case of Smt. Dalbir Kaur and Others v. State
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of Punjab .
10. A perusal of the judgment of the trial court as well as
the High Court would reveal that the conviction is based
1 (2009) 9 SCC 719
2
(2010) 10 SCC 259
3 (1976) 4 SCC 158
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basically on the testimonies of Omveer (PW1) and Inder
(PW2). The Court has sought corroboration to the
testimonies of these witnesses from the recoveries made on
the basis of memorandum of the accused under Section 27 of
the Evidence Act. The trial court observed that the farsa was
seized on the basis of identification done by accused
Kanhaiya. The trial court further observed that the weapons
and rifle were seized at the instance of accused Deepi
farsa
and Balveer.
11. To examine the correctness of these findings, we will
first assess the testimony of Omveer (PW1) and Inder (PW2).
Both these witnesses are brothers of deceased Prakash. As
such, they would fall in the category of interested witnesses,
being related to the deceased. However, their testimonies
cannot be discarded only on the ground that the witnesses
are interested witnesses. The only requirement would be
that the evidence of such witnesses is required to be
scrutinized with greater care and circumspection.
12. Omveer (PW1) states that when his deceased
brother Prakash and Kripa (wife of Prakash) along with their
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sister Omwati were going to extend invitation for the
upcoming marriage, all the accused persons were hiding
themselves in the house of Deepi. On seeing deceased
Prakash, all of them came out. Accused Deepi and Kanhaiya
were armed with farsa , accused Khema @ Khem Chandra
was armed with lathi , accused Jasram and Mahaveer were
armed with country made pistols and accused Balveer was
having a rifle and they assaulted his deceased brother
Prakash. He states that the blows were given from the
reverse side of the farsa . He states that on hearing hue and
cry, he as well as other residents of the village reached at the
spot and saw the occurrence. There are many improvements
in the deposition of Omveer (PW1). It will be relevant to
refer to an excerpt from the crossexamination of Omveer
(PW1):
“When the quarrel started, then I was inside my
house. I heard fourfive rounds of firing. I came out
of the house after hearing the sound of firing and
after reaching the spot, then I found that Prakash
was lying dead. When I reached at the spot, then
Inder was at the spot. Inder had fallen after
sustaining the injury. He was not fully
unconscious.”
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It will also be relevant to note that even Inder (PW2)
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has also admitted that Omveer (PW1) was inside the house
when the incident occurred.
14. Not only this, but the trial court itself has observed
in its judgment thus:
“It is explicit on perusal of testimony of said witness
in entirety that said witness was not present at the
spot since earlier, but he reached at the spot after
hearing the gunshots. Therefore he did not see the
occurrence, but due to he having reached at the
spot after hearing the hue and cry, so the testimony
of said witness is significant with respect to
presence of the accused at the spot and they had
been armed with the weapons as disclosed and that
having been given by them that in case anybody
would get the first information lodged, then he
would be killed.”
15. It is thus clear that even the trial court has come to
a conclusion that Omveer (PW1) could not have witnessed
the incident.
16. That leaves us with the testimony of Inder (PW2).
No doubt that Inder (PW2) is an injured witness and
therefore, his testimony could not be brushed aside lightly.
The reliance placed by Shri Singh on the judgments of this
Court in the cases of (supra) and
Jarnail Singh Abdul
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Sayeed (supra) is well merited. The fact that the witness
received injuries establishes his presence at the scene of
occurrence. The evidence of such a witness cannot be
rejected unless there are strong grounds for such rejection.
Inder (PW2) has given detailed narration as to how the
incident has occurred. He has stated that accused Deepi
and Kanhaiya assaulted with farsa , accused Khema
assaulted with lathi and accused Balveer, Mahaveer and
Jasram assaulted with the butts of their guns. Accused
Balveer, Mahaveer and Jasram fired simultaneously. He
states that when Omwati lay on him to save him, accused
persons assaulted Omwati with stones and danda .
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The incident had occurred on 27 April 2002.
17.
However, the statement of Inder (PW2) was recorded under
st
Section 161 Cr.P.C. on 21 May 2002. In his cross
examination, he admitted that the police did not interrogate
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him on 30 April 2002. Not only is there a long delay in
recording his statement but there are serious discrepancies
with regard to the medical examination of Inder (PW2) as
well. In the injury report (Ex.P7), the time of examination is
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stated to be 10.20 pm. From the evidence of Omveer (PW1)
and Inder (PW2), it is clear that after the incident occurred,
they had gone to Police Station Shergarh and they were in
the Police Station Shergarh from 10.00 am to 11.00 am. In
his evidence, Inder (PW2) has stated that he has reached the
hospital at 12.00 o’clock and that his medical checkup was
done during day time. In his examinationinchief, Dr. Anoop
Kumar (PW6) has stated that there was a possibility that the
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injuries were inflicted at 08.00 am on 27 April 2002. In his
crossexamination, he admits that in the report of medical
examination, he has mentioned the injuries as fresh meaning
thereby that such injuries had been inflicted within a period
of 2 hours to 6 hours. He further admits that the medical
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examination was done at 10.20 pm on 27 April 2022. As
such, the injuries could be inflicted subsequent to 04.20 pm.
He has further admitted that there are no entries made with
respect to the injuries caused to Inder (PW2) in the
concerned register.
18. It is pertinent to note that after noticing such
inconsistencies with regard to time of injuries sustained and
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the time of medical examination of Inder (PW2), Dr. Anoop
Kumar (PW6) was recalled at the request of the Additional
District Government Pleader. In his reexamination, he has
stated that due to some mistake, 10.20 pm was mentioned in
the medical examination report and actually, it was done on
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27 April 2002 at 10.20 am. In his further cross
examination, he has given contradictory answers. He has
stated that he had never done duty in the night and
therefore, he could say that he had not done the medical
examination at 10.20 pm. He has further admitted that the
duties are fixed on the basis of the roster and the duties are
not on a regular basis. He has further admitted that they are
required to do the duties on shift basis. It could thus clearly
be seen that there are serious discrepancies with regard to
the time of injuries sustained and the time of medical
examination of Inder (PW2).
The version of Dr. Anoop Kumar (PW6) that he had
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examined Inder (PW2) at 10.20 am itself is falsified by the
evidence of Omveer (PW1) and Inder (PW2). According to
both of them, they were in the Police Station Shergarh from
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10.00 am to 11.00 am and thereafter, Inder (PW2) left for
Mathura. Even according to Inder (PW2), he reached
Mathura after 12.00 o’clock. He stated that after reaching
the hospital, he was examined after about 2 hours. As such,
even if the version of Dr. Anoop Kumar (PW6) in re
examination that he had examined Inder (PW2) at 10.20 am
is to be accepted, the same is totally inconsistent with the
testimony of Omveer (PW1) and Inder (PW2). As such, the
possibility of some fabrication in the injury certificate cannot
be rejected.
We are conscious that on the ground of minor
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inconsistencies, the evidence of Inder (PW2) cannot be
brushed aside. However, it is to be noted that there are
material improvements in his evidence. His evidence
therefore is required to be scrutinized with greater caution
and circumspection. It is further to be noted that even
according to the prosecution, there is previous enmity
between the accused and the deceased. As held by this
4
Court in the case of Ramashish Rai v. Jagdish Singh ,
previous enmity is a doubleedged sword. On one hand, it
4 (2005) 10 SCC 498
14
provides motive to the crime and on the other, there is a
possibility of false implication.
This Court, in the celebrated case of
21. Vadivelu
5
Thevar v. State of Madras , has observed thus:
“…….Hence, in our opinion, it is a sound and
wellestablished rule of law that the court is
concerned with the quality and not with the
quantity of the evidence necessary for proving or
disproving a fact. Generally speaking, oral
testimony in this context may be classified into
three categories, namely:
( 1 ) Wholly reliable.
( 2 ) Wholly unreliable.
( 3 ) Neither wholly reliable nor wholly unreliable.
In the first category of proof, the court should
have no difficulty in coming to its conclusion either
way — it may convict or may acquit on the
testimony of a single witness, if it is found to be
above reproach or suspicion of interestedness,
incompetence or subornation. In the second
category, the court equally has no difficulty in
coming to its conclusion. It is in the third category
of cases, that the court has to be circumspect and
has to look for corroboration in material particulars
by reliable testimony, direct or circumstantial..……”
5 [1957] SCR 981
15
22. We find that the testimony of Inder (PW2) would fall
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under the 3 category i.e. his evidence can be said to be
“neither wholly reliable nor wholly unreliable”. As such, it
will be necessary that there is some corroboration to his
ocular testimony.
23. The trial court had relied on the recoveries of the
weapons on the memorandum of the accused persons alleged
to have been used in the commission of crime. Insofar as the
seizure at the instance of accused Kanhaiya is concerned, he
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was arrested on 1 May 2002. It is to be noted that there are
no independent panchas to the seizure memo. Apart from
that, the memorandum statement of accused Kanhaiya, as is
required to be recorded under Section 27 of the Evidence Act,
has also not been brought on record.
24. Insofar as the recoveries at the instance of accused
Deepi and Balveer are concerned, the said accused have
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surrendered in court on 7 May 2002. Inspector Ashok
Kumar Singh, Investigating Officer (PW7) has stated that on
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8 May 2002, a search for the weapons was made in Burji at
Kosi Road, but he could not recover any weapon. However
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on 17 May 2002, the recoveries are alleged to have been
made at the instance of accused Deepi and Balveer. Even
the seizure memo of the recovery in respect of these two
accused is not signed by any independent panch witness. In
the case of these two accused, the memorandum recorded
under Section 27 of the Evidence Act is also not placed on
record. As such, the said recoveries cannot be said to be free
from doubt.
25. It is further to be noted that immediately after the
incident, Vijay Singh, brother of deceased Prakash as well as
Omveer (PW1) and Inder (PW2), informed about the incident
to Police Station Shergarh on telephone which fact has come
on record in the evidence of Omveer (PW1) and Inder (PW2).
Neither Vijay has been examined nor has the station diary
entry with regard to the said telephonic message been placed
on record. Though Inder (PW2) has admitted that the
incident was witnessed by Parmal, Rajveer and other
residents, none of them was examined. As such, the
possibility of the prosecution not bringing on record the real
genesis of the incident cannot be ruled out.
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26. Shri Singh has strongly relied on the judgment of
this Court in the case of (supra) in
Smt. Dalbir Kaur
support of the submission that in view of the concurrent
findings of fact, this Court should not reappreciate the
evidence. No doubt that the reliance placed by Shri Singh on
the judgment of this Court in the case of
Smt. Dalbir Kaur
(supra) is well merited. However, it is to be noted that this
Court, in a catena of cases, has held that though in cases of
concurrent findings of fact this Court will not ordinarily
interfere with the said findings, in exceptional
circumstances, this Court is empowered to do so. If this
Court finds that the appreciation of evidence and findings is
vitiated by any error of law or procedure or found contrary to
the principles of natural justice, errors of record and
misreading of the evidence, or where the conclusions of the
High Court are manifestly perverse, this Court would not be
powerless to reappreciate the evidence. Reliance in this
respect could be placed on the judgments of this Court in the
cases of
Himachal Pradesh Administration v. Shri Om
6
Prakash , Arunachalam v. P.S.R. Sadhanantham and
6 (1972) 1 SCC 249
18
7
Another , Mithilesh Kumari and Another v. Prem Behari
8 9
, , and
Khare State of U.P. v. Babul Nath Pattakkal
Kunhikoya (Dead) By LRs. v. Thoopiyakkal Koya and
10
.
Another
27. Recently, this Court in the case of
Ashoksinh
11
Jayendrasinh v. State of Gujarat had also held that
when the High Court has failed to appreciate the oral
evidence, this Court would certainly be entitled to appreciate
the evidence in correct perspective. In the said case also,
this Court, finding that the conviction was recorded after
ignoring the vital evidence, has set aside the order of
conviction and acquitted the accused.
In the present case, we notice that the trial court as
28.
and the High Court have failed to take into consideration the
vital discrepancies and inconsistencies in the evidence of the
prosecution witnesses.
29. From the perusal of the evidence as well as the
findings of the trial court itself, it is clear that Omveer (PW1)
7 (1979) 2 SCC 297
8
(1989) 2 SCC 95
9 (1994) 6 SCC 29
10
(2000) 2 SCC 185
11 (2019) 6 SCC 535
19
cannot be said to be an eye witness. Though, Inder (PW2) is
an injured eye witness, there are serious discrepancies and
inconsistencies with regard to time of the injuries sustained
and time at which he was medically examined. Dr. Anoop
Kumar (PW6), in his evidence, has changed his stance on
several occasions. His testimony is totally contrary to that of
Omveer (PW1) and Inder (PW2). As held by us, it will not be
safe to base the conviction on the sole testimony of Inder
(PW2) though he is an injured witness. The corroboration
sought by the prosecution with regard to alleged recoveries of
the weapons used in the crime is also not free from doubt.
Neither the station diary entry with regard to telephonic
intimation given by Vijay Singh at 9.05 am has been brought
on record nor has Vijay Singh been examined. Though
independent witnesses were available, the prosecution has
failed to examine them. We therefore find that this is a case
wherein the appellants are entitled for benefit of doubt.
In the result, we pass the following order:
30.
(i) The appeals are allowed;
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(ii) The judgment and order dated 30 April 2019 passed
by the High Court of Judicature at Allahabad in
Criminal Appeal Nos. 6961, 7260 and 6227 of 2006
th
and the judgment and order dated 28 September
2006 passed by the trial court in Sessions Trial Nos.
515 and 655 of 2002 are quashed and set aside; and
(iii) The appellants are acquitted of all the charges
charged with. Deepi, who has been enlarged on bail,
shall have his bail bonds cancelled, while the rest of
the accused are directed to be set at liberty forthwith,
if not required in any other case.
31. Pending application(s), if any, including application
for bail, shall stand disposed of in the above terms.
…..….......................J.
[B.R. GAVAI]
…….................................................J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
AUGUST 10, 2022.
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