Kannaiya vs. The State Of Madhya Pradesh

2025 INSC 1246
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 116 OF 2012


KANNAIYA ….APPELLANT(S)


VERSUS


STATE OF MADHYA
PRADESH ….RESPONDENT(S)

J U D G M E N T
Mehta, J.
1. Heard.
2. The accused-appellant herein has approached
th
this Court for assailing the judgment dated 9 April,
2009, passed by the Division Bench of the High Court
1
of Madhya Pradesh at Indore in Criminal Appeal No.
1487 of 1999 whereby, the High Court dismissed the
appeal preferred by the accused-appellant and three
Signature Not Verified
Digitally signed by
SONIA BHASIN
Date: 2025.10.17
15:44:02 IST
Reason:

1
Hereinafter, referred to as the ‘High Court’.
1


co-accused persons under Section 374(2) of the Code
2
of Criminal Procedure, 1973.
3. By way of the aforesaid appeal, the four convicts
including the accused-appellant herein had assailed
nd
the judgment and order dated 22 October, 1999
passed by the First Additional Sessions Judge,
3
Mhow, District Indore, Madhya Pradesh in Sessions
Case No. 524 of 1990, convicting the accused-
appellant and three others namely Govardhan, Raja
Ram and Bhima for the offences punishable under
Section 302 read with Section 34 of the Indian Penal
4
Code, 1860 and Section 302 of the IPC and
sentencing each of them to imprisonment for life and
fine of Rs.1,000/- with default stipulation.
4. It needs to be noted that only the accused-
appellant has approached this Court to assail the
judgment of the High Court, whereas, the remaining
three accused seem not to have availed this remedy.
Brief Facts: -
5. Succinctly stated, facts relevant and essential
for disposal of the appeal are noted hereinbelow.

2
For short, “CrPC”.
3
Hereinafter, referred to as the “trial Court”.
4
For short, “IPC”.
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CRIMINAL APPEAL NO(S). 116 OF 2012


6. Shri Gobariya (PW-2) lodged an FIR at the Police
th
Station, Manpur, alleging inter alia that on 28
September, 1990 an incident took place at about
09:00 pm in his village Chak. The accused-appellant
and nine others namely Babu Lal, Gyan Singh,
Bhima, Birjo, Raja Ram, Ram Swaroop, Govardhan,
Keshar Singh and Asha Ram were damaging the
Tapra (temporary hutment) of Jagya (PW-3). Ramesh,
son of the informant (PW-2) intervened and tried to
pacify the accused persons and requested them to
desist from damaging the hut whereupon, the
assailants diverted their attention towards Ramesh
and started assaulting him indiscriminately.
7. Govardhan was armed with a sword, Kannaiya
(accused-appellant) was armed with an axe, Keshar
Singh, Asha Ram, Bhima and Gyan Singh were
armed with sticks, whereas, Raja Ram, Ram
Swaroop, Birjo and Babu Lal were unarmed. These
unarmed assailants used their fists and kicks to beat
Ramesh whereas, the armed assailants caused
injuries to him using their respective weapons.
8. The informant (PW-2) further alleged that his
son, Ramesh, started bleeding profusely because of
the injuries caused to him by sharp weapons and
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CRIMINAL APPEAL NO(S). 116 OF 2012


sticks, and fell down unconscious. On hearing the
outcry, Madho Singh (PW-5), Ramchander (PW-4),
and other villagers came there and saw the incident.
The informant (PW-2) and Madho Singh (PW-5)
picked up Ramesh in injured condition. It was alleged
that the assailants were having a political rivalry with
the complainant party and that was the cause of the
assault.
9. The oral statement of the informant (PW-2)
th
recorded at the Police Station, Manpur, on 29
September, 1990 at about 8.00 am, was treated to be
a complaint and based thereupon, a formal FIR
bearing Case No. 212 of 1990 was registered for
offences punishable under Sections 307, 147 and
148 read with Section 149 of the IPC and Sections 25
and 27 of the Arms Act, 1959. However, it is
noteworthy that the said formal FIR was not proved
by the prosecution at the trial.
10. Ramesh was taken to the Primary Health
Centre, Manpur, for treatment, where he was
examined by Dr. M.S. Pathak (PW-17) who issued the
5
medico legal certificate (Exh.P-22). From there, he

5
For short, “MLC”.
4
CRIMINAL APPEAL NO(S). 116 OF 2012


was referred for better management and treatment to
th
the M.Y. Hospital, Indore where he expired on 5
October, 1990 while undergoing treatment. The Chief
Medical Officer of M.Y. Hospital sent an intimation
regarding death of Ramesh to the Sanyogitaganj
Police Station, Indore, whereupon offence punishable
under Section 302 of the IPC was added to the case.
11. The Investigating Officer (PW-13) conducted
inquest on the dead body of Ramesh and sent the
same for postmortem examination.
12. Dr. Ravindra Chaudhary (PW-18) conducted
postmortem examination upon the dead body of
Ramesh and issued the postmortem report (Exh. P-
23), taking note of the following injuries: -
1) A stitched wound on the right forehead
measuring 4 cms having five stitches. A dark
black colored scab was seen on the wound.
2) Right eye had gone black.
3) A grey colored diagonal bruised injury on
the right cheek, 3 cms below the eye,
measuring 3 cms x 1 cm.
4) A 3 cms long wound on the right side of the
face, near the chin, having three stitches and
was looking dark-grey colored.
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CRIMINAL APPEAL NO(S). 116 OF 2012


5) A dark-grey colored contused abrasion on
the left side of the face measuring 2 cms x 1
cm.
6) A dislocated fracture was found on the
lower jaw and the lower teeth of the front side
were broken with bleeding.
7) A stitched diagonal wound on the left
frontoparietal region of the head measuring 5
cms in length, having five stitches and was
having grey colored clotted blood.
8) There was a rod patterned contusion about
two and half cms away from the right middle
line on the stomach measuring 10 cms x 1 cm
and was of grey color.
9) A stitched wound on the left ankle
measuring 8 cms in length having 7 stitches.
The wound was black-grey colored.
10) A stitched wound on the left thigh towards
back side measuring 5 cms in length and was
having 4 stitches on it. Dark grey colored
ecchymosis was present around the wound.
13. The Investigating Officer (PW-13) proceeded to
arrest all ten assailants named in the FIR, and, sharp
weapons used in the incident were seized pursuant
6
CRIMINAL APPEAL NO(S). 116 OF 2012


to the disclosures under Section 27 of the Indian
Evidence Act, 1872 made by the accused-appellant,
Babu Lal, Gyan Singh, Bhima, Birjo, Raja Ram, Ram
Swaroop, Govardhan, Keshar Singh, and Asha Ram.
The seized weapons, i.e. , sword and axe were
forwarded to the concerned medical officer for
opinion regarding the possibility of the injuries being
caused by these two weapons. Dr. M.S. Pathak (PW-
17) examined the weapons and gave his opinion (Exh.
P-18). The seized articles were forwarded to the
6
Forensic Science Laboratory from where an analysis
report (Exh. P-19) was received. After concluding
investigation, chargesheet was filed against the ten
accused persons named in the FIR. Since the offence
punishable under Section 302 of the IPC was
exclusively sessions triable, the case was committed
and transferred to the Court of First Additional
Sessions Judge, Mhow, District Indore, Madhya
Pradesh for trial.
14. The trial Court framed charges against all the
ten accused for the offences set out in the
chargesheet. The accused persons pleaded not guilty

6
For Short “FSL”.
7
CRIMINAL APPEAL NO(S). 116 OF 2012


and claimed trial. The prosecution examined as many
as 18 witnesses and exhibited 24 documents to prove
its case. The trial Court questioned the accused
persons under Section 313 of the CrPC and
confronted them with the circumstances as
appearing in the prosecution’s case. The accused
denied the same and claimed to be innocent.
However, no evidence was led in defence. At the
conclusion of trial, the trial Court proceeded to acquit
six accused persons, namely Babu Lal, Gyan Singh,
Birjo, Ram Swaroop, Keshar Singh, and Asha Ram,
and at the same time, convicted the accused-
appellant alongside Govardhan, Raja Ram and
Bhima for the offences punishable under Section 302
read with Section 34 of the IPC and Section 302 of
7
the IPC and sentenced them as above vide Judgment
nd
and order dated 22 October, 1999.
15. Being aggrieved, all four convicted accused
persons, preferred an appeal before the High Court
th
which stands rejected by the judgment dated 9
April, 2009, which is subject matter of challenge in

7
Supra, para 3.
8
CRIMINAL APPEAL NO(S). 116 OF 2012


this appeal by special leave at the instance of the
appellant-Kannaiya.
Submissions on behalf of the accused-appellant: -
16. Learned counsel representing the accused-
appellant urged that the entire prosecution case is
false and fabricated. The father of deceased Ramesh
being the informant of the present case, namely,
Gobariya (PW-2) did not support the prosecution case
and was declared hostile.
17. Jagya (PW-3), in whose hut, the incident
purportedly started also did not support the
prosecution case and was declared hostile. Puniya
(PW-12), son of Jagya (PW-3) changed the genesis as
well as place of the occurrence and alleged that the
fight took place in the field of Gopya where he
allegedly saw accused-appellant alongside
Govardhan, Raja Ram and Bhima assaulting
Ramesh. Learned counsel pointed out that this
witness (PW-12) did not name anyone else in the
assault made on Ramesh but rather alleged that the
other accused persons came to the place of incident
later, which is totally contrary to what was stated in
the FIR.
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CRIMINAL APPEAL NO(S). 116 OF 2012


18. Learned counsel pointed out that Puniya (PW-
12) did not mention about the presence of Madho
Singh (PW-5) at the spot when the incident was
taking place. Rather, he alleged that he conveyed
about the incident to Gobariya (PW-2), father of
Ramesh and, thereafter, Madho Singh (PW-5) went to
lift Ramesh. He further urged that Madho Singh (PW-
5) in his deposition, did not acknowledge the
presence of Puniya (PW-12) at the time of the
incident, thus, both the witnesses contradict each
other on the vital aspect of their presence at the crime
scene and hence, their evidence is unworthy of
credence. Not only this, Madho Singh (PW-5), in his
deposition, gave a totally contrary version alleging
that the accused persons had come to the house of
Narsingh which is located nearby to his house. At
that time, Ramesh was present in his house. Madho
Singh (PW-5) and Ramesh tried to convince Bhima
not to start a fight whereupon the accused persons
namely Kannaiya (accused-appellant), Babu Lal,
Gyan Singh, Bhima, Birjo, Raja Ram, Ram Swaroop,
Govardhan, Keshar Singh and Asha Ram started
assaulting Ramesh who received multiple injuries on
his legs, head, etc. However, in the later part of the
10
CRIMINAL APPEAL NO(S). 116 OF 2012


deposition, the witness (PW-5) alleged that the entire
fight had taken place in the agricultural field of
Bholiya.
19. It was submitted that there is no reference to
any field of Bholiya in the site inspection plan (Exh.
P-6). Thus, there is grave contradiction in the
versions of Madho Singh (PW-5) and Puniya (PW-12)
regarding the place as well as the genesis of the
incident. Furthermore, the version of Madho Singh
(PW-5) when he claimed that Ramesh was present in
his house before the incident started, is in stark
contradiction to the sequence set out in the FIR and
in the evidence of Puniya (PW-12).
20. Learned counsel also urged that Madho Singh
(PW-5), admitted in cross-examination that when
Ramesh was being assaulted, nobody other than the
witness (PW-5) himself was present at the spot. This
admission of the witness (PW-5) completely
demolishes the claim of Puniya (PW-12) regarding he
having witnessed the incident. Not only this, other
than a bald reference to political rivalry, there is no
reference in the evidence of any of the prosecution
witnesses as to the reason for which the accused
persons were either demolishing the hut of Jagya
11
CRIMINAL APPEAL NO(S). 116 OF 2012


(PW-3) or were indulging in some offensive activity in
the field of Gopya/Bholiya which compelled Ramesh
to interfere. Thus, there is a complete vacuum in the
prosecution story regarding the genesis of the
occurrence.
21. Since the witnesses have failed to point out the
reason behind the incident, and as there are grave
discrepancies in the statements of the two so called
eyewitnesses, i.e., Madho Singh (PW-5) and Puniya
(PW-12), it would be totally unsafe to affirm the
conviction of the accused-appellant on the basis of
such flimsy and contradictory evidence.
22. It was further argued that six other accused
persons against whom also the similar evidence
existed on record, namely, Babu Lal, Gyan Singh,
Birjo, Ram Swaroop, Keshar Singh and Asha Ram
stand acquitted by the trial Court and thus, the
accused-appellant is also entitled to acquittal on
parity.
Submissions on behalf of the respondent-State: -
23. Per contra , learned counsel representing the
respondent-State, vehemently and fervently opposed
the submissions advanced by the appellant’s
counsel. He urged that the case of the prosecution is
12
CRIMINAL APPEAL NO(S). 116 OF 2012


based on unimpeachable testimony of the
independent eye witnesses Madho Singh (PW-5) and
Puniya (PW-12), who had no reason or motive to
falsely implicate the accused-appellant in this case.
Both have made truthful deposition at the trial and
could not be shaken from their stance despite
extensive cross-examination. As per their testimony,
the accused-appellant as well as the three co-
convicts were armed with sharp weapons and large
number of sharp weapon injuries were found on the
body of deceased Ramesh as per the medical
evidence. Thus, evidence of eyewitnesses is fully
corroborated by medical evidence, further
strengthening the case of the prosecution. He urged
that the name of Madho Singh (PW-5) is mentioned
in the FIR as an eye witness and the mere omission
by the first informant, Gobariya (PW-2), to mention
about the presence of Puniya (PW-12) as an eye
witness in the FIR, would not discredit the
evidentiary worth of the eye witness because the
incident took place when the accused persons were
trying to dismantle and destroy the hut of Jagya (PW-
3), father of Puniya (PW-12). Hence, the presence of
Puniya (PW-12) at the hut of his father was natural.
13
CRIMINAL APPEAL NO(S). 116 OF 2012


24. It was further argued that the trial Court and
the High Court have undertaken extensive
appreciation and re-appreciation of evidence to
conclude that the case of the accused-appellant and
the co-convicts was distinguishable from that of the
acquitted accused persons who were either carrying
blunt weapons or were unarmed. It was contended
that the judgment under challenge does not require
interference by this Court.
Findings and Conclusion: -
25. We have given our thoughtful consideration to
the submissions advanced at bar and have gone
through the impugned judgment. We have
threadbare re-appreciated the evidence available on
record.
26. The learned counsel for the accused-appellant
did not dispute the fact that the death of Ramesh was
homicidal, preceded by large number of sharp and
blunt weapon injuries, which fact has been proved by
Dr. M.S. Pathak (PW-17), who issued the MLC (Exh.
P-22) and by Dr. Ravindra Chaudhary (PW-18), who
issued the post mortem report (Exh. P-23).
27. At the outset, we may take note of the fact that
the factum of the complainant party and the accused
14
CRIMINAL APPEAL NO(S). 116 OF 2012


party belonging to rival political factions is not in
dispute. It is in this background that we will have to
test the veracity of evidence of the prosecution
witnesses with greater care and circumspection.
28. Vadivelu Thevar v. State of
This Court in
8
Madras , laid down certain guiding principles
classifying witnesses into three distinct categories
and elucidated the approach to be adopted in
assessing their credibility, which are reproduced
hereinbelow: -
“ 11 .…………The matter thus must depend upon
the circumstances of each case and the quality
of the evidence of the single witness whose
testimony has to be either accepted or rejected.
If such a testimony is found by the court to be
entirely reliable, there is no legal impediment to
the conviction of the accused person on such
proof. Even as the guilt of an accused person
may be proved by the testimony of a single
witness, the innocence of an accused person
may be established on the testimony of a
single witness, even though a considerable
number of witnesses may be forthcoming to
testify to the truth of the case for the
prosecution. Hence, in our opinion, it is a
sound and well-established 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:

8
AIR 1957 SC 614.
15
CRIMINAL APPEAL NO(S). 116 OF 2012

basis of the oral statement of Gobariya (PW-2) being
the father of deceased Ramesh. However, he did not
support the prosecution case and was declared
hostile. In the FIR, there is no reference to the
presence of Puniya (PW-12), the so-called eye witness
at the crime scene. The prosecution came out with a
pertinent case in the FIR that the incident started
with the ten accused persons named in the FIR trying
to destroy the hut of Jagya (PW-3).
30. Jagya himself was examined by the prosecution
as PW-3 and in his evidence, he alleged that the
16
CRIMINAL APPEAL NO(S). 116 OF 2012


incident took place at about 11:00 pm. His Tapra
(temporary hutment) was being damaged. He heard
the voice of Bhima who was hurling abuses. Ignoring
the commotion, he continued to sleep inside the hut.
He failed to identify any of the assailants during his
deposition and was declared hostile.
31. What is significant to mention here is that the
witness (PW-3) did not mention about the presence of
his son, Puniya (PW-12), at the place of the incident.
32. Puniya (PW-12) alleged that he was at his house
at about 9:00 pm when he heard the sounds of
commotion and thus, he ran towards the field of
Gopya where the incident was happening. He claims
to have seen Govardhan armed with a sword,
Kannaiya (accused-appellant) armed with an axe,
Bhima armed with a Falia and Raja Ram armed with
a (spade), assaulting Ramesh. On seeing the
Farsa
assault, he ran back and told Gobariya (PW-2), father
of Ramesh, about the assault. Thereafter, Madho
Singh (PW-5) came and lifted Ramesh who was later
taken to the hospital. After the initial assault had
happened, the remaining accused persons also came
there. On seeing the condition of Ramesh, the
17
CRIMINAL APPEAL NO(S). 116 OF 2012


accused persons commented that he had died and
then went away.
33. In cross-examination, the witness (PW-12)
stated that his house was at a distance of about one
furlong from the house of Ramesh. There was a gap
of about 100 meters between his house and the field
of Gopya where the incident took place. He feigned
ignorance regarding the political leanings of the
accused persons and claimed that he did not know
which political party they belonged to. He also feigned
ignorance as to the reason due to which the incident
happened. He stated that when he saw Ramesh being
attacked, he ran towards him.
34. The witness (PW-12) further stated in his cross-
examination that after the accused persons had left,
he reached the place of incident after a gap of about
one hour, whereupon he found Ramesh lying at the
spot. The witness (PW-12) admitted that he did not
pick up Ramesh, and that it was Madho Singh (PW-
5) who picked up and carried Ramesh to the hospital.
35. The witness (PW-12) emphatically stated that
the incident took place in the field of Gopya, and that
he alone had gone to the spot, unaccompanied by
anyone else. As soon as he reached the place of
18
CRIMINAL APPEAL NO(S). 116 OF 2012


incident, a hue and cry broke out and the assault
started and then he (PW-12) immediately rushed
back to his home.
36. It can clearly be elicited from the evidence of
Puniya (PW-12), that the incident did not take place
at the hut of Jagya (PW-3) as is alleged in the FIR and
rather happened in the field of Gopya. This is a very
significant contradiction which has a direct bearing
on the very foundation of the prosecution case,
because the genesis of the occurrence and so also the
place of the incident as set out in the FIR have both
been materially altered in the version of Puniya (PW-
12), whose testimony was heavily relied upon by the
trial Court as well as the High Court in arriving at the
finding of guilt against the accused persons. The
witness (PW-12) did not acknowledge the presence of
Madho Singh (PW-5) at the place of incident when the
actual assault was taking place. Rather, he
emphatically stated in response to the suggestion
given in the cross-examination that only he (PW-12)
had reached at the place of incident after hearing the
hue and cry and no one else was present there.
37. Ramesh was a cousin brother of Puniya (PW-
12). The conduct of Puniya (PW-12) in failing to make
19
CRIMINAL APPEAL NO(S). 116 OF 2012


any effort to protect Ramesh from the assault being
made by the assailants and the rank apathy shown
by him in not assisting Ramesh after he had been
belaboured and had fallen down, creates a grave
doubt regarding the witness’s (PW-12) presence at
the crime scene and his claim of having seen the
accused persons assaulting Ramesh. The
discrepancy in the FIR and the version of the witness
(PW-12) regarding the number of the accused
persons who were armed with sharp weapons is also
crucial. The omission of the name of Puniya (PW-12)
in the FIR lodged by Gobariya (PW-2) is also a fact
which impinges upon the bona fides of the
prosecution story which claims that Puniya (PW-12)
had also seen the accused persons assaulting
Ramesh.
38. The incident took place in a small village where
everyone is known to each other. Puniya (PW-12) was
closely related to Ramesh. Thus, had he actually seen
the incident, this fact was bound to crop up in the
discussion among the family members and in that
event, the name of Puniya (PW-12) as an eye witness
to the alleged assault would definitely have reflected
in the FIR. It is true that the reason for the said
20
CRIMINAL APPEAL NO(S). 116 OF 2012


material omission could not be elicited because the
first informant, Gobariya (PW-2), turned hostile.
However, the fact that the name of a family member
who claims to have seen the assault, was not
mentioned in the FIR is undoubtedly a very vital
omission which would have a bearing on the veracity
of the prosecution case.
39. We may hasten to add here that Puniya (PW-12)
is not the scribe of the FIR, but the omission of his
name in the FIR gains significance considering the
fact that the incident started with the accused
persons trying to damage the hut of Jagya (PW-3),
father of Puniya (PW-12). In this background, the
omission of his name in the FIR is a material one.
40. Thus, we have no hesitation in concluding that
Puniya (PW-12), falls within the category of a “wholly
unreliable witness”.
41. Now, we shall proceed to discuss the evidence of
Madho Singh (PW-5), the other eye witness of the
prosecution, whose testimony has been believed by
the trial Court as well as the High Court.
42. The witness (PW-5) stated that it was night time,
and he was at his house. The accused-appellant and
nine co-accused persons namely Babu Lal, Gyan
21
CRIMINAL APPEAL NO(S). 116 OF 2012


Singh, Bhima, Birjo, Raja Ram, Ram Swaroop,
Govardhan, Keshar Singh and Asha Ram had come
to the house of Narsingh, which the witness (PW-5)
claims to be adjacent to his house. However, it may
be noted that the site inspection plan (Exh. P-6) does
not record the house of Narsingh near the house of
Madho Singh (PW-5). He alleged that Bhima was
having a Faliya , Govardhan had a sword, Kannaiya
(accused-appellant) was having an axe, Gyan Singh
and all others were having sticks in their hands.
Ramesh had come to his house and they were
smoking Bidis . The witness (PW-5) and Ramesh tried
to placate the accused persons and requested them
to refrain from violence but, the accused Bhima along
with the other co-accused persons launched an
assault on Ramesh.
43. The assailants belaboured Ramesh and then
ran away. The witness (PW-5) claimed that while
Ramesh was being beaten by the assailants, he kept
on standing at a distance of about 2 steps. He feigned
ignorance as to the reason why the assailants had
caused injuries to Ramesh. The next day, police came
to the spot and inspected the site and collected soil
and other materials from the place of incident.
22
CRIMINAL APPEAL NO(S). 116 OF 2012


44. The witness (PW-5) stated in cross-examination
that his house and the house of Ramesh are at a
significant distance from each other. He further
stated that the houses of the accused persons were
also located quite far from his residence. Ramesh had
come to his house to smoke a ‘ bidi’, and while they
were sitting inside, the accused persons were hurling
abuses from the pathway passing in front of his
house. When Ramesh went to stop the accused
persons, they launched an assault on him. The
accused persons neither caused injury nor did they
try to damage any hut belonging the witness (PW-5).
When Ramesh was being assaulted, no one other
than the witness (PW-5) was present at the spot. His
father was not present there. He was alone in his hut
and his wife had gone to her house.
45. In reply to a pertinent question put to the
witness (PW-5), in cross-examination, he admitted
that while the incident continued and a hue and cry
was being raised, no one from the village came to the
place of incident. He did not raise his voice to call
anyone for help. He admitted that he was associated
with the Congress party whereas, the accused
persons were affiliated to the Bhartiya Janta Party.
23
CRIMINAL APPEAL NO(S). 116 OF 2012


46. He also admitted that there was a feud going on
between the accused persons and the complainant
party, because of party politics and they were not on
speaking terms.
47.
Following important facts can be discerned from
the evidence of witness: -
i. PW-5 totally denied the fact that the accused
persons were damaging some hut when the
incident started. This version is totally contrary
to the story set out in the FIR.
ii. The witness (PW-5) emphatically denied the
presence of anyone else at the crime scene while
the incident was happening. This admission
creates a doubt on the presence of Puniya (PW-
12) at the crime scene thereby damaging the
case of prosecution.
iii. The witness (PW-5) admitted political rivalry
between the accused persons and the
complainant party.
iv. The witness (PW-5) claimed that Ramesh had
randomly come to his house for smoking Bidi .
v. The witness (PW-5) did not allege that the
incident took place in the field of Gopya.
24
CRIMINAL APPEAL NO(S). 116 OF 2012


vi. The witness (PW-5) claims that he was standing
at a distance of two steps while Ramesh was
being indiscriminately assaulted by no less than
ten assailants armed with sharp and blunt
weapons. In spite thereof, PW-5 escaped
unscathed without receiving even a single injury
which creates a grave doubt on his very
presence at the crime scene at the time of the
incident.
48. Clearly thus, the very substratum of the
prosecution case regarding the genesis of the incident
and the place of occurrence has been materially
altered in the testimony of the witness (PW-5).
49. Madho Singh (PW-5) was an attesting witness to
the site inspection plan (Exh. P-6) wherein, the fact
regarding the incident having taken place in the field
of Gopya is recorded. His version that the incident
started when the assailants started acting
aggressively in front of the house of Narsingh is
contradicted by the fact that there is no reference to
any such house in the site inspection plan (Exh. P-6)
to which Madho Singh (PW-5) himself was an
attesting witness.
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CRIMINAL APPEAL NO(S). 116 OF 2012


50. It may be noted here that the name of the father
of the witness (PW-5) is also Narsingh. However, the
witness (PW-5) did not state that the accused persons
came to his house and started acting aggressively.
51.
The witness Madho Singh (PW-5) also stated
that there is a field of Bholiya in front of his house.
However, the site inspection plan (Exh. P-6) to which
he was an attesting witness, does not mention about
the existence of field of Bholiya within the vicinity of
the house of Madho Singh (PW-5). On the contrary,
the site inspection plan records (Exh. P-6) that the
incident took place in the field of Gopya.
52. In stark contravention to the version as deposed
by the witness (PW-5), the FIR records the fact that
the incident started when the accused persons were
trying to destroy the hut of Jagya (PW-3) and Ramesh
tried to intervene on which, the accused persons beat
him up. The theory put forth by the witness (PW-5)
that Ramesh was casually sitting at his house
smoking when the incident took place is
Bidi
materially different from the initial version of the
prosecution as set out in the FIR.
53. Therefore, the entire case of the prosecution
which is based on the testimony of Madho Singh (PW-
26
CRIMINAL APPEAL NO(S). 116 OF 2012


5) and Puniya (PW-12) becomes doubtful. Both these
witnesses have given highly contradictory versions
regarding the manner in which the incident started
(genesis of the occurrence) and the place where
Ramesh was assaulted. Each denies the presence of
the other at the crime scene in their depositions.
54. At the cost of repetition, we may reiterate that
contrary to the version of Madho Singh (PW-5) that
he alone lifted Ramesh and took him to the house,
the FIR records that the first informant, Gobariya
(PW-2) and, Madho Singh (PW-5), together picked up
Ramesh and brought him home.
55. Six accused persons who were named by Madho
Singh (PW-5) in his deposition as having jointly
assaulted Ramesh along with the convicted co-
accused were acquitted by the trial Court, and their
acquittal was never challenged any further. Thus, we
find the testimony of Madho Singh (PW-5) to be
doubtful and he falls within the category of a
To act upon his
“partially reliable witness”.
testimony, the prosecution would be required to
provide independent and credible corroborative
evidence. However, it can be clearly seen that the
prosecution has failed to provide any corroborative
27
CRIMINAL APPEAL NO(S). 116 OF 2012


evidence to render the testimony of (PW-5)
trustworthy or reliable.
56. The FIR was lodged on the day next to the
incident wherein, only two accused namely
Govardhan and accused-appellant were alleged to be
armed with sharp weapons. Since the fact regarding
Madho Singh (PW-5) having assisted in the process
of lifting Ramesh and taking him to his house in an
injured condition is mentioned in the FIR, it can
safely be presumed that the witness (PW-5) must
have told the entire details of the incident to the
informant (PW-2). In such event, the informant (PW-
2) while narrating the incident to the police, would
not have missed out on the fact that four assailants
namely Bhima, Govardhan, Raja Ram and accused-
appellant were holding sharp weapons and used the
same to assault Ramesh.
57. The site inspection plan (Exh. P-6) does not
record availability of any source of light at the crime
scene and hence, it is hard to believe that the alleged
eyewitnesses (PW-5 and PW-12) could have
accurately identified the particular weapon being
used by the accused to assault Ramesh. Both the
alleged eyewitnesses (PW-5 and PW-12) have tried to
28
CRIMINAL APPEAL NO(S). 116 OF 2012


supress the genesis of occurrence and also changed
the crime scene and hence, their presence at the spot
becomes doubtful.
58. In this regard, reference may be made to the
Pankaj v. State of
decision of this Court in
9
Rajasthan , wherein it was emphasised that when
the genesis and manner of the incident itself are
doubtful, conviction cannot be sustained. The Court
held as under: -
“ 25. It is a well-settled principle of law that
when the genesis and the manner of the
incident is doubtful, the accused cannot be
convicted. Inasmuch as the prosecution has
failed to establish the circumstances in which
the appellant was alleged to have fired at the
deceased, the entire story deserves to be
rejected. When the evidence produced by the
prosecution has neither quality nor
credibility, it would be unsafe to rest
conviction upon such evidence. After having
considered the matter thoughtfully, we find
that the evidence on record in the case is not
sufficient to bring home the guilt of the
appellant. In such circumstances, the
appellant is entitled to the benefit of doubt.”

(Emphasis Supplied)

59. Similarly, in Bhagwan Sahai and Another v.
10
State of Rajasthan , this Court reiterated that

9
(2016) 16 SCC 192.
10
AIR 2016 SC 2714.
29
CRIMINAL APPEAL NO(S). 116 OF 2012


once the prosecution is found to have suppressed the
origin and genesis of the occurrence, the only proper
course is to grant the accused the benefit of doubt.
The Court observed as follows: -
“8. The aforesaid view of the High Court is devoid
of legal merits . Once the Court came to a
finding that the prosecution has suppressed
the genesis and origin of the occurrence and
also failed to explain the injuries on the
person of the accused including death of
father of the appellants, the only possible and
probable course left open was to grant benefit
of doubt to the appellants. The appellants can
legitimately claim right to use force once
they saw their parents being assaulted and
when actually it has been shown that due to
such assault and injury their father
subsequently died. In the given facts, adverse
inference must be drawn against the
prosecution for not offering any explanation
much less a plausible one . Drawing of such
adverse inference is given a go-by in the case of
free fight mainly because the occurrence in that
case may take place at different spots and in
such a manner that a witness may not
reasonably be expected to see and therefore
explain the injuries sustained by the defence
party. This is not the factual situation in the
present case.”
[Emphasis Supplied]

60. In the present case, the prosecution has failed
to establish the genesis of the occurrence and the
place of incident with any degree of certainty. The FIR
speaks of the demolition of a hut by the accused
30
CRIMINAL APPEAL NO(S). 116 OF 2012


persons near the residence of Jagya (PW-3). However,
Madho Singh (PW-5) shifted the crime scene to
nearby his own house and denied any demolition.
Puniya (PW-12) claimed that the assault occurred in
the field of Gopya. Both of these witnesses (PW-5 and
PW-12) have contradicted each other as well as the
documentary evidence, viz. the site inspection plan
(Exh. P-6). They do not acknowledge each other’s
presence at the crime scene. Such conflicting
versions cannot co-exist within a credible narrative.
The suppression of the genesis of occurrence and the
shifting of the place of incident demolish the very
substratum of the prosecution case.
61. In this background, we are of the firm opinion
that it would not be safe to uphold the conviction of
the accused-appellant and the three co-accused
namely, Govardhan, Raja Ram and Bhima, as the
testimony of the so-called eyewitnesses Madho Singh
(PW-5) and Puniya (PW-12) is full of contradictions
and inherent improbabilities.
62. Since the entire case of the prosecution has
fallen, all four convicted accused persons are entitled
to be extended the benefit of doubt. Hence, we are
inclined to extend the benefit of this judgment, in
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CRIMINAL APPEAL NO(S). 116 OF 2012


exercise of our powers under Article 142 of the
Constitution of India, 1950 to the three co-accused,
namely, Govardhan, Raja Ram, and Bhima, who have
not challenged their conviction before this Court.
63.
As a result of the above discussion, we feel
persuaded to hold that the conviction of the appellant
and the three co-accused, namely, Govardhan, Raja
Ram and Bhima as recorded by the trial Court and
affirmed by the High Court does not stand to
scrutiny. Resultantly, the impugned judgments are
set aside.
64. Accordingly, the appellant and the said co-
accused are acquitted of the charges. They shall be
released from custody forthwith, if not wanted in any
other case.
65. The appeal is accordingly, allowed.
66. Pending application(s), if any, shall stand
disposed of.

….……………………J.
(SANJAY KAROL)

...…………………….J.
(SANDEEP MEHTA)
NEW DELHI;
OCTOBER 17, 2025.

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