Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 727 of 2015
Balwan Singh …Appellant
Versus
The State of Chhattisgarh and Anr. …Respondent
WITH
CRIMINAL APPEAL NO. 1197 of 2016
Latel Ram & Anr. …Appellants
Versus
State of Chhattisgarh …Respondent
J U D G M E N T
MOHAN M. SHANTANAGOUDAR, J.
Signature Not Verified
Digitally signed by
VISHAL ANAND
Date: 2019.08.06
16:40:16 IST
Reason:
These appeals arise out of the judgment dated 10.02.2015
of the High Court of Chhattisgarh at Bilaspur in Criminal Appeal
1
No. 178 of 2011 and Criminal Appeal No. 179 of 2011 confirming
the judgment and order of conviction dated 20.01.2011 passed
by the Additional Sessions Judge, Fast Track Court, Pendra
Road, District Bilaspur in S.T. No. 57 of 2010 convicting the
appellants and other accused for offences punishable under
Sections 148 and 302/149 of the Indian Penal Code (for short,
‘IPC’) and sentencing them accordingly.
2. The case of the prosecution is that on account of previous
enmity with Pitambar Singh (since deceased), the Accused No. 1 –
Balwan Singh (appellant in Criminal Appeal No. 727 of 2015), on
nd
22 January, 2007, at evening time, was talking with the other
accused regarding preparation to kill Pitambar Singh. Their
conversation was heard by Sunderlal Rathore @ Sunder Singh
Rathore (PW11) and Shatrughan Singh (PW12), who were
passing through the same place. Further, it was the case of the
prosecution that all the accused, armed with deadly weapons,
went towards the field of one Bhagwat Seth and committed the
murder of Pitambar Singh. PW9 and PW16, who were near the
scene of the occurrence, rushed to the spot after hearing the cries
of the injured, and saw all the accused assaulting the deceased
2
with lathis and tabbal (an agriculture implement made up of
iron). It is stated by PW9 and PW16 that the tabbal was held by
the Accused No. 4, namely, Ashok Singh. The injured died
instantaneously and the accused fled away.
The dead body was seen by one Drupad Singh (PW1) at 7
o’clock the next morning, who in turn informed Nar Singh Rajput
(PW17), the informant. Thereafter, Drupad Singh and Nar Singh
Rajput together went to the place where the dead body was lying,
and saw that Pitambar Singh was murdered. The deceased was
the uncle of the informant.
3. The Trial Court as well as the First Appellate Court,
believing the testimonies of PW9 and PW16 who were the eye
witnesses of the incident, and the testimonies of PW11 and PW
12 who deposed about the conspiracy to commit the murder of
the deceased, convicted the accused for the offences punishable
under Sections 148 and 302/149 IPC. It is pertinent to state that
although charge was also framed under Section 120B IPC, the
accused were acquitted in respect of the said offence.
4. Shri Sanjay Hegde, learned senior counsel appearing for the
appellant Balwan Singh, and Shri Rajeev Kumar Bansal, learned
3
counsel appearing for appellants Latel Ram and Santu @
Santram, drew the attention of the Court to the relevant portions
of the depositions of the important witnesses, and submitted that
the prosecution had planted the eye witnesses, namely, PW9
and PW16 for the purpose of prosecuting the accused, though
these witnesses were not present near the scene of occurrence.
They contended that the statements of these alleged eye
witnesses were recorded about eight days after the incident in
question, though they were very much present in the village or
though the police knew that these witnesses were the alleged eye
witnesses of the incident. According to the learned counsel for
the appellants, the evidence of PW11 and PW12 is also vague,
cryptic, and unreliable inasmuch as the courts below have
acquitted the accused for the offence under Section 120B IPC.
5. Per contra, the learned counsel appearing for the State
argued in support of the judgments of the courts below.
6. We find from the records that though the incident took
nd
place on 22 January, 2007, the statements of the alleged eye
witnesses, namely, PW9 and PW16, were recorded after eight
days of the incident. The prosecution has tried to explain the
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delay in recording the statement of the eye witnesses by
contending that they were scared of the accused, particularly
Balwan Singh who was the village Sarpanch (Panchayat
Chairman); the accused Balwan Singh was stated to be powerful
and influential; only after some of the accused were arrested,
these witnesses came to the village and gave their statements to
the police during the course of investigation; till such time, the
eye witnesses PW9 and PW16 did not come to the village at all
and were staying in different villages in their relatives’ houses.
We are conscious of the fact that mere delay in recording of
the statement of the eye witness by the investigating officer
cannot ipso facto raise suspicion in the mind of the Court about
the veracity of the prosecution case, more particularly, about the
veracity of the eye witnesses. In the normal course, this Court
would have accepted the explanation offered by the witnesses or
the prosecution for not recording the statements at an earlier
point in time, but the facts in this case are different inasmuch as
it is admitted by the prosecution witnesses, more particularly by
the investigating officer, that PW9 was very much present in the
village. PW2 and the investigating officer, during the course of
5
the investigation, had seen PW9, being the Patel (Patwari) of the
village. PW2 had admitted in the crossexamination that he had
seen PW9 at the place of the incident when the police had come
to the village after the registration of the First Information Report.
PW2 is none else but the younger brother of PW9, and they
were residing separately in one house. Thus, the evidence of PW
2 cannot be disbelieved insofar as it relates to the presence of
PW9 in the village, and on the spot when the police had started
investigation. Furthermore, the investigating officer also testified
that immediately after reaching the village Semaria, where the
incident took place, he had called the Patel (PW9). He
categorically admitted that he called PW9 to the place of the
occurrence and that he (PW9) was present during the course of
the investigation. PW9, being the Patel of the village, could not
have kept the fact about the incident or about the complicity of
the accused from the investigating officer at the first instance,
had he really been an eye witness to the incident. The
investigating officer had proceeded to depose that, on his own, he
had recorded the statement of PW9 on 30.01.2007, which means
that PW9 had not informed the investigating officer that he was
an eye witness to the incident. The investigating officer, on his
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own accord, had recorded the statement of PW9. It is thus clear
that the investigating officer knew very well, on the first day itself,
that PW9 was an eye witness. There was no reason as to why the
investigating officer did not record the statement of the socalled
eye witness at the earliest point of time, more particularly when,
at that point in time, the investigating officer did not have any
clue about the murderers.
PW9 and PW16 are close friends, and on the date of the
incident, had gone together to see Panthi dance in the village
during night, and at that point in time, both of them heard the
cries of the deceased and rushed to the spot and saw the accused
committing the murder of the deceased. It is also the evidence of
PW9 and PW16 that the accused saw these witnesses at the
time of the occurrence of the murder inasmuch as these
witnesses told all the accused not to beat/assault the deceased.
On hearing such utterance of these witnesses, the accused
allegedly tried to chase them, but they fled away from the scene.
If this were true, then PW9, who was present at the spot during
the course of the investigation on the first day itself, would not
have left the police uninformed about the presence of PW16 also.
7
It is also relevant to note that PW16 is from a different village,
namely, Kusumkonda, which is stated to be 75 K.M. away from
the place of incident, and on the date of the incident he had come
to the village Semaria where the incident had taken place. The
place of work of PW16 is Takatpur, which is stated to be 70 K.M.
away from Semaria village. It is curious to note that PW9 and
PW16 met on the date of incident after a gap of about 15 years,
and thereafter went to watch the dance performance. In our
considered opinion, the story, as put forth by the prosecution,
that PW9 did not tell the investigating officer about the presence
of PW16, is not believable. According to PW16, he came to the
village Semaria after eight days, i.e. after the arrest of a few
accused, and gave the statement to the police.
7. As per the case of the prosecution, Balwan Singh is a
powerful and influential person and the eye witnesses were
scared of him. It is relevant to note that even at the time of the
recording of the statements of PW9 and PW16 after eight days
of the incident, Balwan Singh was not arrested. He was arrested
after about two months from the recording of the statements of
these witnesses. It is relevant to note that these witnesses were
8
not scared of other accused who were arrested. Be that as it may,
we find that the whole story of the prosecution about the
presence of PW9 and PW16 on the spot at the time of incident
appears to be artificial and concocted.
8. The prosecution also relies upon the evidence relating to
recovery of sticks and tabbal which were bloodstained. Such
evidence may not be helpful to the prosecution in this case
inasmuch as there is no evidence to show that these articles were
stained with human blood, and more particularly with blood of
the same blood group as that of the deceased. As per the
Forensic Science Laboratory Report, the blood stains were
disintegrated, and their origin could not be determined.
In Sattatiya v. State of Maharashtra , (2008) 3 SCC 210 ,
one of the crucial factors that had led this Court to reverse the
conviction was that the bloodstains on the items seized in the
recovery could not be linked with the blood of the deceased. This
factor was treated as a serious lacuna in the case of the
prosecution.
Similarly, in Shantabai and Ors. v. State of
, (2008) 16 SCC 354 , the bloodstains on some of
Maharashtra
9
the clothes seized from the accused in recovery belonged to a
different blood group from that of the blood group of bloodstains
found on the clothes of the deceased and on the sample of soil,
axe, stones etc. which were taken from the spot by the
investigating officer. As a result of this mismatch, it was held that
this circumstance was not proved against the accused.
It is also important to note the following observations made
by a Constitution Bench of this Court in Raghav Prapanna
, :
Tripathi & Ors. v. State of U.P. AIR (1963) SC 74
“21. In this connection, reference may also be
made to circumstances 9 and 10, relating to the
recovery of the bloodstained earth from the house.
The bloodstained earth has not been proved to be
stained with human blood. Again, we are of opinion
that it would be farfetched to conclude from the
mere presence of bloodstained earth that earth was
stained with human blood and that the human blood
was of Kamla and Madhusudhan. These
circumstances have, therefore, no evidentiary value.”
(Emphasis supplied)
Therefore, the fivejudge bench had ruled that in that case
the prosecution needed to prove that the bloodstains found on
the earth or the weapons were of a human origin and were of the
same blood group as that of the deceased.
10
9. We are also conscious of the fact that, at times, it may be
very difficult for the serologist to detect the origin of the blood
due to the disintegration of the serum, or insufficiency of blood
stains, or haematological changes etc. In such situations, the
Court, using its judicious mind, may deny the benefit of doubt to
the accused, depending on the facts and circumstances of each
case, if other evidence of the prosecution is credible and if
reasonable doubt does not arise in the mind of the Court about
the investigation.
Thus, in the case of R. Shaji v. State of Kerala , (2013) 14
SCC 266 , this Court had observed:
“31. A failure by the serologist to detect the
origin of the blood due to disintegration of the
serum does not mean that the blood stuck on the
axe could not have been human blood at all.
Sometimes it is possible, either because the stain is
insufficient in itself, or due to haematological
changes and plasmatic coagulation, that a
serologist may fail to detect the origin of the blood
in question. However, in such a case, unless the
doubt is of a reasonable dimension which a
judicially conscientious mind may entertain with
some objectivity, no benefit can be claimed by the
accused in this regard. Once the recovery is made
in pursuance of a disclosure statement made by
11
the accused, the matching or nonmatching of
blood group(s) loses significance.”
Similar observations were made by this Court in the case of
Gura Singh v. State of Rajasthan , (2001) 2 SCC 205 , wherein
it was observed that it was not possible to accept the submission
made on behalf of the accused that in the absence of the report
regarding the origin of the blood, the accused could not have
been convicted, inasmuch as it was only because of the lapse of
time that blood could not be classified successfully.
In the case of Jagroop Singh v. State of Punjab , (2012)
, this Court had ruled that as the recovery was made
11 SCC 768
pursuant to a disclosure statement made by the accused, and the
serological report had found that the blood was of human origin,
the nondetermination of the blood group had lost its
significance.
In the case of
State of Rajasthan v. Teja Ram and
Others , (1999) 3 SCC 507, the Court had observed that the
failure of the serologist to detect the origin of the blood, due to
disintegration of the serum, did not mean that the blood stuck on
the weapon could not have been human blood at all. In this
12
context, it was noted that it could not be said that in all cases
where there was a failure in detecting the origin of blood, the
circumstance arising from recovery of the weapon would stand
relegated to disutility. It was thus observed that unless the doubt
was of a reasonable dimension which a judicially conscientious
mind entertained with some objectivity, no benefit could be
claimed by the accused.
10. However, we cannot lose sight of the fact that the accused
would be in a disadvantageous position in case if the
aforementioned dictum laid down by this Court in the cases of
R. Shaji (supra), Gura Singh (supra), Jagroop Singh (supra)
and (supra) relating to the bloodstains is applied in
Teja Ram
each and every case. Nonconfirmation of bloodgroup or origin of
the blood may assume importance in cases where the accused
pleads a defence or alleges mala fides on the part of the
prosecution, or accuses the prosecution of fabricating the
evidence to wrongly implicate him in the commission of the
crime.
13
11. In the case of John Pandian v. State Represented by
, , this
Inspector of Police, Tamil Nadu (2010) 14 SCC 129
Court, on facts, observed that the evidence of recovery of
weapons was credible. The Forensic Science Report (FSL) report
had disclosed that the blood was of human origin. The Court
proceeded to conclude that since the evidence of recovery of
weapon was proved to the satisfaction of the Court, it was
sufficient that the prosecution had proved that the bloodstains
were of human origin, even though the blood group could not be
ascertained.
12. The cases discussed above highlight the burden that the
prosecution would ordinarily have to discharge, depending on the
other facts and circumstances of the case, for the evidence
relating to recovery to be considered against the accused. At the
same time, as mentioned above, we are conscious of the fact that
it may not always be possible to inextricably link the bloodstains
on the items seized in recovery to the blood of the deceased, due
to the possibility of disintegration of bloodstains on account of
the timelapse in carrying out the recovery. For this reason, in
Prabhu Dayal v. State of Rajasthan , (2018) 8 SCC 127 , where
14
one of us (Mohan M. Shantanagoudar J.) had the occasion to
author the judgment, this Court, relying on Teja Ram (supra),
had held that the failure to determine the blood group of the
bloodstains collected from the scene of offence would not prove
fatal to the case of the prosecution. In Prabhu Dayal case
(supra), although the FSL report could not determine the blood
group of the bloodstains on account of disintegration, the report
clearly disclosed that the bloodstains were of human origin, and
the chain of circumstantial evidence was completed by the
testimonies of the other witnesses as well as the reports
submitted by the Ballistic Expert and the Forensic Science
Laboratory regarding the weapon used to commit murder.
13. From the aforementioned discussion, we can summarise
that if the recovery of bloodstained articles is proved beyond
reasonable doubt by the prosecution, and if the investigation was
not found to be tainted, then it may be sufficient if the
prosecution shows that the blood found on the articles is of
human origin though, even though the blood group is not proved
because of disintegration of blood. The Court will have to come to
the conclusion based on the facts and circumstances of each
15
case, and there cannot be any fixed formula that the prosecution
has to prove, or need not prove, that the blood groups match.
14. In the instant case, then, we could have placed some
reliance on the recovery, had the prosecution at least proved that
the blood was of human origin. As observed supra, while
discussing the evidence of PWs 9 and 16, the prosecution has
tried to concoct the case from stage to stage. Hence, in the
absence of positive material indicating that the stained blood was
of human origin and of the same blood group as that of the
accused, it would be difficult for the Court to rely upon the
aspect of recovery of the weapons and tabbal, and such recovery
does not help the case of the prosecution.
15. What remains is the evidence of PW11 and PW12, who
have deposed about the preparation of conspiracy of the accused
to commit the murder of the deceased. As mentioned earlier, all
the accused were acquitted for the offence of conspiracy, which
means that there are concurrent findings of both the courts
below that the prosecution has failed to prove the aspect of
conspiracy of the accused to commit the murder of the deceased.
16
Once the conspiracy to commit the murder of the deceased is
absent, there is no material on record to show as to why the
accused had gathered in the house of Balwan Singh.
16. In view of the above material which is shaky, suspicion
arises in the mind of the Court about the genesis of the case of
the prosecution. In our considered opinion, the Trial Court and
the High Court were not justified in relying upon the evidence of
the eye witnesses as well as of PW11 and PW12. Similarly, their
reliance on the aspect of recovery was also not justified, for the
reasons mentioned earlier.
Accordingly, the appeals are allowed. The impugned
judgments of the Trial Court and the High Court are set aside.
The appellants are directed to be released forthwith, if not
required in any other case.
We find that the appellants in these appeals are Accused 1,
Accused 2 and Accused 7. Other accused in S.T. No. 57 of 2010
have not preferred an appeal. Since in respect of the appellants
herein we find that the prosecution has not proved the charges
beyond reasonable doubt, the benefit of this judgment should
also enure to the other accused who were convicted in S.T. No.
17
57 of 2010. Accordingly, the other accused in S.T. No. 57 of
2010, who have not preferred appeals before this Court, shall
also be released forthwith, if not required in any other case.
……………..…………………………..J.
(N.V. RAMANA)
…………………………………………..J.
(MOHAN M. SHANTANAGOUDAR)
…….………..…………………………J.
(AJAY RASTOGI)
NEW DELHI
AUGUST 06, 2019
18