Full Judgment Text
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2043 OF 2009
PRAHLAD ...APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH & ANR. ...RESPONDENT(S)
WITH
CRIMINAL APPEAL NO.983 OF 2010
JUDGMENT
B.R. GAVAI, J.
1. Both these appeals challenge the judgment and order
th
dated 11 May, 2009, passed by the Division Bench of the High
Court of Madhya Pradesh at Jabalpur in Criminal Appeal
1
No.247 of 1993, thereby allowing the appeal filed by the
respondentState of Madhya Pradesh in part and reversing the
th
order of acquittal dated 9 November, 1992, as recorded by the
learned Additional District & Sessions Judge, Harda
(hereinafter referred to as “the learned Sessions Judge”) in
Sessions Trial No. 207 of 1991 in respect of the appellants
herein.
2. Shorn of details, the facts leading to the present appeals
are as under:
nd
2.1 On 22 June, 1991, Police Station, Harda received a
written information (Exhibit P10) at 4.25 p.m. from Dr.
Kailash Narayan Singhal (P.W.10), to the effect that one
Ramesh son of Ramgopal Jat, aged about 38 years,
resident of Chhoti Harda had been brought to the Hospital
in a serious condition. In the said written information
(Exhibit P10), it was stated that Ramesh was attacked by
a Katta shot. On the basis of the said written information,
2
Police Station Harda registered a First Information Report
(“FIR” for short) vide Crime No.153 of 1991 for the offence
punishable under Section 307 of the Indian Penal Code,
1860 (hereinafter referred to as “IPC”). On registration of
the FIR, Shri M.K. Shrivastava, City Inspector, Police
Station Incharge (P.W.17) visited the spot of occurrence.
Dr. Kailash Narayan Singhal (P.W.10) and Dr. Rajendra
Kumar Patel (P.W.14) provided first aid to the injured
Ramesh and referred him to Indore Medical College for
further treatment. However, Ramesh died on the way to
Indore and his deadbody was brought back to Harda,
rd
where, on 23 June, 1991, Merg No. 18 of 1991 was
registered and postmortem of the deceased was
conducted. As per the postmortem report, the cause of
death of the deceased Ramesh was heavy bleeding due to
injury caused by firearm.
2.2 The prosecution case, in a nutshell, is that the deceased
Ramesh had political enmity with the three accused, i.e.,
3
Mohan (Accused No.1), Prahlad (Accused No.2) and
Jagdish (Accused No.3). It was further the case of the
prosecution that all three accused had hatched a
conspiracy to do away with the deceased. Mohan
(Accused No.1) and Prahlad (Accused No.2) had used the
motorcycle of Jagdish (Accused No.3) to arrive near
Handia Bus Stand, where a gunshot was fired at the
deceased from a short distance.
2.3 At the conclusion of the investigation, a chargesheet
came to be filed in the Court of learned Judicial
Magistrate First Class, Harda. Since the case was
exclusively triable by the Sessions Court, the same came
to be committed to the learned Sessions Judge.
2.4 Charges came to be framed by the learned Sessions Judge
for the offences punishable under Section 120B and 302
of the IPC and in the alternative, for offences punishable
4
under Section 302 read with Section 34 of the IPC and
Sections 25 and 27 of the Arms Act, 1959.
2.5 The accused pleaded not guilty and claimed to be tried.
The prosecution examined 17 witnesses to bring home the
guilt of the accused. Their defence was that they were
falsely implicated on account of party politics in village.
At the conclusion of the trial, the learned Sessions Judge
found that the prosecution had failed to prove the case
against the accused beyond reasonable doubt and as
such, acquitted all the three accused.
2.6 Being aggrieved thereby, the respondentState of Madhya
Pradesh preferred an appeal before the High Court. The
High Court by the impugned judgment, though affirmed
the order of acquittal of Jagdish (Accused No.3), however,
reversed the order of acquittal insofar as the present
appellants, viz., Mohan (Accused No.1) and Prahlad
(Accused No.2) are concerned. The High Court convicted
5
them for the offences punishable under Section 302 read
with Section 34 of the IPC and sentenced them to undergo
life imprisonment. Insofar as the acquittal of the present
appellants for other charges under the Arms Act, 1959 is
concerned, the same was confirmed.
3. Being aggrieved thereby, the present appeals.
4. We have heard Mr. Vivek K. Tankha, learned Senior
Counsel appearing for the appellantPrahlad in Criminal Appeal
No.2043 of 2009, Ms. Anisha Upadhyay, learned counsel
appearing for the appellantMohan in Criminal Appeal No.983
of 2010 and Mr. Abhinav Shrivastava, learned counsel
appearing on behalf of the respondentState of Madhya
Pradesh.
5. Mr. Vivek K. Tankha, learned Senior Counsel would
submit that the High Court has grossly erred in reversing a
wellreasoned order of acquittal passed by the learned Sessions
Judge. He submitted that there are glaring contradictions and
6
lacunae in the prosecution case. It is submitted that even the
High Court has found that the prosecution was conducted in a
very shoddy manner. However, in spite of there being no
evidence, the High Court converted the wellreasoned order of
acquittal into conviction.
6. Mr. Tankha submitted that the High Court has relied on
the evidence of P.W.2 Mahesh, an alleged eyewitness, to
record an order of conviction. It is submitted that the High
Court has erroneously held that the testimony of P.W.2Mahesh
was corroborated by recovery of the motorcycle and the Katta
from the accused persons. It is further submitted that both the
seizures/recoveries of the motorcycle as well as the Katta are
not sustainable in law.
7. Mr. Tankha submitted that the perusal of evidence of
prosecution witnesses would itself reveal that though
rd
statements of witnesses were recorded on 23 June, 1991, the
same have been withheld by the prosecution. He submitted
7
that from the perusal of the case diary, it will be clear that
three different versions of the story have been set up by the
prosecution. He further submitted that the requisition for
Postmortem of the deceased Ramesh would show that in the
requisition, it is mentioned that Jagdish (Accused No.3) had
assaulted the deceased Ramesh with a Katta.
8. Mr. Tankha, learned Senior Counsel, submitted that by
noticing all these discrepancies, the learned Sessions Judge
had acquitted all the accused persons. The High Court has
totally erred in reversing the wellreasoned order of acquittal
and that too, without recording any reasons.
9. Ms. Anisha Upadhyay, learned counsel adopted the
submissions made by Mr. Vivek K. Tankha, learned Senior
Counsel and submitted that both the appeals deserve to be
allowed.
10. Mr. Abhinav Shrivastava, learned counsel appearing on
behalf of the respondentState of Madhya Pradesh submitted
8
that the High Court has found that the learned Sessions Judge
had failed to take into consideration the evidence of various
eyewitnesses. He submits that the learned Sessions Judge had
discarded the testimony of various eyewitnesses only on the
ground that they are related to the deceased and that they are
on inimical terms with the accused persons. He submitted that
merely because the witnesses are interested witnesses, being
related to the deceased, it cannot be a ground to discard their
testimony, which is otherwise trustworthy. He further
submitted that the ocular testimonies of the eyewitnesses are
duly corroborated by the recoveries made at the instance of the
accused persons.
11. Mr. Abhinav Shrivastava, learned counsel further
submitted that merely because there are lacunae in the
investigation, it cannot be a ground to acquit the accused when
the evidence on record points the finger of guilt towards the
accused. Learned counsel therefore submits that the judgment
9
and order of conviction, passed by the High Court warrants no
interference and the appeals are liable to be dismissed.
12. We are aware that the scope of interference in an appeal
against acquittal is very limited. Unless the appellate court
comes to a finding that the view taken by the Sessions Judge is
either perverse or impossible, it will not be permissible to
interfere with the finding of acquittal. Equally, if two views are
possible and the appellate Court finds another view to be more
probable, it cannot interfere with the order of acquittal unless it
finds that the view taken by the learned Sessions Judge is an
impossible view. Reference in this respect could be made to a
recent judgment of this Court in the case of Guru Dutt Pathak
1
, wherein this Court has
vs. State of Uttar Pradesh
considered various earlier judgments of this Court on the issue.
13. In the backdrop of this legal position, we will have to
examine the correctness of the view taken by the High Court.
1 (2021) 6 SCC 116
10
14. At the outset, it may be mentioned that the accused
persons are not disputing the factum of the death of the
deceased being homicidal. However, it is the contention of the
accused that they have been falsely implicated on account of
political enmity.
15. The factors which weighed with the learned Sessions
Judge for acquitting the accused persons have been culled out
by the High Court in its judgment. They read thus:
“(i) The eyewitnesses were not only
related witnesses but were also
chance witnesses. There were
material omissions and
contradictions in the statements of
alleged eyewitnesses. Even after
asserting in their case diary
statement that Ramesh was fired
from a distance of 4 to 5 paces, the
eyewitnesses changed the version in
their sworn testimony apparently in
the light of the ballistic report by
deposing that the shot was fired
from a distance of nearly 18 inches.
No explanation was given by the
eyewitnesses as to why
corresponding information was not
11
given to police or to Dr. Kailash
Narayan (PW10) by any one of them.
(ii) Although, Sitabai (PW3) had stated
that she had narrated the incident
to a police officer in the hospital yet,
in the corresponding letter of
request for postmortem, name of
Jagdish was written as the author of
gunshot injury.
(iii) The statements of witnesses
recorded by ASI P.N. Bharti (PW16)
during marg enquiry were not
placed on record.
(iv) Occupiers of the hotel and shops
situated at the bus stand could have
been the natural and probable
witnesses to the incident but they
were not produced in evidence and
handcart puller was not examined.
(v) Though declared hostile, the
statement of Narayan (PW4) and
Chheetar (PW7) contradicting the
evidence of other eyewitnesses could
be taken into account to discard the
prosecution version.
(vi) The evidence as to involvement of
A3 in the conspiracy leading to
12
murder of Ramesh given by Ram
Avtar (PW13), a near relative of the
deceased, did not inspire
confidence. The motorcycle was not
proved to be belonging to Jagdish.
(vii) The investigation was tainted with
soft peddling and indifferent attitude
of the investigating officer.
Although, he claimed to have visited
the spot immediately after
registering the case under Section
307 of the IPC against unknown
persons but nonseizure of blood and
other articles from the spot coupled
with nonpreparation of spot map
completely belies his statement.
There were material interpolations
in the corresponding entries in the
Roznamcha. These entries as well as
the admissions made by
Investigating Officer M.K.
Shrivastava (PW17) reflect that some
other persons were also involved in
the incident.”
16. The High Court, after making the aforesaid observations,
goes on to discuss the evidence of the witnesses. The High
Court in paragraph 31 observed that a defective investigation
cannot, by itself, be a ground for acquittal, if the prosecution
13
case is established by other cogent evidence. Relying on the
judgment of this Court in the case of Dhanaj Singh alias
2
, the High Court observed
Shera & Ors. vs. State of Punjab
that the only requirement in such a case is that the Court has
to be circumspect in evaluating the evidence.
17. Thereafter, the High Court in paragraph 34 observed thus:
“34. The panch witnesses selected for
proving the recovery of Katta and
motorcycle as per disclosure statement
given by A1 were also not independent in
the real sense of term. Ramdin (PW8) is
the cousin of A3, the maternal uncle of
A1, who happens to be the real uncle of
A2. Hari Ram (PW9) also had a grudge
against Ramesh as, admittedly, he was
convicted under Section 326 of the IPC
for causing grievous hurt to Ramdin, the
brother of Ramesh. In these
circumstances, it was not possible to
reject testimony of M.K. Shrivastava
(PW17) as to recovery of Katta and the
motorcycle. According to him, he
prepared the memorandum (Ex.P4) as
per information given by A1 and
recovered one deshi katta and a
motorcycle at the instance of A1 only. The
katta thus, seized was sent for forensic
2 (2004) 3 SCC 654
14
examination along with the pellets and
clothes of the deceased preserved by the
autopsy surgeon Dr. Rajendra Kumar
Patel (PW14). The ballistic expert Dr.
J.K.Agrawal opined with certainty that
the gunshot injury causing holes in the
shirt and vest of the deceased could be
caused by fire through katta. It was also
observed that the pellets were compatible
to a 12bore cartridge capable of being
fired through the katta.
35. To sum up, none of the reasons
assigned by learned trial Judge to discard
the overwhelming incriminating evidence
against A1 and A2. regarding their
respective overt acts in causing death of
Ramesh, is worthy of acceptance.”
18. Thereafter, in paragraphs 36 to 40 of the impugned
judgment and order, the High Court considered the case of the
respondentState against the complicity of the accused No.3
Jagdish and observed thus in paragraph 41:
“41. Thus, although complicity of A3 in
the murder of Ramesh could not be
established beyond a reasonable
doubt yet, acquittal of A1 and A2 for
the offence was not justified. The
obvious reasoning is even if it is
15
concluded that the interested
witnesses were not able to view the
incident as being standing at a
considerable distance, the ocular
testimony of Mahesh coupled with
the medical and forensic evidence
concerning the firearm seized from
A1 and the recovery of the
motorcycle from his possession was
sufficient to prove complicity of A1
and A2 and the benefit of certain
inconsistencies in the prosecution
case caused due to apparent laxity
of investigating officer could not be
given to them. Nevertheless, their
acquittal in respect of the offences
under the Arms Act does not call for
any interference in view of the fact
that the prosecution sanction given
by DM was not proved.”
19. It could thus clearly be seen that the High Court has
converted the order of acquittal into an order of conviction as
against the accused appellants herein based on the testimony
of P.W.2Mahesh, corroborated by the seizure of the Katta and
the Motorcycle. The High Court observed that the same have
been seized/recovered on the disclosure statement made by the
accused No.1Mohan. The High Court observed that the Panch
16
witnesses were not independent, and yet it believed those
recoveries on the testimony of P.W.17M.K. Shrivastava (the
I.O.).
20. The High Court in paragraph 35 specifically observed that,
none of the reasons assigned by the learned Sessions Judge to
discard the overwhelming incriminating evidence against the
accused No.1Mohan and accused No.2Prahlad regarding their
respective overt acts in causing the death of Ramesh, is worthy
of acceptance.
21. To examine the correctness of the findings of the High
Court, it will be apposite to scrutinize the evidence on record.
Insofar as the evidence of P.W.1Har Narayan, P.W.3Sita
22.
Bai, the brother and the sisterinlaw of the deceased Ramesh
respectively, and P.W.5Hari Prasad, the brother of Sita Bai
(P.W.3) is concerned, the High Court itself has observed that it
is not probable that they could have witnessed the incident
17
from the place where they were allegedly standing. As such, it
will not be necessary to discuss their ocular testimony.
23. The High Court mainly relied on the testimony of P.W.2
Mahesh. P.W.2Mahesh states that on the date of the incident,
he, Har Narayan (P.W.1), Ramesh and Narayan went to Harda
for purchasing fertilizers. He stated that, thereafter, Sita Bai
(P.W.3) also joined them and from Naya Bazar, all of them
started going towards Handia Bus Stand. He states that,
thereafter, he and the deceased Ramesh went to Mama Hotel to
have a cup of tea. The remaining people waited on the other
side of the road across the said Hotel. After taking tea, when
they were coming out from the Hotel, he saw accused No.2
Prahlad coming from Handia side on Motorcycle. Accused
No.1Mohan was the pillion rider. Accused No.1Mohan gave a
gunshot at the stomach of the deceased Ramesh from a
distance of about one feet. After that accused No.2Prahlad
and accused No.1Mohan fled towards Handia on the said
Motorcycle. He stated that, thereafter, the injured Ramesh was
18
put on a handpulled thela and brought to the Government
Hospital. Injured Ramesh was taken to the Operation Theatre.
After half an hour, the injured Ramesh was taken out from the
Operation Room. Thereafter, on the doctors’ advice, Ramesh
was taken to Indore Hospital, accompanied by him. There are
material contradictions and improvements in his evidence.
24. It will be relevant to note that it was P.W.2Mahesh who
had brought the deceased Ramesh to the Hospital, who had
accompanied him when he was being taken to Indore as well as
while returning to Harda after the deceased Ramesh had died
on the way.
25. At this juncture, it will be relevant to refer to Exhibit P15,
which is the requisition for conducting Postmortem. In the said
requisition, the following endorsement is made:
“Sir, due to fire by Katta by Shri Jagdish s/o
Shiv Ram Jat, R/o Chhoti Harda, Ramesh
s/o Ram Gopal Jat, R/o Chhoti Harda died.”
19
26. In this background, it will be relevant to refer to the
following depositions of P.W.2 Mahesh in his cross
examination:
“14. The day on which my statement was
recorded it was only mine. It is wrong to say
that my statement was recorded on 26.
rd
Stated himself that it was recorded on 23 in
the morning. My statement was recorded at
7’o clock at the police station.”
27. It could thus clearly be seen that he has denied that his
th
statement was recorded on 26 . He has further admitted that
rd
his statement was recorded on 23 in the morning at 7’O clock
in the police station.
28. P.W.17M.K. Shrivastava (the I.O.) in his cross
examination has admitted thus:
“47. In Roz Namch dated 23.06.1991 there
is no mention of the statements of
witness Narayan, Mahesh, Harinaraya,
Sitabai and Kailash taken during
investigation. On 23.06.1991 there is
no investigation report in regard to this
case. on 24.06.1991 in Roznamcha
there is no mention about the entries of
20
recording statement of witness Chhitar,
Ramavatar, and Babulal. In this regard
no reason has been stated. Roznamcha
entry started at 6'0 clock in the
morning and continued till 6'0 clock on
2nd day. And whatever proceedings are
being carried out in 24 hours those are
being mentioned in that. During
investigation I recorded the statements
of witness only once. I have brought
Roznamcha entry number 1490, dated
26.06.91 with me. On this Roznamcha
entry there is mention about the report
of this case that is Ex.D8. The copy of
the same is Ex. D8 (C).”
29. It is thus clear from his evidence that in the Roznamcha
rd
dated 23 June, 1991, there is no mention of the statements of
the witnesses taken during investigation. It is further admitted
that, on the said date, there is no investigation report in regard
th
to this case. He further admitted that on 24 June, 1991, in
Roznamcha, there is no mention about the entries of recording
statement of witnesses. He stated that Roznamcha entry
th
started at 6’o clock in the morning of 26 June, 1991 and
21
nd th
continued till 6’o clock in the morning on 2 day, i.e., 27
June, 1991.
30. A perusal of the Roznamcha entries would make for an
interesting reading. The relevant portion of the Roznamcha
th th
entry No.1480 (Crime No.153/1991) dated 26 /27 June,
1991 reads thus:
“It has also been stated in the statement that
at Handia Bus Stand, in front of shop of
Badri Jat, they met Ram Narayan, his son
Kailash, Jagdish Sarpanch, Prem Narayan
S/o Jagdish, Mohan, Revaram, Badri, Ram
Bharose, Laxmi Narayan, Prem Narayan and
Prahlad of their Village standing there. All
these people caught Ramesh. It has been
stated in the statement that Mohan fired at
Ramesh with Katta. These witnesses were
called earlier also for making the
statements.”
In this background, it will be relevant to refer to the
31.
evidence of P.W.16P.N. Bharti, Assistant SubInspector, Police
Station, Harda. In his deposition, he clearly admitted that he
rd
had recorded the statement of witnesses on 23 June, 1991.
However, the same were not produced with the Challan. He
22
further stated that he does not have any information as to
where those statements are kept.
32. It will also be relevant to refer once again to the deposition
of P.W.17M.K. Shrivastava (the I.O.), which reads thus:
“61. On 22.06.1991 in regard to present
case one Dehati Naalis was prepared
by Thanedaar Rethia in Hospital.
Thanedaar Rethia upon my
instructions participating in
investigation in present case.
Thanedaar Barathia was not doing
independent investigation. Dehati
Naalis was prepared on the same
day by Thanedaar Barathia in the
Harda Hospital after making enquiry
from Hari Prasad. This I am stating
on the basis of entry no. 1290 dated
22.06.1991 in Roznamcha. The said
Dehati Naalis has not been
produced with the case.
62. In regard to marg ASI Bharti
recorded the statements of
witnesses but the same has not
been produced with the chalan and
has not been enclosed with the case
diary also. Where these statements
are today I cannot tell. It is correct
that in Marg investigation/enquiry
the statements of witnesses were
23
recorded those statements and
statement of witness Harnarayan
and Mahesh recorded on
26.06.1991 and the statements of
witness Sitabai and Kailash
recorded on 27.06.1991 are against
the prosecution therefore the same
have not been produced in the
court.”
33. It is thus clear that the prosecution has come out with
three different versions. As per the Postmortem requisition, it
is the accused No.3Jagdish who had shot the deceased
Ramesh. As per the ocular testimony of P.W.2Mahesh, which
is relied on by the High Court, it is the accused No.1Mohan,
sitting as pillion rider with accused No.2Prahlad, who had shot
the deceased; and the third version as per the Roznamcha, 11
persons had caught deceased Ramesh and accused No.1
Mohan had fired at him with Katta. It is a case full of
mysteries. According to P.W.2Mahesh, his statement was only
rd
recorded on 23 June, 1991, which is corroborated by P.W.16
P.N. Bharti, Assistant SubInspector, Harda. Whereas
24
according to P.W.17M.K. Shrivastava (the I.O.), the statements
th th
were recorded only on 26 and 27 June, 1991. The
Postmortem requisition states that it is accused No.3Jagdish,
who had assaulted the deceased Ramesh with Katta. P.W.16
P.N. Bharti states that he is not aware as to where the
rd
statements recorded by him on 23 June, 1991 are kept.
P.W.17M.K. Shrivastava (the I.O.), admits that Dehati Naalis
was prepared by Thanedar Bharti. However, the same was not
produced with the case. He further admitted that the
statements of some of the witnesses were against the
prosecution and therefore the same have not been produced in
the Court.
34. It is thus clear that the prosecution has failed to bring out
the true genesis of the incident. The prosecution has not come
to the Court with clean hands. As such, the High Court has
rightly held that the investigation conducted by the P.W.17
M.K. Shrivastava (the I.O.) was not done in a fair and impartial
manner. However, in spite of that, though the High Court has
25
refused to rely on the testimony of the Panch witnesses, it has
relied on the recovery of the Motorcycle and the Katta, allegedly
at the instance of the accused No.1Mohan only, on the basis of
the testimony of the very same P.W.17M.K. Shrivastava (the
I.O.).
35. Mr. Abhinav Shrivastava, learned counsel appearing on
behalf of the respondentState of Madhya Pradesh is right in
contending that the conviction could be based on the sole
testimony of a single eyewitness and therefore the High Court
was justified in convicting the accused on the basis of the
testimony of P.W.2Mahesh. In this respect, it will be relevant
to refer to the judgment of this Court in the case of Anil
3
, wherein this Court has observed
Phukan vs. State of Assam
thus:
“3. …….Indeed, conviction can be based
on the testimony of a single eyewitness
and there is no rule of law or evidence
which says to the contrary provided the
sole witness passes the test of reliability.
3 (1993) 3 SCC 282
26
So long as the single eyewitness is a
wholly reliable witness the courts have no
difficulty in basing conviction on his
testimony alone. However, where the
single eyewitness is not found to be a
wholly reliable witness, in the sense that
there are some circumstances which may
show that he could have an interest in
the prosecution, then the courts generally
insist upon some independent
corroboration of his testimony, in
material particulars, before recording
conviction. It is only when the courts find
that the single eyewitness is a wholly
unreliable witness that his testimony is
discarded in toto and no amount of
corroboration can cure that defect….”
36. It is also equally well settled that previous enmity is a
doubleedged sword. Though, it can provide a motive for the
crime, it can also be a ground for false implication. Reliance in
this respect, could be made on the judgment of this Court in
4
the case of Ramashish Rai vs. Jagdish Singh , wherein this
Court has observed thus:
7. …………..By now, it is wellsettled
principle of law that enmity is a double
4 (2005) 10 SCC 498
27
edged sword. It can be a ground for false
implication. It also can be a ground for
assault. Therefore, a duty is cast upon the
court to examine the testimony of inimical
witnesses with due caution and diligence.
……….”.
It is further contended by Shri Shrivastava, learned
37.
counsel, that merely because there are lacunae in the
investigation, it cannot be a ground to acquit the accused, if
there is other evidence available on record. In this respect, we
may gainfully refer to the observations of this Court in the case
5
of :
Sunil Kundu and another vs. State of Jharkhand
“ 29. We began by commenting on the
unhappy conduct of the investigating
agency. We conclude by reaffirming our
view. We are distressed at the way in
which the investigation of this case was
carried out. It is true that acquitting the
accused merely on the ground of lapses
or irregularities in the investigation of a
case would amount to putting premium
on the deprecable conduct of an
incompetent investigating agency at the
cost of the victims which may lead to
encouraging perpetrators of crimes. This
5 (2013) 4 SCC 422
28
Court has laid down that the lapses or
irregularities in the investigation could
be ignored subject to a rider. They can
be ignored only if despite their
existence, the evidence on record bears
out the case of the prosecution and the
evidence is of sterling quality. If the
lapses or irregularities do not go to the
root of the matter, if they do not
dislodge the substratum of the
prosecution case, they can be ignored.
In this case, the lapses are very
serious…….”
The present case too is full of inconsistencies. The
38.
evidence of the witnesses is contradictory to each others’. The
investigation is carried out in a totally irregular manner. As
already discussed herein above, the testimony of P.W.2Mahesh
itself cannot be said to be of sterling quality. The socalled
recoveries are also totally untenable.
39. In this view of the matter, the conviction of the appellants
on the sole testimony of P.W.2Mahesh would not be tenable.
The Division Bench of the High Court has relied on the recovery
of the Motorcycle and the Katta, allegedly at the instance of the
29
disclosure statement given by the accused No.1Mohan.
Insofar as the recovery of Motorcycle is concerned, the said
Motorcycle has been recovered at the instance of one Mahesh,
son of Jagdish Jat, i.e., son of the accused No.3, and that too
th
on 25 June, 1991. As such, the finding of the High Court that
it is recovered at the instance of the accused No.1Mohan is
inconsistent with the record.
40. Insofar as the recovery of the Katta at the instance of the
accused No.1Mohan is concerned, it would reveal that both the
arrest as well as the recovery are shown to be made
th
approximately at the same time on 26 June, 1991. The
distance between the Police Station and the place from where
the alleged recovery is made is about 5 km. Apart from that,
the recovery of Katta is from an open place, accessible to one
and all. Furthermore, there is no Panchnama on record to
show as to in what manner the said recovery was made. As
such, the said recovery is also not free from doubt and could
not have been relied on by the High Court.
30
41. We are therefore of the considered view that the High
Court has totally erred in reversing the wellreasoned order
passed by the learned Sessions Judge acquitting the accused.
The High Court has travelled much beyond the scope of
interference in an appeal against acquittal. The present
appeals therefore deserve to be allowed. It is ordered
accordingly.
…….........................J.
[B.R. GAVAI]
………………....…….........................J.
[PAMIDIGHANTAM SRI NARASIMHA]
NEW DELHI;
JULY 27, 2022
31
1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 2043 OF 2009
PRAHALAD APPELLANT(S)
VERSUS
STATE OF MADHYA PRADESH RESPONDENT(S)
WITH
CRIMINAL APPEAL NO. 983 Of 2010
O R D E R
Applications for impleadment in both the matters
are allowed.
For the reasons recorded separately, the appeals
are allowed. The judgment and order of the High Court dated
11.05.2009 convicting the appellants for the offences
punishable under Section 302 read with Section 34 of the
Indian Penal Code, 1860 is quashed and set aside. The
judgment and order passed by the learned Additional
District & Sessions Judge, Hoshangabad (Madhya Pradesh)
acquitting the appellants for all the charges is confirmed.
The bail bonds shall stand discharged.
....................J
(B.R. GAVAI)
.............................J
(PAMIDIGHANTAM SRI NARASIMHA)
NEW DELHI;
th
27 JULY, 2022