My photo




Wednesday, November 9, 2016

no doubt, an innocent man has lost his life at the hands of another man, and looking at the way in which the investigation was handled, we are sure to observe that it was carried out in a lackluster manner. The approach of the Investigating Officer in recording the statements of witnesses, collecting the evidence and preparation of site map has remained unmindful. The Investigating Officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution’s case. We may hasten to add that in the present case the investigation was carried out with unconcerned and uninspiring performance. There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused. We feel that there are no compelling and substantial reasons for the High Court to interfere with the order of acquittal when the prosecution has miserably failed to establish the guilt of the accused. Added to this, the accused has already undergone nine years’ of imprisonment and we feel that it is a fit case inviting interference by this Court. Resultantly, the appeal is allowed and the judgment of conviction and order of sentence passed by the High Court is set aside. =2016 Dec. - MAHAVIR SINGH Vs. STATE OF MADHYA PRADESH A.K. SIKRI, N.V. RAMANA


                        IN THE SUPREME COURT OF INDIA


                      CRIMINAL APPEAL NO. 1141 OF 2007

         MAHAVIR SINGH                                  … APPELLANT


           STATE OF MADHYA PRADESH                    … RESPONDENT



This appeal arises out of the judgment and  order  dated  19th  March,  2007
passed by the High Court of Madhya Pradesh, Bench  at  Gwalior  in  Criminal
Appeal No. 36 of 1996 whereby the High Court has partly allowed  the  appeal
preferred by the State by confirming the judgment of  the  Trial  Court  for
the offence under Section 148 of IPC and convicted the appellant herein  for
the  offence  under  Section  302,  IPC  and  sentenced   him   to   undergo
imprisonment for life.

The brief facts of the case as culled out from the case of  the  prosecution
are that on 26th December, 1987 at about 1 p.m. while Gambhir Singh  (PW  7)
(brother of the deceased) was having lunch at his home, the appellant  along
with a group of co-accused persons, each armed with  deadly  weapons  rushed
to his house hurling abusive filthy words and picked up a quarrel  with  his
brother Jagannath Singh (deceased) who was sitting  outside  on  a  platform
(Chabutara) along with his nephew Bir Singh (PW 11).  When  Jagannath  Singh
(deceased) raised  objection  to  their  behavior,  the  appellant  fired  a
gunshot in the abdomen of the deceased as a result of which he fell down  on
the ground and succumbed to the injuries.

Gambhir Singh (P.W. 7) carried the  body  of  the  deceased  to  the  police
station, Lahar on a bullock cart and lodged the FIR (Annexure P-1)  at  4.15
PM on the same day. Dilip Singh Yadav (PW-13) prepared inquest memo and  Dr.
A. K. Upadhyay (P.W. 12) conducted autopsy on the dead body.   On  the  next
day, Dilip Singh Yadav (PW 13) seized blood  stained  soil  and  plain  soil
from the place of occurrence, as per seizure memo. He also seized a gun,  12
live cartridges and 9 empty cartridges  from  the  possession  of  appellant
Mahavir Singh, an axe from Sobaran (co-accused) and  a  lathi  from  Kanched
Singh (another co-accused)  as  per  seizure  memo  and  sent  them  to  the
Forensic Science Laboratory at Sagar. Consequently, statements of  witnesses
were  recorded  under  section  161  of  Cr.P.C.,  spot  map  was   prepared
and Charge-sheet was filed against the appellant under  sections  302,  147,
148 and 149 of the IPC in the Court  of  Judicial  Magistrate  First  Class,
Lahar who committed the case to Court  of  Sessions  for  Trial.  The  Trial
Court framed charges u/s 302 and 148 of IPC against the appellant and  under
sections 148, 302/149 of IPC against co-accused.  All  the  accused  pleaded
not guilty and claimed to be tried. To prove the guilt of the  accused,  the
prosecution has examined 13 witnesses and marked several Exhibits while  the
accused examined none in defence and no exhibits were marked on his behalf.

The Trial Court  by  its  judgment  and  order  dated  30th  November,  1994
acquitted the appellant from the alleged offences mainly on the ground  that
there are contradictions in the evidence of eyewitnesses to that of  medical
evidence, prosecution has failed to prove beyond reasonable doubt  formation
of unlawful assembly with a motive of committing murder of the deceased  and
also failed to establish that the bullet had been  fired  with  the  firearm
seized from the appellant.

Dissatisfied with the Judgment of the Trial Court, the  State  preferred  an
appeal before the High Court claiming that the judgment of the  Trial  Court
is perverse and illegal inasmuch as it did not  appreciate  the  prosecution
evidence in right perspective and ignored the evidence of the  eyewitnesses.
The High Court, on a reanalysis of evidence  of  prosecution  witnesses  and
other material available on record came to the  conclusion  that  the  Trial
Court was right in acquitting the other co-accused persons but  found  fault
with the acquittal of the appellant under Section 302 IPC. The  High  Court,
therefore, partly allowed the appeal  by  confirming  the  judgment  of  the
Trial Court in respect of the charge under Section  148  and  convicted  the
appellant herein for the offence under Section 302, IPC  and  sentenced  him
to undergo imprisonment for life. Aggrieved by  the  Judgment  of  the  High
Court, the appellant approached this Court in appeal.

Learned counsel for the appellant submitted that  the  Trial  Court  rightly
acquitted the appellant,  after  elaborately  considering  the  evidence  on
record, upon coming to the conclusion that there is lack of  credibility  in
the testimony of the prosecution witnesses, and, in particular, the  medical
and ocular testimonies are conflicting; there was considerable delay on  the
part  of  Investigating  Officer  in  recording  the  evidences  of  alleged
eyewitnesses inasmuch  as  statements  by  none  of  the  eyewitnesses  were
recorded on the day of occurrence of the incident.

In the background of this factual matrix, learned counsel for the  appellant
has advanced his arguments that since the appellant and victim parties  have
prior enmity over some pending criminal cases, the  family  members  of  the
deceased, i.e., Gambhir Singh (PW 7), Shanti Devi (PW 8), Bir Singh (PW  11)
in connivance and with the help of a  pocket  witness  Madho  Singh  (PW  9)
concocted the story, by projecting himself as  an  eyewitness,  and  falsely
implicated  the  appellant.  According  to  him,  this   fact   is   clearly
established  with  the  contradictions  in  the  medical  evidence  and  the
unreliable evidence of the alleged interested eyewitness.  The  presence  of
Gambhir Singh (PW 7), at the time of occurrence, as heavily relied  upon  by
the prosecution, proves to be false in the light of evidence  of  Bir  Singh
(PW 11) who nowhere in his testimony mentioned that  Gambhir  Singh  (PW  7)
alone came out of the house and witnessed the incident and Madho  Singh  (PW
9) claimed that soon after the shooting, Gambhir Singh  (PW  7),  Bir  Singh
(PW 11) and Shanti Devi (PW 8) came out  of  the  house  and  therefore  the
accused fled away from the spot. It  is  also  contended  that  the  alleged
eyewitnesses Gambhir Singh (PW 7), Bir Singh  (PW 11) and  Shanti  Devi  (PW
8) made material improvements in  their  testimonies  before  the  Court  in
order to connect the case of prosecution with the medical report. Thus,  the
presence of the eyewitnesses at the place of occurrence is doubtful.

Learned counsel further urged that as per the  site  plan  prepared  by  the
Investigation Officer and also as per the  medical  evidence,  the  deceased
Jagannath Singh was standing when he was  shot.  According  to  the  medical
report, the injuries sustained by the deceased are possible  only  when  the
assaulter stands at a height above the victim. Contrary to  this,  the  case
advanced  by  the  prosecution,  coupled  with  the  evidence   of   alleged
eyewitness, is that the appellant was standing on  a  lower  level  and  the
deceased was standing on a  higher  level  i.e.  on  the  platform.  In  his
statement Madho Singh (PW 9) categorically mentioned that the  deceased  was
sitting on the platform (Chabutara) and the appellant was  standing  on  the
ground, when he was shot.  While  the  medical  report  indicated  that  the
margins of the wounds were inverted and the  bullet  must  have  been  fired
from a distance of within 6 feet, and as per the testimonies of  the  direct
eyewitnesses, the said distance varied between 12 to 22.5 feet. The  absence
of human blood at the alleged place of incident i.e.  on  the  platform  and
presence of blood on the ground in front of  the  platform  further  renders
the prosecution’s case even more doubtful. This  blood  also  could  not  be
matched with that of the deceased and therefore, recovery of weapons  is  of
no relevance. Simply for the reason that the  post-mortem  report  indicated
that the deceased had died due to one single gunshot, and mere  recovery  of
nine empty cartridges from the appellant does not in  any  way  connect  him
with the crime, when the empty cartridges were not recovered from the  place
of incident and also in the absence of authenticated proof that  the  bullet
shot at the deceased was fired from the gun owned by the appellant.  Learned
counsel thus submits that the statements of eyewitness are not  trustworthy.
Considering the facts in  their  entirety,  such  as  delayed  recording  of
statements of the eyewitnesses and an unsuccessful attempt to reveal  as  to
where the bullet had struck the  victim  and  the  unmatched  statements  by
prosecution witnesses with that of the medical  expert,  the  learned  Trial
Court was pleased to record the order of acquittal of the appellant.

The learned counsel finally submitted that the  High  Court,  on  the  other
hand, failed to appreciate  the  evidence  in  true  legal  perspective  and
wrongly interfered with the well reasoned judgment of  acquittal  passed  by
the Trial Court based on a cogent and detailed reasoning and that  the  High
Court committed a grave error by acquitting  the  accused  for  the  offence
under Section 302 IPC. The impugned judgment  is  contrary  to  the  settled
legal principles as it did not give due weightage to  the  medical  evidence
and rejected the same without ascribing any reason.  Thus,  interference  by
the High Court with the reasoned judgment of acquittal passed by  the  Trial
Court is unwarranted. Learned counsel submits that in the light  of  settled
legal principles, the conviction of the  appellant  by  the  High  Court  is
vague and uncalled for and the same requires to be set aside by this  Court.

On the other hand, learned counsel appearing for the State, argued that  the
judgment of the Trial Court acquitting the appellant  was  wholly  erroneous
as it was passed without taking into account  the  prosecution  evidence  in
its right perspective.  There  was  no  inconsistency  in  the  evidence  of
eyewitnesses who were very much present at the  scene  of  offence  and  the
Trial Court was not justified in ignoring their evidences. The  High  Court,
after re-appreciating the entire evidence  on  record,  took  a  justifiable
stand in convicting the accused under Section 302  of  the  IPC  by  a  well
reasoned judgment and that there is  no  illegality  or  perversity  in  the
conviction of the accused calling interference by this Court.

We have heard the learned counsel on either side at length and  perused  the
material available on record. Now it is imperative to look  into  the  scope
of interference by the appellate Court in an appeal  against  acquittal  and
whether the High  Court  was  justified  in  convicting  the  accused  under
Section 302, IPC by reversing the order of acquittal  passed  by  the  Trial

In the criminal jurisprudence, an accused is presumed to  be  innocent  till
he is convicted by a competent Court after a full-fledged  trial,  and  once
the  Trial  Court  by  cogent  reasoning  acquits  the  accused,  then   the
reaffirmation of his innocence places more burden  on  the  appellate  Court
while dealing with the appeal. No doubt, it is settled law  that  there  are
no fetters on the power of the appellate Court to review,  reappreciate  and
reconsider the evidence both on facts  and  law  upon  which  the  order  of
acquittal is passed. But the court has to be very  cautious  in  interfering
with an appeal unless  there  are  compelling  and  substantial  grounds  to
interfere with the order of acquittal. The appellate Court while passing  an
order has to give clear reasoning for such a conclusion.

It is no doubt true that there cannot be any strait  jacket  formula  as  to
under what circumstances appellate Court can interfere  with  the  order  of
acquittal, but the same depends on facts and circumstances of each case.  In
the case on hand, we have to examine the rationale behind the conclusion  of
the High Court in convicting the  accused  and  the  compelling  reasons  to
deviate from the order of acquittal passed by the Trial Court.

On a thorough analysis of the judgment impugned,  it  is  evident  that  the
High Court has not  recorded  any  reasons  for  partly  setting  aside  the
judgment of the Trial Court which has  acquitted  all  the  accused  persons
from the same set of facts before it. The High Court  which  has  set  aside
the acquittal order of the Trial Court has observed  that  the  Trial  Court
has based its reasoning on guess work. We find it that even the  High  Court
has committed the same mistake and basing on the same facts and  guess  work
has arrived at the conclusion that the appellant is guilty.

It is specifically urged by the learned counsel for the  appellant  that  as
per the medical  evidence,  the  injuries  sustained  by  the  deceased  are
possible only when the assaulter stands at a height  above  the  victim.  In
this process, the court has guessed that Mahavir  Singh  (accused-appellant)
and Jagannath (deceased) were of similar height which is nobody’s  case  and
no evidence is available on record to come to a conclusion that  the  height
of the two is same. The evidence available on record in  this  regard  is  a
statement of Dr. A.K. Upadhyay (PW 12) that  the  deceased  was  of  average
Height. Now in order to establish that the bullet  traveled  in  a  downward
direction, they have explained that the position of the gun usually kept  in
a downward position resting on the chest. Now  the  logical  fallacy  is  to
have assumed the height of the platform whose height has not  been  recorded
due to sloppy investigation by the Investigating Officers.  There  exists  a
reasonable doubt because of the fact that the height  of  the  platform  was
not recorded and the same cannot be guessed at this point of time.  Further,
the deposition of the Doctor is very clear that the shooter might have  been
at a lower level. While some  of  the  witnesses  have  suggested  that  the
deceased was on the ground while others have pointed out to  the  fact  that
he was standing on the platform. Therefore, from the same set of facts,  the
Trial  Court  as  well  as  the  High  Court  have  arrived   at   different
conclusions, such an exercise cannot be undertaken by the High Court  in  an
Appeal unless the conclusion drawn by the Trial Court  cannot  be  sustained
based on the facts and circumstances and when two conclusions  are  possible
based on the evidence available on record, the  appellate  court  should  be
all the more reluctant to interfere with the findings recorded by the  Trial

It appears to us that the difference of opinion between the Courts below  in
deciding whether or not the appellant has committed the offence  with  which
he is charged,  mainly  revolves  around  the  presence  of  alleged  direct
eyewitnesses at the spot,  possibility  of  appellant’s  inflicting  firearm
injury to the deceased in view of the positioning of  the  injury  sustained
by the deceased, the material infirmity, if any, and  contradiction  in  the
ocular and medical evidence. It is,  however,  clear  that  though,  at  the
outset,  the  accused/appellant  absolutely  rejected  the  allegation   and
pleaded not guilty by taking the defence of  alibi  that,  on  the  date  of
incident, he was irrigating his field, but his claim has not been  supported
by any evidence.

Undoubtedly, Gambhir Singh (PW 7—brother of the deceased) has accepted  that
certain criminal proceedings  were  pending  between  the  accused  and  his
family members. He also admits that one case had already been filed  by  the
accused prior to the incident. Admittedly, Shanti Devi  (PW  8—wife  of  the
deceased) also has deposed that there was an  altercation  between  her  son
Vijender and Dhullu, on which they killed her  husband.  Thus,  the  parties
are admittedly in hostile terms and the incident in question occurred  in  a
broad day light at the residence of the deceased by doing away his  precious
life. The prosecution, in support of its version, has  heavily  relied  upon
the statements of eyewitnesses Gambhir  Singh  (PW  7-complainant  and  also
brother of the deceased), Shanti Devi (PW 8-wife  of  the  deceased),  Madho
Singh (PW 9) and Bir Singh (PW  11-nephew  of  the  deceased).  The  learned
Trial Judge disbelieved the presence of eyewitnesses on the spot in view  of
delayed recording of their statements by the Investigating Officer  (PW  13)
and also they remained unsuccessful in revealing exactly  as  to  where  the
bullet had struck the deceased. We also  find  that  nowhere  in  the  First
Information Report, the name or presence of eyewitness Shanti  Devi  (PW  8)
was mentioned as a witness to the incident.

The High Court has attached a lot of weight to  the  evidence  of  the  said
Madho Singh (PW 9) as he is  an  independent  witness.  On  perusal  of  the
record, it appears that the said person already had deposed for  the  victim
family on a  number  of  previous  occasions,  that  too  against  the  same
accused. This being the fact, it is important to analyze  the  jurisprudence
on interested witness. It is  a  settled  principle  that  the  evidence  of
interested witness needs to be scrutinized with utmost care. It can only  be
relied upon if the evidence has a ring of truth to it, is  cogent,  credible
and trustworthy. Here we may refer to chance witness also. It is to be  seen
that although the evidence of a chance witness is acceptable in  India,  yet
the  chance  witness  has  to  reasonably  explain  the  presence  at   that
particular point more so when his deposition  is  being  assailed  as  being

A contradicted testimony of an interested witness cannot be usually  treated
as conclusive. The said Madho Singh (PW 9) has admitted that he has  been  a
witness in another case against the accused for the deceased. Here it is  to
be seen that the said Madho Singh  (PW  9)  has  been  acting  as  a  pocket
witness for  the  family.  Further,  the  credibility  of  this  independent
witness can be challenged on the fact that the commotion was only  heard  by
the said Madho Singh (PW 9) whereas the rest of the members of the  locality
did not come for help.  As Madho Singh (PW 9) is a chance  witness  as  well
as an interested witness herein,  causes  suspicion  and  does  not  inspire
confidence. This admission by Madho Singh (PW  9)  not  only  forces  us  to
doubt the veracity of his own deposition but also has created doubts on  the
version of Gambhir Singh (PW 7).

We have thoroughly examined the evidence of  expert  witnesses  as  well  as
other ocular witnesses. The evidence of Dr. A.K. Upadhyay  (PW  12)  reveals
that when the deceased sustained bullet injury, he  might  have  been  in  a
standing position and the bullet would  have  entered  from  left  side  and
exited from right side of the body. This fact,  however,  corroborated  with
the evidences of PW 7 (Gambhir Singh)  and  PW  8  (Shanti  Devi),  but  the
statements of PW 9 (Madho Singh) and PW 11 (Bir Singh) do  not  support  it.
Similarly, there were contradictions between the statements of Dr.  Upadhyay
(PW 12) and that of the eyewitnesses as to the distance and  height  of  the
assaulter while inflicting the grievous injury to the deceased  and  whether
the deceased was standing on the platform (Chabutara) or came down  from  it
while receiving the bullet  injury.  We  find  from  the  statement  of  Dr.
Upadhyay (PW 12) that he was not clear and  definite  to  say  exactly  from
what position and distance the assaulter could have fired the gun.

Going by the seizure memo (Ex.P/3) apparently one gun, 12 live and  9  empty
cartridges were recovered from the appellant. The evidences of  eyewitnesses
support this fact and no question was put to the I.O. after the recovery  of
the gun and cartridges, that whether he himself shot from the seized gun  to
create evidence. The prosecution’s story is  somewhat  strengthened  by  the
ballistic expert’s report (Ex. P/12) which affirms that the gun seized  from
the appellant was in perfect order,  the  empty  cartridges  bore  the  same
impression on pin as seized from the accused and the  live  cartridges  were
actually fired by the gun seized from the appellant.   But  nowhere  it  was
mentioned that the death of the victim occurred by the bullet released  from
the  seized  gun.  Merely  the  seizure  of  gun  and  cartridges  from  the
appellant, the ongoing enmity between the  parties  on  account  of  various
criminal litigations and  the  altercation  and  exchange  of  heated  words
between the rival groups on the morning of the same  day,  cannot  establish
the guilt of accused beyond reasonable doubt.

The position of law in cases where there is a contradiction between  medical
evidence and ocular evidence can be crystallized to the effect  that  though
the ocular testimony of a witness has greater  evidentiary  value  vis-à-vis
medical  evidence,  when  medical  evidence  makes  the   ocular   testimony
improbable, that becomes a relevant factor in the process of the  evaluation
of  evidence.  However,  where  the  medical  evidence  goes  far  that   it
completely rules out all possibility of the ocular evidence being true,  the
ocular evidence may be disbelieved [See : Abdul Sayeed v .  State  of  M.P.,
(2010) 10 SCC 259]

In view of contradictory statements by  the  prosecution  witnesses  coupled
with the unmatched medical evidence, delay in  recording  of  statements  of
witnesses by the I.O., non-availability of  proper  site  plan  and  in  the
absence of authenticated ballistic expert report that the  bullet  had  been
fired with the seized gun of the appellant, the Trial Court  had  to  decide
the case against the  prosecution  and  discharge  the  appellant  from  the
charges. The High Court, upon carrying the  exercise  of  reappreciation  of
evidence, formed the view that  the  reasons  for  delay  in  recording  the
statements of witnesses have been properly explained; that as  soon  as  the
bullet struck on the abdomen of the deceased, he immediately fell down  from
the platform. It further observed that though the name of  Shanti  Devi  (PW
8) was not mentioned in the FIR, there is positive  evidence  on  record  to
establish  her  presence  at  the  time  of  incident   along   with   other
eyewitnesses and this fact  has  been  established  by  their  corroborative
statements and there is no reason to disbelieve their  statements.  Here  it
is worthwhile to mention that both the Courts below formed a common  opinion
that the prosecution has failed to prove the charges under Sections 148  and
302/149 of IPC  against  the  co-accused  and  discharged  them  from  those
charges. The disagreement between the Trial Court  and  the  High  Court  is
only in respect of the charge under Section 302, IPC against the appellant.

It is the duty of the Apex Court to separate chaff  from  the  husk  and  to
dredge the truth from the pandemonium of Statements. It is but  natural  for
human beings to state variant  statements  due  to  time  gap  but  if  such
statements  go  to  defeat  the  core   of   the   prosecution   then   such
contradictions are material  and  the  Court  has  to  be  mindful  of  such
statements [See : Tahsildhar Singh v. State of UP, AIR 1959 SC  1012;  Pudhu
Raja v. State, (2012) 11 SCC 196; State of UP v. Naresh, (2011) 9 SCC  698].
The case in hand is a fit case, wherein  there  are  material  exaggerations
and contradictions, which inevitably raises doubt  which  is  reasonable  in
normal circumstances and keeping in view the substratum of  the  prosecution
case, we cannot infer beyond reasonable doubt that the appellant caused  the
death of the deceased.

Normally, when a culprit perpetrates a heinous crime  of  murder  and  takes
away the life of a human being, if appropriate punishment is not awarded  to
that offender, the Court will be failing  in  its  duty.  Such  crime,  when
indulged by a criminal blatantly, is not  committed  against  an  individual
alone, but is committed against the society as well to  which  the  criminal
and victim are a part. It  needs  no  emphasis  from  this  Court  that  the
punishment to be awarded for such a crime must be  relevant  and  it  should
conform to and be consistent with the atrocity and brutality with which  the
crime has been carried out.

Here in the instant case, no doubt, an innocent man has  lost  his  life  at
the hands of another man, and looking at the way in which the  investigation
was handled, we are sure to observe that it was carried out in a  lackluster
manner.  The  approach  of  the  Investigating  Officer  in  recording   the
statements of witnesses, collecting the evidence  and  preparation  of  site
map has remained  unmindful.  The  Investigating  Officer,  dealing  with  a
murder case, is expected to be diligent, truthful and fair in  his  approach
and his performance should always be in conformity with  the  police  manual
and a default or breach of duty may prove fatal to the  prosecution’s  case.
We may hasten to add that in the present case the investigation was  carried
out with unconcerned and uninspiring performance.  There  was  no  firm  and
sincere effort with the needed zeal and spirit to bring home  the  guilt  of
the accused. We feel that there are no compelling  and  substantial  reasons
for the High Court to  interfere  with  the  order  of  acquittal  when  the
prosecution has miserably failed to establish  the  guilt  of  the  accused.
Added  to  this,  the  accused  has  already  undergone   nine   years’   of
imprisonment and we feel that it is a  fit  case  inviting  interference  by
this Court.

Resultantly, the appeal is allowed and the judgment of conviction and  order
of sentence passed by  the  High  Court  is  set  aside.  Consequently,  the
appellant shall be set at liberty forthwith if not  required  in  any  other

……………………………..J. (A.K. SIKRI)

…………………………….J. (N.V. RAMANA)


NOVEMBER 09, 2016

No comments:

Post a Comment

Note: Only a member of this blog may post a comment.