Criminal Appeal No. 448 OF 2001
1. Challenge in this appeal is to
the judgment of a Division Bench of the Allahabad High Court setting
aside the conviction of the respondents for offences punishable under
Section 302 read with Section 34 of the Indian Penal Code, 1860 (in
short 'the Act') and Section 20l, IPC. Each of the respondents was
sentenced to undergo imprisonment for life for the offence relatable to
Section 302/34 IPC and four years' for the other offence.
2. The prosecution case in a
nutshell is as follows.
Dal Chand (hereinafter referred to as the 'deceased') along with his
wife Smt. Raj Kaur, the informant (PW-1) and their son Paramjeet Singh
(PW-7) had gone to graze their cattle. At about sunset time on their way
back to their house they reached the courtyard of Ganga Ram. They were
accosted by the appellants who came out from behind the bushes. Accused
Ram Veer Singh was armed with a gandasa, Suresh was holding a Ballam and
Chet Ram was possessing a lathi. They started belaboring the deceased
Dal Chand, with their respective weapons by saying that he should not be
spared. The cries of the above witness and the victim attracted Chottey,
Ganga Ram and Dhyan Singh all residents of Mohanpur to the spot. On a
challenge being given by them the assailants started dragging the victim
by holding him by his feet. When they were challenged they rushed
towards the witnesses also and the witnesses thereafter abandoned the
chase of the assailants. They came back to the village and after
sometime the informant had gone to the spot with the village Chowkidar.
She did not find the body of her husband at the spot although blood was
found lying there. The search for Dal Chand was conducted by his wife
through out the night but he could not be located or found. No villager
was informed or taken into confidence by her.
The motive of this murder as is
apparent from the FIR was to avenge the murder of Raghuvir Singh
resident of village Bhadaria. Ram Veer Singh was nursing a suspicion
that deceased Dal Chand, was instrumental behind the murder of Raghuvir.
The FIR of the present incident was lodged at the police station,
Ganeshkhera by Smt. Raj Kaur on the next day at 9.15 A.M. The body of
the victim was discovered from a pond which was full of water after a
month of the occurrence. It was first discovered by the village
Chowkidar. He informed Smt. Raj Kaur who identified the corpse so
recovered from the pond of village Bhadaria as that of her husband Dal
Chand. Identity was based solely from the clothes worn by the corpse.
After identification of the corpse she informed the concerned police
station at about 7 P.M. After completion of investigation charge sheet
was filed and charges were framed.
3. The accused persons pleaded
innocence. They seriously challenged the identity of the dead body as
that of the deceased. The Trial Court found the accused persons guilty
and convicted and sentenced them, as aforesaid. Before the High Court,
the accused persons took the plea that the autopsy conducted by Dr. K.S.
Tewari (PW-2) indicated that the body bore no marks of injury. Most of
the organs below the neck to the wrist were found missing by the Doctor.
Scalp too was found missing but the skull bones were found intact. They
bore no mark of any injury, i.e. any cut or fracture. The body was found
in highly decomposed state. The clothes did not have any mark of assault
by weapons or blood stains. It was also submitted that the evidence of
PW-l did not inspire confidence. Her testimony was full of
contradictions and it was apparent that she was not telling the truth.
The evidence of the child witness (PW-7) was also found to be fragile
and the court should not have acted on it.
4. The stand of the State, on the
other hand, was that the evidence was sufficient to fasten the guilt on
the accused persons.
5. The High Court analyzed the
material on record and the conclusions arrived at by the Trial Court. It
noted that PW-4, Chhotey Lal, who was claimed by the prosecution to be
one of the eye-witnesses resiled from the statements made during
investigation. It was found that the dead body was found from a pond
which was full of water after about a month. The evidence of PW-1 was
found to be totally unre1iable. She claimed that she had gone to the
police station with the blood of her husband which was collected from
the spot next morning. According to her, this was done by her after
lodging the F.I.R. The High Court noticed that her testimony was that
first she went to the police station to lodge the report. After that,
she came back and went to police station with blood on the second
occasion. She had admitted that it was raining very heavily and it
continued to rain throughout the day. She had admitted that when she had
gone to report the case at the police station, it was raining. She did
not come out as it continued to rain until evening. The High Court found
it hard to believe that she had gone with the blood taken from the spot
to the police station. Her statement was also controverted by the
investigating officer who stated that he had recovered the blood and
sample of earth from the spot of occurrence the next day. The time of
lodging the FIR was found to be suspicious by the High Court in view of
several contradictory statements made by PW-l. The investigating officer
also admitted in his cross examination that the seals of the two
containers in which blood stained earth and samples had been kept were
found to be tampered with.
6. The investigating officer had
admitted that he had recorded the statement of Chhotey Lal (PW-4) on
31.8.1978 as this witness was not available earlier. The case diary
interestingly was not produced during trial by the investigating
officer. The High Court found that in the absence of any definite
material to prove that the dead body was that of the deceased, the
prosecution version was rendered to that extent, doubtful. Since PW-4
resiled from his statement made earlier, the High Court examined the
evidence of PW-l in detail. With reference to her evidence, it was
noticed that her relationship with the deceased was not free from doubt.
She claimed that she was married to the deceased. But the child witness
whose evidence was otherwise found to be not sufficient to fasten the
guilt of accused, stated that she was not living with the deceased on
the relevant date. It was noted by the High Court that PW-1 from the
next day of murder was staying with one Ikram. It was noted by the High
Court that the village Chowkidar who was supposed to have searched for
the dead body, was not examined and no explanation was offered by the
prosecution for the non-examination. The High Court noted that PW-l's
conduct was totally not above board during tria1.
She filed an affidavit and an
application in the court to show that she was not aware of the incident,
as alleged. Though the High Court found that these papers were not
exhibited, yet, taking into account the admission of PW-l that she had
in fact put her thumb impression on these documents, found that to be a
factor throwing doubt on the credibility of PW-1.7. So far as Paramjeet
(PW-7) is concerned, his evidence was also found to be not reliable
because he appeared to have been tutored. He was aged about 7-8 years
when he gave the statement on 11.7.1980. The incident had occurred on
24.08.1978, i.e. nearly two years before his deposition. That means that
he was about 5-6 years old at the time of incident. The High Court, with
reference to his evidence found that the testimony he gave in court was
the result of tutoring. In these circumstances, the High Court concluded
that the prosecution has failed to establish the accusation.
8. Though learned counsel for the
State submitted that the circumstances highlighted by the prosecution
were sufficient to record conviction, we find that the High Court has
examined all the relevant aspects in detail and has recorded the
judgment of acquittal.
9. There is no embargo on the
appellate Court reviewing the evidence upon which an order of acquittal
is based. Generally, the order of acquittal shall not be interfered with
because the presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs through the web
of administration of justice in criminal cases is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt
of the accused and the other to his innocence, the view which is
favourable to the accused should be adopted. The paramount consideration
of the Court is to ensure that miscarriage of justice is prevented. A
miscarriage of justice which may arise from acquittal of the guilty is
no less than from the conviction of an innocent. In a case where
admissible evidence is ignored, a duty is cast upon the appellate Court
to re-appreciate the evidence where the accused has been acquitted, for
the purpose of ascertaining as to whether any of the accused really
committed any offence or not. [See Bhagwan Singh and Ors. v. State of
Madhya Pradesh (2002 (2) Supreme 567)]. The principle to be followed by
appellate Court considering the appeal against the judgment of acquittal
is to interfere only when there are compelling and substantial reasons
for doing so. If the impugned judgment is clearly unreasonable and
relevant and convincing materials have been unjustifiably eliminated in
the process, it is a compelling reason for interference.
These aspects were highlighted by
this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra
(AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of Gujarat (1996 (4)
Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320),
Raj Kishore Jha v. State of Bihar and Ors. (2003 (7) Supreme 152),
of Punjab v. Karnail Singh (2003 (5) Supreme 508, State of Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17) and
V.N. Ratheesh v. State of
Kerala (2006 (10) SCC 617).
10. In the instant case, we find
that the reasons indicated by the High Court for recording the order of
acquittal do not suffer from any infirmity to warrant interference. The
appeal is accordingly dismissed.
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