Allahabad High Court
State Of U.P. vs Karan Singh And Others on 10 July, 2024
Author: Siddharth
Bench: Siddharth
HIGH COURT OF JUDICATURE AT ALLAHABAD Neutral Citation No. - 2024:AHC:111968-DB AFR Reserved on: 29.3.2024 Delivered on : 10.7.2024 In Chamber Case :- GOVERNMENT APPEAL No. - 31 of 1991 Appellant :- State of U.P. Respondent:- Karan Singh And Others Counsel for Appellant:- A.G.A., Brij Mohan Singh, Gaurav Khare, Mahesh Kumar Kuntal, Rashtrapati Khare, S.C.Saxena Counsel for Respondent:- S.V. Goswami, A.K. Verma, Ajatshatru Pandey, B.P.Verma,Chandra Kumar Singh, Lalit Kumar Shukla, Rahul Chaudhary, Rajeev Goswami, S.R. Verma Hon'ble Siddharth,J.
Hon'ble Vinod Diwakar,J.
Per se Hon'ble Vinod Diwakar, J.
1. We have heard Ms. Puruhuta Lodha, Shri Vijay and Shri Prem Shanker Prasad, learned A.G.A. for the State-appellant, Shri G.S. Chaturvedi, learned Senior Counsel assisted by Shri Ajatshatru Pandey, learned counsel for the respondents, and perused the record.
2. The instant Government Appeal has been preferred against the judgment and order dated 13.9.1990 passed by learned Special/Additional Sessions Judge, Mathura in Sessions Trial No.225 of 1998, titled as State v. Karan Singh and others, arising out of Case Crime No.276 of 1987, under Sections 147, 148, 307, 302 IPC read with Section 149 IPC; and Sessions Trial No.226 of 1988 titled as State v. Kunwar Singh and others, arising out of Case Crime Nos.277 of 1987, 278 of 1987 & 279 of 1987, under Sections 25 & 4/25 of Arms Act respectively, both the cases registered at Police Station Kosi Kalan, District Mathura, in which the accused, namely, Karan Singh, Har Gulab, Padam Singh, Fateh Singh, Kunwar Singh and Lakhmi Singh have been acquitted from the charges of Sections 148, 302/149 and 307/149 IPC, whereas the accused, namely, Tara Chand, Virendra Singh, Mahendra Singh, Teji, Shiv Singh and Lal Singh have been acquitted from the charges framed under Sections 147, 302/149 and 307/149 IPC, and further the accused Lakhmi Singh, Fateh Singh and Kunwar Singh have been acquitted from the charge framed under Section 25 Arms Act.
3. Aggrieved by the acquittal of all the 12 accused, namely, Karan Singh, Har Gulab, Padam Singh, Fateh Singh, Kunwar Singh, Lakhmi Singh, Tara Chand, Virendra Singh, Mahendra Singh, Teji, Shiv Singh and Lal Singh, the State-appellant has preferred the instant appeal challenging the order of acquittal qua the aforesaid accused persons.
4. During the pendency of the appeal, the accused, namely, Karan Singh, Tara Chand, Teji @ Tej Singh, Lachhi @ Lakhmi, and Lal Singh died. Hence, the instant Government Appeal against them stands abated.
5. Succinctly, the prosecution case is that the complainant- Hudri approached the Police Station Kosi Kalan with a tehreer with regard to his brother's murder. On the basis of which the police initiated the investigation and subsequently the accused persons faced the trial. For clarity, the contents of tehreer are extracted herein below:
"सेवा में श्रीमान् थानाध्यक्ष महोदय थाना कोसी कलॉ मथुरा निवेदन है कि आज दिनांक 14.10.87 को सुबह मेरा भाई कन्नी व मेरा चचेरा भाई हेती पुत्र सुखपाल उर्फ पाला अपने खेतों से (का०फटा) घर वापिस आ रहे थे। कि जब यह दोनों नारायन के घर के सामने आये तो गिर्राज के घेर के सामने (1) करन सिंह एस/ओ० राम सिंह के हाथ में फर्शा (2) हरगुलाब एस / ओ० तेज सिंह के हाथ मे कुल्हाड़ी (3) पदम सिंह एस/ओ० गिर्राज के हाथ में फर्शा (4) फतेसिंह एस/ओ० राम सिंह के हाथ में बन्दूक 12 बोर (5) कुमर सिंह एस/ओ० भूदल सिंह के हाथ में कट्टा (6) ताराचन्द्र एस/ओ० करन सिंह (7) बीरेन्द्र सिंह एस/ओ० भूदल सिंह (8) महेन्द्र सिंह एस/ओ० गिर्राज सिंह (9) तेजी सिंह एस/ओ० रघुनाथ के हाथों मे लाठियों (10) लखमी एस/ओ० गोबिन सिंह के हाथों में फर्शा (11) शिव सिंह एस/ओ० गोविन्द सिंह व (12) लाल सिंह एस/ओ० पीतम सिंह निवासी महराना थाना बरसाना के हाथों में लाठियों लिये हुए खड़े थे। उनमे से पदम सिंह ने कहा इन दोनों को पकड़ लो और इनको जान से खत्म कर दो। आज अच्छा मौका है इन्होने हमसे मुकदमे बाजी चला रक्खी है। इस पर सभी ने एक राय होकर एक दम कन्नी व हेती को पकड़ कर करीब पौने नौ बजे अपने नौहरे में खीच कर ले गये और डूंगर के पेड़ के नीचे फर्शा लाठी बन्दूक कट्टों आदि से मारपीट करने लग कन्नी व हेती चिल्लाये तो मै व मेरे ही गॉव के बसंत व रमेश पुत्रगण नानगा व गोवर्धन सिंह एस/ओ० खूबी आदि बहुत से आदमी आ गये लेकिन उनके डर के कारण हम अपने भाइयों को नही छुड़ा सके मेरे भाई कन्नी की जान से मारकर हत्या कर दी है तथा हेती को गम्भीर रूप से घायल कर दिया है। दोनों मौके पर पड़े है। रिपोर्ट लिखकर कानूनी कार्यवाही की जावे। ता० 14.10.87 प्रार्थी हुदरी एस/ओ० मेदी गॉव दहगाँव थाना कोसी कलाँ (मथुरा) ता० 14.10.87 नि०अं० हुदरी लेखक अमीचन्द पुत्र जग्गी मल कोसी कलां मनीराम वास ता० 14.10.87 नोटः- मै एच०एम० प्रमाणित करता हूँ कि तहरीर की नकल चिक हाजा पर शब्द ब शब्द अंकित की है।
ह०अस्पष्ट एच०एम० 14.10.87"
6. On the tehreer of complainant- Hudri (PW-1), the First Information Report bearing Case Crime no. 276, under Sections 147, 148, 149, 307, 302 IPC and FIR No. 277 and 278, u/s Section 25(1)(a) and 25(1)(b) of Arms Act was registered on 14.10.1987 at P.S. Kosi Kalan, District Mathura, against the accused persons.
7. After registration of the FIRs, the police conducted the investigation and recorded the statement of the witnesses under Section 161 Cr.P.C. and filed the charge-sheet against all the 12 accused persons named in the F.I.R. viz (i) Karan Singh, (ii) Har Gulab, (iii) Padam Singh, (iv) Fateh Singh, (v) Kunwar Singh, (vi) Lakshmi, (vii) Tara Chand, (viii) Virendra Singh, (ix) Mahendra Singh, (x) Teji, (xi) Shiv Singh, (xii) Lal Singh. The Chief Judicial Magistrate took the cognizance and after complying with the provisions of Section 207 Cr.P.C., committed the case to the court of sessions for its trial.
8. The trial court framed the charges under Sections 302/149, 307/149, 147, 148 IPC against all twelve accused persons and separate charges were framed under section Section 25(1)(a) and Section 25(1)(b) of the Arms Act against accused Fateh Singh and Kunwar Singh, the same were read over and explained to the accused persons, who pleaded not guilty and claimed trial.
9. The prosecution has produced the following documentary evidence to prove its case:
"(i) Written Report dated 14.10.1987, Ex. Ka-1
(ii) FIR dated 14.10.1987 at 10:15 a.m., Ex. Ka-13 and FIR dated 14.10.1987 at 11:00 p.m., Ex. Ka-2
(iii) Recovery memo of Axe 'Ahni', Bamboo & Farsa, Ex. Ka-16
(iv) Recovery memo of blood-stained and plain earth, Ex. Ka-17 and Ex. Ka-18
(v) Recovery memo of blood-stained clothes, Ex. Ka-22
(vi) Recovery memo of S.B.B.L. Gun, Ex. Ka-1
(vii) Injury reports, Ex. Ka-2 and Ka-27
(viii) Post-mortem report, Ex. Ka-3
(ix) Permission for prosecution under Section 39 of Arms Act, Ex. Ka-8 and Ka-9"
10. Besides the above documentary evidences, the prosecution has examined the complainant- Hudri as PW-1; Ramesh as PW-2; Cousin of complainant Heti as PW-3; Dr. P.C. Vyas as PW-4; Dr. U.C. Vaishya as PW-5; S.I. Matadeen Verma as PW-6; Ct. Ashok Kumar as PW-7; Dr. R.C. Sharma as PW-8; Phool Singh as PW-9, S.I. Mohd. Zahid as PW-10.
11. Complainant Hudri- the deceased's brother - was examined as PW-1. In examination-in-chief, he reiterated the facts mentioned in the impugned FIR and stated that all the accused persons in the court are residents of his village except the accused, Lal Singh, who is a resident of village Mahrana, Police Station Barsana. The accused, Fateh Singh, is married to his real sister. Except accused Lal Singh, all the accused persons are members of one family, and their ancestors were common. Before the date of the unfortunate incident, there was previous litigation between the accused, Padam Singh, and the deceased and his brother Hudri (PW-1) with respect to the construction of the drain, and various orders were passed by the civil courts. The accused, Padam Singh, wanted to construct a drain in the field belonging to the informant Hudri (PW-1). He instituted a complaint before the Canal Magistrate for having damaged the drain. The complaint was decided in favour of the informant and his brother, Kanni- since deceased. The deceased was doing Pairvi in the said case, therefore, the accused Padam Singh, along with other accused persons, became inimical with the deceased.
12. He further deposed that in the morning of 14.10.1987, the deceased- Kanni, along with his cousin Heti, had gone to cut the green fodder from their fields, and while on return, when he reached near the Gher1 of Giriraj Singh at about 08:45 a.m., all the 12 accused persons surrounded him and his cousin- Heti. The accused Fateh Singh and Kunwar Singh were armed with guns and country-made pistols; the accused Padam Singh, Lakhmi and Karan Singh were armed with Farsa; the accused Har Gulab was armed with an axe, and the remaining accused persons Teji, Lal Singh, Shiv Singh, Mahendra, Tara and Virendra were having Laathis in their hands. The accused, Padam Singh, exhorted by having stated that today it is a good occasion to finish the deceased Kanni as he instituted a case against him for having damaged the water canal. On the exhortation of the accused Padam Singh, all the 12 accused persons attacked Kanni by having wielded their respective weapons. They dragged and took the Kanni inside the Gher of Giriraj Singh and caused severe injuries. When Heti (PW-3), the cousin of the deceased, tried to rescue him, he was also beaten and inflicted with severe injuries by all the accused persons with their respective weapons. On having raised the alarm by Kanni and Heti, the informant PW-1 Hudri, who is the real brother of the deceased Kanni, Ramesh PW-2, Basant, Goverdhan and others came there, but could not rescue Kanni and his cousin Heti due to fear of loss to their lives. Due to severe injuries, Kanni died on the spot. Heti also sustained a number of simple and grievous injuries on his person. The informant PW-1 Hudri, after having left his brother deceased- Kanni, and injured cousin Heti at the spot, went to market at the shop of one Amichand son of Jaggi Mal and dictated tehreer to him, who at that time was present at his shop. On the dictation of informant Hudri (PW-1), a written report was prepared, and thereafter, it was registered as FIR No.276 of 1987 at Police Station Kosi Kalan on 14.10.1987 at about 10:45 a.m.
13. The witness Hudri (PW-1) was put to a lengthy cross-examination by all the accused persons. Initially, the witness was put to various questions with regard to the relationship inter se between the parties to the civil litigation pending between the accused party viz-a-viz complainant party; certain cases previously lodged by the accused Padam Singh against the witness and his relatives under Section 70 of Northern Indian Canal and Drainage Act; the location of agricultural field of the accused Giriraj Singh, and the direction of the house of Giriraj Singh and a few questions about the site plan. In response to one of the questions, the witness stated that he does not know as to why the Investigating Officer has not shown the correct geography and demography of his village in the site plan.
14. Ramesh (PW-2) stated that he reached the place of occurrence after the rescue call by the deceased- Kanni and injured Heti (PW-3). He supported the prosecution's case in his examination-in-chief. In cross-examination, PW-2 has stated that he had seen the incident from the eastern side of the Gher, which fell towards the main road. The main gate of Gher was on the northern side, and it was closed by the accused from the inside. They could have entered the Gher, but he did not choose to enter because of fear of his death. After the incident, he could enter into the Gher. A lot of co-villagers also reached there by the time and opened the gate of the Gher. He knows the informant Hudri (PW-1). He further stated that Basanta, Khajan and Suresh are his real brothers. The accused, Padam Singh, had lodged a case against the deceased Kanni. Thereafter, PW-2 was asked various questions related to the civil and criminal litigations between the parties, to which he replied affirmatively. PW-2 has stated that the Investigating Officer came to the house on the date of the incident, and when the Investigating Officer came to his village, he was at his agriculture field and had seen the Investigating Officer at Gher of Giriraj Singh, the place of incident. He told the Investigating Officer that he had seen the incident and had also taken the Investigating Officer to the place of incident. Thereafter, the witness was put to several questions about the demography of the village and the neighbour's house. First, there was a maar-peet on the road, and thereafter, the accused took the deceased- Kanni and Heti (PW-3) inside the Gher, where they murdered the deceased- Kanni. On raising rescue calls by the deceased and injured, the witness, along with other co-villagers, reached the place of incident. The witness was confronted with the site plan and was asked several questions, to which he stated that he did not approach the Investigating Officer; in fact, the Investigating Officer asked questions to him.
15. Heti (PW-3) is the real brother of the deceased and was all along with him at the time of the incident. He has also received injuries on his person. He supported the prosecution's case and stated in his examination-in-chief that it was around 01:45 p.m., he along with his cousin- Kanni, after cutting the green fodder from the fields was going back to the house, and when they reached at the Gher of Giriraj Singh, all the 12 accused persons surrounded him and his cousin- Kanni. The accused Fateh Singh and Kunwar Singh were armed with guns and country-made pistols; the accused Padam Singh, Lakhmi and Karan Singh were armed with Farsa; the accused Har Gulab was armed with an axe, and the remaining accused persons viz-a-viz Teji, Lal Singh, Shiv Singh, Mahendra, Tara and Virendra were having Laathis in their hands. The accused, Padam Singh, exhorted by having stated that today it is a good occasion to finish the deceased- Kanni as he instituted a case against him for having damaged the water canal. On the exhortation of the accused Padam Singh, all the 12 accused persons attacked over Kanni by having wielded their respective weapons. They dragged and took him inside the Gher of Giriraj Singh, who is the father of accused Padam Singh and caused severe injuries. The witness further stated that he was also beaten and received injuries from all the accused persons with their respective weapons. Hudri, Basant, Ramesh and Goverdhan reached the place of the incident. The witness further stated that all the accused persons had brutally beaten them. The deceased, Kanni, was shot by a firearm. They were inflicted injuries by Laathi, Axe, and Farsa. He received injury from Laathi, Axe, and Farsa, and the deceased- Kanni sustained firearm injury and died on the spot. His medical examination was conducted twice as in the first medical report, the doctor did not mention the details of the injuries, and subsequently, on the direction of the Chief Medical Officer, a separate injury report was prepared. The witness remained in the hospital for 9-10 days. The witness says that he does not know when the accused, Lal Singh, was arrested by the police. He gained consciousness three days after the incident, and he does not know who took him to the hospital. He further states that it is hard to suggest that he was conscious when he was taken to the doctor. The accused have caused injuries to the injured by Axe and Farsa. The accused fired at the deceased with a country-made pistol and was also assaulted by Laathi, Axe and Farsa.
16. Dr. P.C. Vyas (PW-4), who examined the injuries of the witness Heti (PW-3) on 14.10.1987. The first injury report suggests the following injuries on the person of the injured- Heti:
"(i) Lacerated wound 2 cm x 0.5 cm x scalp deep vertically placed on right side forehead, 5 cm above right eyebrow. Margins lacerated, bleeds on cleaning, read colour.
(ii) Lacerated wound 4 cm x 0.5 cm x muscle deep vertically placed on back of left forearm middle part 10 cm below elbow joint.
(iii) Lacerated wound 3 cm x 05. cm x muscle deep obliquely placed on right hand with right thumb hand. Advised x-ray.
(iv) Multiple lacerated wounds five in number on front of right leg with contused swelling measuring 2.5 cm x 0.5 cm x muscle deep to 1 cm x 0.2 cm muscle deep in an area of 28 cm x 8 cm with restricted and painful movements. Advised x-ray.
(v) Lacerated wound with traumatic swelling in an area of 14 cm x 12 cm varying in size from 5.5 cm x 1.5 cm bone deep to 2 cm x 0.5 cm x bone deep with restricted and painful movements. Bleeds. Red colour Advised x-ray.
(vi) Contused swelling right shoulder 7 cm x 4 cm. Red colour. Advised X-ray."
Dr. P.C. Vyas (PW-4) opined that the injuries were fresh at the time of examination, and except injury nos.3 to 6, the injuries were simple in nature. X-ray was advised to ascertain the nature of injury nos.3 to 6. As per the witness, the injuries could have been caused by some heavy and blunt object, like the blunt side of an Axe and Farsa.
17. The witness was again medically examined on 7.12.1987 by Dr. U.C. Vaishya (PW-5), Senior Radiologist of the District Hospital, Mathura, on the direction of the Chief Judicial Magistrate. On X-ray, the witness found a comminuted fracture of the right tibia, fibula, right proximal half part and mid-distal part. He further found a comminuted fracture of the left leg, both the bones, tibia and fibula at different levels. Dislocation at the distal I.P. joint of the right thumb was also revealed. The details of the injuries are mentioned herein below:
"(i) Unhealed wound (septic) 2.8 cm x 0.7 cm x bone (over left leg distal mid third part anterior and medially having discharge in the wound.
(ii) Septic wound on the right leg medially superior aspect 2 cm x 0.4 cm x S.C. and tissues (having discharge).
(iii) Healed mark of injury (fresh red scar) 3 cm x 1.8 cm on the left knee distal part.
(iv) Scar (healed injury on right forehead), left forearm and just right hand wrist (thumb side) right leg remedially and left leg and two medially present of healed injuries."
As per opinion of the doctor, all the injuries were healed. It could not be opined as to which weapon was used to cause injury nos.1 and 2.
18. Dr. U.C. Vaishya (PW-5), the Senior Grade E.N.T. Surgeon of the District Hospital, Mathura, conducted the autopsy of the deceased on 15.10.1987 and found the following ante-mortem injuries on the person of the deceased:
"(i) Multiple LWs ranging in size from 4 cm x 1 cm x scalp deep to 1 cm x o.25 cm x scalp deep on the front of head and forehead in an area of 18 cm x 14 cm.
(ii) Two LWs 1.5 cm x 0.25 cm x bone deep, 0.5 cm x 0.25 cm x bone deep on back of left elbow.
(iii) right collar fractured.
(iv) Multiple contusion on back of whole chest, abdomen and left buttock.
(v) Contused 28 cm x 2 cm on front of right side chest and abdomen.
(vi) 3 LWs 2 cm x 0.5 cm x bone deep and rest two 1 cm x 0.5 cm x bone deep on front of left leg middle part with fracture.
(vii) Multiple abrasions on both upper exts.
(viii) Multiple abrasions on front of left knee.
(ix) Multiple firearm injuries ranging 0.75 cm x 0.5 cm x bone deep to 0.5 cm x 0.4 cm x bone deep on whole of right leg front and back side. No tattooing and charring. No F.B. present in muscle tissue."
The doctor opined that the death of the deceased was caused by coma as a result of ante-mortem injuries. No pellets were recovered from the body of the deceased. There was a firearm injury on the right leg, which is not fatal, and it could have been caused from a distance of six feet. The deceased died because of injury no.1, which was caused on his head.
19. S.I. Matadeen Verma (PW-6) deposed that on 14.10.1987, he was posted at Police Station Kosi Kalan, and in his presence, informant- Hudri (PW-1) brought a written report and on the basis of which a chik was prepared, and he has endorsed his signatures on the chik. After taking necessary documents, he proceeded to the place of incident, where he examined the dead body of the deceased and prepared the Panchayatnama and other necessary documents. He made a seizure of the Axe, and Farsa, which was found lying near the dead body. He further made a seizure of blood-stained soil and recorded the statement of the witnesses. On the basis of the information from the informer, he conducted a raid at around 06:00 p.m. and arrested two accused persons at 08:00 p.m. Thereafter, recoveries were effected in the following manner:
"S.B.B.L. country-made pistol with 12 bores and four cartridges was recovered from accused Fateh Singh; a country-made pistol with 12 bores and two cartridges from Kunwar Singh; Farsa from accused Lakhmi, and Laathi was recovered from the accused Karan Singh, Har Gulab, Tarachand, Virendra, Mahendra, Teji, and Lal Singh. After collecting all the materials and upon concluding the investigation against the accused persons, he filed the charge sheet on 24.10.1987 under Sections 147, 148, 307 and 302 IPC against the accused-appellants."
20. The Investigating Officer was questioned about the place of the incident and the village's demography, to which he supported the prosecution's case. Further, the witness was asked various questions regarding the site plan, to which he replied in accordance with section 161 Cr.P.C statement.
21. Dr. R.C. Sharma (PW-8) has stated that he was posted as a Senior Radiologist in District Hospital, Mathura and conducted the X-ray of the injured Heti (PW-3) on 15.10.1987.
22. Constable Phool Singh (PW-9) has stated that he was posted at Police Station Kosi Kalan at the time of the incident, and he is a witness to the inquest report. He stated that the inquest proceedings were conducted in his presence, and he along with Ashok Kumar, had taken the deceased to Mathura by Govind Singh's tractor for the post-mortem. After collecting the necessary documents, the same was submitted to the police station.
23. S.I. Mohd. Jahid (PW-10) stated that he was posted as S.I.-II in the Police Station Kosi Kalan at the time of the incident, and he is the witness to recovery and has supported the prosecution's case.
24. The incriminating material produced by the prosecution during the trial was then confronted by the accused persons for recording their statements under Section 313 Cr.P.C. The accused persons have stated that police have falsely implicated them due to previous enmity between the parties to save the real culprit.
25. The trial court discussed the evidence adduced by the prosecution in support of each of the circumstances at great length and held that the prosecution could not satisfactorily prove any of them, and therefore, acquitted all the accused persons. The State and complainant both preferred the appeal before this Court challenging the impugned judgment and order of acquittal dated 13.9.1990.
26. Learned counsel for the complainant vehemently espoused the cause of the complainant and argued that the order passed by the trial court is cryptic, perverse and untenable, rendering the impugned judgment unsustainable in the eyes of law in presence of overwhelming evidence in the form of eye-witnesses, injured, medical reports comprising injury reports, post-mortem report and recovery of weapons, used by the accused for committing the crime. In support of his contentions, learned counsel for the complainant relied upon the decisions of the Supreme Court in Laxman Singh & Ors v. State of Bihar2; and Ravindra Kumar & Ors v. State of Punjab3.
26.1 The trial court gravely erred in not taking into consideration the unimpeachable testimony of eye-witnesses, Hudri (PW-1), Ramesh (PW-2), and injured- Heti (PW-3), which is cogent, consistent, reliable, corroborating and establishes the guilt of accused persons beyond all reasonable doubts. All the eye-witnesses and injured PW-3 are reliable and trustworthy witnesses. It is submitted that all the aforesaid three witnesses were thoroughly cross-examined, and on cross-examination, nothing adverse to the prosecution's case has been brought on record by the accused.
26.2 The place of occurrence, recovery of the dead body, recovery of weapons used, and injury report of the injured Heti clearly establish the case of prosecution, and the trial Court completely ignored to delve into these material facts.
26.3 The injured PW-3 was examined twice; firstly on 14.10.1987 by Dr. P.C. Vyas, who was examined as PW-4, and subsequently on 15.10.1987 by Dr. U.C. Vaishya, who was examined as PW-5, on the direction of Chief Judicial Magistrate. Both the injury reports support the prosecution's case, and there was no reason for the trial court to disbelieve the testimony of PW-4 and PW-5.
26.4 Right from the beginning, the accused were named in the F.I.R., and their role and complicity have been established by trustworthy, reliable and cogent evidence. All the accused persons formed the unlawful assembly in furtherance of the common object to commit the murder of deceased- Kanni. So far as the conviction under Section 147 IPC is concerned, the presence of all the accused persons at the time of the incident and their active participation has been established and proved by the prosecution by examining the witnesses as PW-1, PW-2 and PW-3. The accused formed the unlawful assembly at the Gher of Giriraj Singh and committed the offence.
26.5 The evidence of the injured witness has greater evidentiary value; unless compelling reasons exist, their statements are not to be discarded lightly. It is further argued that the minor discrepancies do not corrode the credibility of otherwise acceptable evidence. In cases where there are large number of assailants, it can be difficult for the witnesses to identify each assailant and attribute a specific role to him; moreover, when the incident concluded within a few minutes, it is natural to the exact version of the incident, each minute detail meticulously is not possible by an individual4. Therefore, the deposition of injured witnesses should be relied upon unless there are strong grounds for rejection of his evidence on the basis of major contradictions and discrepancies5.
26.6 The PW-3 has clearly stated that the accused persons dragged him and the deceased- Kanni into the Gher of Giriraj Singh and caused injuries to them, and as a consequence thereof, the deceased died on the spot, whereas the witness received severe injuries on his person and remained hospitalised for almost ten days and could only gain conscious after three days. The said incident was also witnessed by PW-1 and PW-2.
26.7 The motive is well established from the evidence of PW-2, who states that there was long-standing litigation between the parties regarding the construction of the drain, therefore, the motive is proved beyond reasonable doubt.
26.8 There was no inordinate delay in registration of the F.I.R. The incident occurred at 08:45 a.m. on 14.10.1987, and the complaint was registered at 10:15 a.m. on the same date. The delay in registration of the F.I.R. by itself cannot be a ground to doubt the prosecution's case. There can be a variety of genuine causes for delayed registration of F.I.R. It's a common rule in India, and lapse of time, if any, cannot be attributed to fatal to the prosecution's case.
26.9 The accused were arrested on the same day, and pursuant to their pointing out, recoveries were effected from them.
27. Per-contra, learned counsel for the accused-respondents contended that the eye-witnesses PWs 1, 2 and 3 were interested witnesses, being the brother and close relatives of the deceased, therefore, their testimonies were rightly rejected by the trial court. There was a possibility of the complainant group to falsely implicating the accused, who are resident of the same village and born out of a common ancestry. Thus, the chances of false implication are greater being admittedly proven indulged in long pending litigation. The approach of the trial court was justified and has strictly proceeded and appreciated the evidence in the manner, the law laid down by the Supreme Court.
27.1 The trial Court rightly disbelieved the statements of PW-1, PW-2, and PW-3 regarding motive, and raised serious suspicion regarding the recovery made under Section 27 of the Evidence Act.
27.2 The trial Court order is a well-merited judgment, and this Court ought not to re-appreciate the evidence unless and until the parameters of Ramesh Babulal Doshi v. State of Gujarat6 are met. The appellate court hearing an appeal against acquittal must first report its conclusion on the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and then re-appreciate the evidence to arrive at its own conclusion. The appellate court, while hearing the appeal against the judgment of acquittal, must satisfy itself that the approach of the trial court was patently illegal and its conclusion is unsustainable in the eye of law.
27.3 The FIR is ante timed, and there is a gross delay in the registration of the F.I.R. The prosecution has not satisfactorily explained the delay.
27.4 The injuries of injured- Heti (PW-3) are self explained to demonstrate that the same has not been caused in the manner, which has been stated to be inflicted on the injured in the manner stated by PW-1, PW-2 and PW-3.
27.5 There is a huge and material contradiction between the statements of injured- Heti (PW-3), the complainant and eye-witness- Hudri (PW-1), and Ramesh (PW-2). PW-1 stated that the accused Fateh Singh was carrying a gun; Kunwar Singh was carrying country-made pistol; Padam Singh and Lakhmi were carrying Farsa; Har Gulab had an Axe; Teji, Lal Singh, Shiv Singh, Mahendra, Tara Chand and Virendra were carrying Laathis, whereas sole injured- Heti (PW-3) states that the accused Mahendra, Virendra, Tara, Shiv Singh, Teji and Lal Singh were carrying Laathi; accused Fateh Singh was carrying gun; Kunwar Singh was carrying country-made pistol; accused Padam Singh, Lakhmi and Karan Singh were carrying Farsa and accused Har Gulab was carrying Axe. Likewise PW-2 Ramesh, an eye-witness, stated that the accused Karan Singh, Padam, and Lakhmi were carrying Farsa; accused Fateh Singh was carrying a gun; Kunwar Singh was carrying a country-made pistol; Har Gulab was carrying an Axe; and Tara, Virendra, Mahendra, Shiv Singh, Teji and Lal Singh were carrying Laathis. On examination of the testimony of PW-1, PW-2 and PW-3 qua the allegations levelled in tehreer and deposition of PW-6, the I.O. shows significant contradiction so far the possession of the weapons is concerned, which was sufficient to disbelieve and, thus, discards the testimony of the aforesaid witnesses. More particularly, in light of the facts, the accused and witnesses are connected to each other through common ancestry and resident of the same village. Therefore, it can safely be presumed that the witnesses ordinarily would not commit the mistake of identifying the name of the accused and the nature of the weapon carried by them in a case of a broad daylight murder.
27.6 The injury reports dated 14.10.1987 and 15.10.1987 of the injured witness Heti (PW-3) show the significant variations so far as the injuries are concerned. Dr. P.C. Vyas (PW-4), who examined the injured Heti on 14.10.1987, stated that all the injuries were simple in nature. No internal part was damaged. There was no incised or penetrated wound, and the time of injury was approximately 04:00 a.m. (± one or two hours). He also stated that no injury from dragging was observed. Whereas the testimony of Dr. R.C. Sharma (PW-8), Senior Radiologist, who conducted the examination of injured Heti on 7.12.1987, on the direction of Chief Judicial Magistrate, also observed significant variation in the nature of injuries.
27.7 Not a single injury of the incised wound by a sharp edged weapon was observed by the doctor on PW-3, and there was no blackening or tattooing observed on PW-3 and the deceased.
27.8 No pellet or used cartridges were recovered from the place of the incident.
27.9 The Investigating Officer could not prove the items and details mentioned in the site plan in accordance with the law.
28. As the case in hand is a case of reversal of acquittal, it is prudent to have a bird's eye view of the judgment passed by the Supreme Court in this regard. The appellate Court is usually reluctant to interfere with a judgment acquitting an accused on the principle that the presumption of innocence in favour of the accused is reinforced by such a judgment. The above principle has been consistently followed by the Constitutional Court while deciding appeals against acquittal by way of Article 136 of the Constitution or appeals filed under Section 378 and 386 (a) Cr.P.C.7
29. The Supreme Court in Doshi's case (supra) has observed that the High Court must examine the reason given by the trial Court for recording their acquittal before disturbing the same by re-appraising the evidence recorded by the trial court. For clarity, para 7 is extracted herein below:
" Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellant Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellant Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellant Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not."
30. The Supreme Court in Sadhu Saran Singh's8 case has observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity.
31. The Supreme Court in Basheera Begam's9 has held that the burden of proving an accused guilty beyond all reasonable doubt lies on the prosecution. If, upon analysis of evidence, two views are possible, one which points to the guilt of the accused and the other which is inconsistent with the guilt of the accused, the latter must be preferred. Reversal of a judgment and other of conviction and acquittal of the accused should not ordinarily be interfered with unless such reversal/acquittal is vitiated by perversity. In other words, the court might reverse an order of acquittal if the court finds that no person properly instructed in law could have, upon analysis of the evidence on record, found the accused to be "not guilty". When circumstantial evidence points to the guilt of the accused, it is necessary to prove a motive for the crime. However, motive need not be proved where there is direct evidence. In this case, there is no direct evidence of the crime.
32. The Supreme Court in Kali Ram's10 case has observed as under:
"25. Another golden thread which runs through the web of the 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 other to his innocence, the view which is favourable to the accused should be adopted. This principle has a special relevance in cases wherein the guilt of the accused is sought is to established by circumstantial evidence."
33. The Supreme Court again examined in State of Odisha v. Banabihari Mohapatra & Ors11 the effect of the probability of two views in cases of appeal against acquittal and held 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.
34. The Supreme Court in Sujit Biswas v. State of Assam12 has reiterated the position that suspicion, however strong, cannot replace proof. An accused is presumed to be innocent unless proven guilty beyond a reasonable doubt.
35. In the background of the law discussed herein above, we will examine the trial court's findings and evidence adduced during the trial by the witnesses to test the legality and validity of the impugned order.
36. It is an admitted position that; (a) deceased- Kanni was found dead in the Gher of Giriraj Singh and Dr. U.C. Vaishya (PW-5), conducted the post-mortem of the deceased on 15.10.1987 at District Hospital, Mathura- a day after the date of incident, has observed that the deceased had suffered injuries outlined herein; (i) multiple LWs ranging in size from 4 cm x 1 cm x scalp deep to 1 cm x 0.25 cm x scalp deep on the front of head and forehead in an area of 18 cm x 14 cm, (ii) two LWs 1.5 cm x 0.25 cm x bone deep, 0.5 cm x 0.25 cm x bone deep on back of left elbow, (iii) right collar fractured, (iv) multiple contusion on back of whole chest, abdomen and left buttock, (v) contused 28 cm x 2 cm on front of right side chest and abdomen, (vi) three LWs 2 cm x 0.5 cm x bone deep and rest two 1 cm x 0.5 cm x bone deep on front of left leg middle part with fracture, (vii) multiple abrasions on both upper ext, (viii) multiple abrasions on front of left knee, (ix) multiple firearm injuries ranging 0.75 cm x 0.5 cm x bone deep to 0.5 cm x 0.4 cm x bone deep on whole of right leg front and back side. No tattooing and charring. No F.B. present in muscle tissue; (b) PW-3 Heti, an injured witness, stated in his examination-in-chief that he has suffered injuries from Laathi, Axe and Farsa, and he remained hospitalised firstly in District Hospital Mathura for 3-4 days, and thereafter, in a Private Nursing Home for next 9-10 days. He gained consciousness after three days and does not know, who had admitted him to the hospital, and he had not suffered any firearm injury. He was assaulted by all accused with Axe, Farsa and Laathi for almost three minutes. The injury report was first prepared by PW-4 Dr P.C. Vyas on 14.10.1987, and thereafter, by PW-8 Dr R.C. Sharma, Senior Radiologist, on 7.12.1987. On cross-examination of the accused, Lal Chand, this witness has said, "all the injuries of injured were simple in nature as no internal part was damaged, and therefore, there was no threat to the life of the injured" he again stated that no incised and penetrated wound was observed on the person of injured. PW-8 Dr. R.C. Sharma, who examined the injuries of injured Heti on 7.12.1987, opined that all the injuries were healed, and no definite opinion was given about the nature of the weapon that has caused the injuries. The wound had developed septic, and no specific reason could be attributed to the same.
37. To reach a logical conclusion, it would be safe to examine the trial court's finding in light of the contents of the tehreer, the testimony of PW-1, PW-2 and PW-3, the recoveries of weapons recovered by the Investigating Officer from the accused persons, and the injury suffered by deceased and injured- Heti (PW-3).
38. Given the nature of the fatal blow and injuries sustained by the deceased Kanni @ Karan Singh and the injuries inflicted on injured- Heti (PW-3), it is proved that the deceased Kanni met with homicidal death and PW-3 Heti sustained injuries in the same incident allegedly occurred on 14.10.1987.
39. All the accused have challenged the allegation of the incident on the ground whether the incident had happened in the manner as suggested by the prosecution and the accused persons participated in the crime as mentioned in the tehreer and subsequent thereto, whether the recoveries of the weapon was effected in the manner as suggested by initially in tehreer, and thereafter, shown in recovery memo dated 14.10.1987, and subsequently, stated by PW-1, PW-2 and PW-3, who all are eye-witnesses of the incident and closely related to each other.
40. The trial court finds that there is no dispute or challenge on either side about the place of the incident. It is the prosecution's case that the incident happened in the Gher of Giriraj Singh, the father of Padam Singh, and there is consistent evidence to this effect.
41. The prosecution's case is that the incident happened on 14.10.1987 at about 08:55 p.m. when the deceased- Kanni, along with his cousin PW-3 Heti, was coming to the village after having cut green fodder from their fields and reached near the house of one Narayan, he and his brother were surrounded, dragged and taken inside the Gher and caused injuries by means of weapons carried by the accused persons. Deceased- Kanni sustained fatal injuries and died on the spot, whereas injured Heti sustained severe injuries and hardly could survive.
42. The accused seriously challenged the time and the manner of commission of the offence as adduced by the eye-witnesses. The defence case is that the deceased and the injured PW-3 were attacked by some unknown assailants in the wee hours of 14.10.1987, and since the accused, Padam Singh, had a long-standing civil dispute with the deceased, and therefore, the accused has been falsely implicated.
43. To supplement their defence, the accused relied upon Ex. Kha-1, which is the certified copy of the complaint dated 21.3.1987 lodged by Padam Singh son of Giriraj Singh, one of the accused against deceased Kanni @ Karan Singh, PW-1 Hudri- complainant, PW-3 Heti- injured, Tulli and Pala, both sons of Lohrey; Basant, Mahesh, Khajan and Suresh, all sons of Nanga- all mentioned as eye-witnesses in the F.I.R. Ex. Kha-1 in the court of Special Judicial Magistrate, Upper Canal Division, Agra alleging that the deceased and other persons had caused damaged to their drain, and the same was decided on 23.9.1988. It also appears from the record that the deceased and his cousin were convicted under Section 17 of the Northern India Canal and Damage Act, 1873 and sentenced to till rising of the court. An appeal was also preferred to vide Criminal Appeal No.119 of 1988, and the same was dismissed vide judgment dated 22.5.1989. The certified copy of the judgment dated 22.5.1989 is exhibited as Ex. Kha-3. Likewise, there were other litigation pending between the parties under the various provisions of IPC, the Cattle Trespass Act, an Original Suit No.783 of 1987, etc. between the parties.
44. After giving thoughtful consideration to the documents exhibited by the accused in support of their plaint and taking into consideration the fact that the deceased- Kanni had also initiated a complaint against accused Padam Singh, Mahendra, Fateh, Karan Singh, Teji, Kunwar Pal, Virendra, Tara, Har Gulab, Lakhmi and Siddhi indicates that the relationship between the accused persons and the complainant side were acrimonious and there has been bad blood among the parties. It is a settled proposition that enmity is a double-edged weapon and cuts both ways. Therefore, the oral testimony of eyewitnesses needs to be scrutinised cautiously and with great circumspection.
45. The net cumulative effect of the deposition of PW-1, PW-2 and PW-3 is that the deceased and injured PW-3 Heti sustained severe injuries from the sharp-edged weapon (Farsa and Axe) and Laathi by the continuous assault of accused persons for three minutes. The accused persons gave numerous blows to the deceased and injured Heti with sharp-edged weapons, and additionally, 5-6 shots were also fired from close range. The deceased- Kanni died on the spot, whereas the injured PW-3 gained consciousness after three days and remained hospitalised for 9-10 days. All the eye-witnesses, including the Investigating Officer PW-6 and his companion PW-7 and PW-9 Constable Ashok Kumar and Constable Phool Singh respectively, deposed that an Axe and a Farsa- a sharp-edged weapon, stained with blood, were seized vide seizure memo Ex. Ka-16 from the place of incident, i.e. near the deceased body.
46. On careful examination of the testimony of PW-4 Dr. P.C. Vyas, who examined injured- Heti on 14.10.1987, PW-5 Dr. U.C. Vaishya, who conducted post-mortem of deceased- Kanni and PW-8 Dr. R.C. Sharma, Senior Radiologist, who again examined injured Heti on 7.12.1987, it is concluded by the trial court that; (i) PW-5 Dr. U.C. Vaishya conducted the autopsy of deceased on 15.10.1987 at 03:30 p.m. and the autopsy report Ex. Kha-3 suggests not a single wound on the deceased by a sharp-edged weapon noticed; (ii) single firearm injury of multiple pellets ranging from 0.5 cm x bone deep to 0.5 cm x 0.4 cm x bone deep on the whole of the right leg front and back side were found; (iii) no tattooing, charring and no foreign body was found in the muscle tissue of the deceased; (iv) the firearm injury was on the right leg of the deceased and did not prove fatal. On the basis of the testimony of PW-5 and careful examination of the autopsy report, it appears to the trial court that the injuries caused by firearms were superficial in nature.
47. On examination of the testimony of the injured- Heti PW-3, trial court observed that the injured witness did not sustain even a single injury on their person by sharp-edged weapon, even though there is positive evidence by the eye-witnesses that accused Padam Singh, Lakhmi, Har Gulab and Karan Singh were carrying Farsa and Axe and assaulted the injured witness continuously for three minutes. It reflects that no blow was given by the sharp-edged weapons on the dead body of the deceased and injured- Heti. Therefore, there was no active participation of the accused Padam Singh, Lakhmi, Har Gulab and Karan Singh in the said incident.
48. As per the testimony of injured PW-3, the accused Fateh Singh and Kunwar Singh were carrying guns and country pistols, respectively, but the Investigating Officer did not recover even a single used cartridge, bullet or pellet on his reaching at the spot at 11:00 a.m., on the same day. The testimony of PW-2 Ramesh- an eye-witness, who has seen the incident from 15-20 paces, suggests that two gunshots hit the deceased- Kanni on his right leg; each was fired from a gun and country-made pistol. The fire was shot at a distance of 5-6 pace. Whereas PW-3 stated that initially, the injured were attacked by an Axe, Farsa and Laathis. Thereafter, fire was shot at the deceased- Kanni, and the man who shot the fire was 4-5 paces away from the deceased. The trial court observed that the medical evidence adduced by PW-4, PW-5 and PW-8 is contrary to the deposition of PW-2 and PW-3. It is the prosecution's case that the accused, Fateh Singh, was armed with a 0.12 bore gun, and the accused, Kunwar Singh, was armed with a country-made pistol, but when the witness was put to cross-examination showed ignorance about the bore of the gun and also could not attribute the specific role of accused Fateh Singh and Kunwar Singh.
49. The Investigating Officer S.I. Matadeen was examined as PW-6 who, after having dispatched the body of the deceased, conducted a search of the accused persons and, at 06:00 p.m., on the same day, arrested all 12 accused from the tube-well of accused Padam Singh and recovered Laathis at the pointing out of accused Karan Singh, Har Gulab, Tara Chand, Mahendra Singh, Teji Singh, Shiv Singh and Lal Singh, whereas the FIR states that the accused Karan Singh was carrying Farsa and accused Har Gulab was carrying Axe. The FIR suggests that the accused, Padam Singh, was carrying Farsa, whereas no weapon has been shown to be recovered by the Investigating Officer on the pointing out of the accused. Likewise, in the case of accused Virendra Singh, no weapon was recovered at his pointing out. On examination of the testimonies of PW-1, PW-2, and PW-3 in the light of the testimony of PW-6 S.I. Matadeen, material contradictions have been observed by the trial court, so far as recovery of respective weapons is concerned from the accused persons.
50. The trial court observed that; (i) litigation between the parties was going on for the last 4-5 years, and there was no immediate motive for the commission of the alleged offence. In a case of direct evidence based on account of evidence of eye-witnesses, the absence of motive is not significant for awarding conviction but, at the same time, assumes significance when there are greater chances of false implication of the entire family contrary to the scientific and medical evidence at the behest of the complainant, to settle the personal score; (ii) right from the beginning, the prosecution case is that all the 12 accused took active participation in the commission of the offence. The accused Padam Singh, Karan Singh, and Lakhmi were carrying a sharp-edged weapon; accused Fateh Singh and Kunwar Singh were carrying 12 bore guns, and country made pistol respectively, whereas other accused were carrying Laathis, but no injury was observed in medical evidence, which stated to be caused by sharp-edged weapons, and as to who used the blunt or sharp-edged weapon to cause injuries; (iii) the mode and manner of the arrest of the accused persons on the same day from the tube-well of one of the co-accused is highly unbelievable, unprovable and seems an artificial. The arrest of accused Lal Singh, who is a resident of village Mahrana, 8-10 Kosh from the place of the incident, also appears to be artificial; (iv) accused Tara Chand and Virendra Singh were minors at the time of the incident and High School mark-sheet issued by the Educational Board, Allahabad was brought on record as Exs. Kha-7 and Kha-8. Accused Tara Chand was 13 years, 3 months, and 24 days and the accused Virendra Singh was 13 years, 5 months and 4 days on the date of incident; (v) minor accused Tara Chand is the son of accused Karan Singh, and it does not stand for the reason that a father would take his minor son to participate in such heinous offence. Similarly minor Virendra Singh was the son of Bhupendra Singh, who is the brother of accused Kunwar Singh, the same reason would also stand for him; (vi) the scriber of the FIR, the writer of the G.D. entry and the chik FIR at the police station were not produced by the prosecution, which strengthen the case of defence that FIR is ante-time, also for the reason that the FIR was registered after much deliberation with a shop-keeper, who was present at his shop in the market and there was no reason for the complainant to first go to the market and get the tehreer scribed, and thereafter return to the police station and get the FIR registered. The tehreer could have been scribed by any of the co-villagers, who were present at the time of the incident; (vii) it is unnatural behaviour of the PW-1 Hudri, who left the injured PW-3 in an unconscious state to get a tehreer scribed by a person, who was present at the shop in the market. No responsible and reasonable person leave his brother in such a critical condition and proceeded to register the FIR; (viii) there is overwriting and interpolation on the inquest report with respect to the date and time of the inquest proceedings; (ix) there is a material contradiction in the time of conclusion of the inquest proceedings, recording of statement of PW-7 Constable Ashok Kumar and PW-9 Constable Phool Singh, so far as the dispatch and taking of the deceased body to the hospital and Police Headquarter are concerned; (x) PW-2 Ramesh had all along with the deceased and his brother PW-3 to support their litigation, therefore, his testimony smacks doubt and could not be believed in the manner the witness has adduced it, (xi) the trial court concluded not to accept the prosecution's case against the accused persons as alleged to have been committed. The cumulative effect of the prosecution's evidence is that the prosecution could not establish the time and the mode and manner of the incident, as suggested, beyond reasonable doubt. The medical officer PW-4 Dr. P.C. Vyas, who examined the injured Heti PW-3, has opined that the injuries could have been caused at around 04:00 a.m., and a similar opinion has been given by PW-5 Dr. U.C. Vaishya, who conducted the autopsy of the deceased- Kanni.
51. The 3-Judge Bench of the Supreme Court in Balaram's13 case again reiterated the well-established law that there are three types of witnesses: (i) one who is wholly reliable, (ii) one who is wholly unreliable and lastly, (iii) one who is neither wholly reliable nor wholly unreliable and placed the reliance upon landmark decision of Vedivelu Thevar v. State of Madras14. So far as the first two scenarios are concerned, the testimony of the witnesses can be wholly accepted or discarded, but with respect to the third scenario, where the testimony is partly reliable or partly unreliable, the Court faces difficulty, then the court is required to separate the chaff from the grain to find the genesis of the incident.
52. There is another canon of the criminal jurisprudence with respect to the appreciation of the evidence that the suspicion, however strong, cannot take the place of proof. In the instant case, the incident was taken on 14.10.1987, in which one person died on the spot, and another had received severe injuries and remained unconscious for 3 days, as per the testimony of an injured witness. The incident was seen by PW-1, PW-2 and PW-3, who is himself injured in the incident. Admittedly, there was a long-standing litigation between the parties, and numerous cases were filed and contested, therefore, possibility of false implication cannot be ruled out. Its again a admitted and proved fact that the accused Tara Chand and Virendra Singh were minors at the time of the incident. The testimony of injured PW-3 and eye-witnesses PW-1 and PW-2 does not corroborate with the medical evidence. There was long-standing bad blood between the parties, a major contradiction in the mode and manner of recovery of weapons has been effected from the accused, and pursuant to it, the role assigned are sufficient to hold that the offence has not been committed in the manner as has been explained by the prosecution, and on taking a cumulative effect of the testimonies of the PW-1, PW-2, PW-3, PW-4, PW-5 and PW-8 suggest the probability of two views and if two views on the evidence adduced are suggestive, one pointing to the guilt of accused and the other his innocence, the view in favour of the accused should be adopted. Moreover, applying the laid down text in Doshi's case (supra), we don't find any manifest error in the trial court's approach in acquitting the accused.
53. We find it difficult to accept the testimony of PW-1, PW-2 and PW-3 in the manner the same has been deposed before the trial court. We consider that the testimony of PW-1, PW-2 and PW-3 would come in the third category of neither wholly reliable nor wholly unreliable for the reasons recorded herein above. Therefore, the contesting accused are entitled to the benefit of the doubt.
54. As a result, the Government Appeal No.31 of 1991, arising out of impugned judgment and order dated 13.9.1990 passed by learned Special/Additional Sessions Judge, Mathura in leading Sessions Trial No.225 of 1998 titled as State v. Karan Singh and others, is devoid of merits, and is accordingly dismissed, and thus, the impugned judgment and order dated 13.9.1990 passed by the learned Special/Additional Sessions Judge, Mathura in the aforesaid sessions trial is upheld.
Order Date :- 10.7.2024
Anil K. Sharma
(Vinod Diwakar, J.) (Siddharth, J.)