Mahtab Singh & Anr vs State Of U.P

4 with a knife from back side, the deposition of PW-2 was that Mahtab Singh inflicted knife injury to Ganga Singh was from front side.

(ii) Both the eye witnesses are interested witnesses. PW-1 is a real brother of deceased and PW-2 is a deceased's co-brother.

(iii) The identification of the accused persons by PW-1 and PW-2 in the dark night was highly improbable and doubtful. No evidence much less reliable evidence of burning lantern and light from the electric bulb was produced. No evidence that it was moonlit night.

(iv) Rajveer from whose shop Ganga Singh purchased bidi has not been examined by prosecution; even his statement under Section 161 Cr.P.C. was not recorded. The burning lantern from his shop was not seized by the investigating officer.

(v) The lantern which was seized from the shop of Balbir was not produced before the Court.

(vi) The presence of PW-2 was highly unnatural. He is resident of Nagala Kulu. His statement that he came to Ganga Singh's Flour Mill for grinding at night (9.00 P.M.) does not inspire confidence as the Flour Mill is situated in different village. His conduct of leaving the place of occurrence immediately after the incident makes his presence at the time of incident highly doubtful.

PW-2 neither accompanied Ganga Singh to the Primary Health Centre nor accompanied PW-1 to the police station.

(vii) Asarfilal who was present at the time of incident and who accompanied Ganga Singh to Primary Health Centre has not been examined although his statement u/s 161 Cr.P.C. was recorded.

(viii) The recovery of knife, shirt and bandi (all blood stained) from the house of A-1 at 4.30 P.M. immediately after his arrest at 4.00 P.M. on 29.09.1990 is highly doubtful as police raided the house of A-1 from 6.00 A.M. to 3.30 P.M. on September 29, 1990 number of times and offending

5 article was not found. No memo of disclosure statement of A-1 prepared.

6. The High Court, in appeal, however, formed

entirely different opinion. The High Court principally

recorded the following reasons for upsetting the

judgment of acquittal:

(i) The evidence of PW-1 and PW-2 was clinching and could not have been rejected. The contradictions in their evidence were insignificant.

(ii) The FIR was lodged barely 45 minutes after the incident ; the distance of police station being one furlong from place of incident and the presence of PW-2 was mentioned in the FIR itself.

(iii) PW-1 and PW-2 were sitting under the thatched roof near the Flour Mill and there being no obstruction between that place and the place of incident which was about 40 paces away, it was not improbable for PW-1 and PW-2 to watch the incident as lantern was burning at the shop of Balbir (8 paces away). There was no possibility of mistaken identity, as A-1 and A-2 were not unknown to PW-1 and PW-2.

(iv) Non-production of Asarfilal has been explained by PW-1 that he had crossed over to the side of the accused and did not want to support the prosecution case.

(v) The recovery of blood stained knife and clothes from the house of A-1 was not liable to be rejected as recovery was proved by public witness PW-7.

6

7. The core question that must be answered

is : whether the prosecution story is worth credence and

whether the prosecution has sufficiently proved its case

against the accused beyond reasonable doubt.

8. Dr. Manohar Singhal (PW-4) conducted

autopsy of the dead body on September 29, 1990 at

about 3.45 P.M. He found the following ante-mortem

injury on the dead body of Ganga Singh :

Stab wound 3 cm x 1.5 cm chest cavity deep over left side of neck, 7 cm below and medial to interior angle of left scapula and 8 cm outer to the mid line. Obliquely placed. Upper angle sharp. Margins clean cut and inverted.

PW-4 has deposed that Ganga Singh had died due to

shock and haemorrhage as a result of ante-mortem

injury sustained by him.

9. From the autopsy report and the testimony of

PW-4, it can reasonably be held that death of Ganga

Singh was homicidal.

7

10. The incident occurred on September 28, 1990

at 9.00 P.M. Ganga Singh (deceased) had gone to betel

shop of Rajveer to purchase bidi. While he was

returning, only few steps away, the incident is said to

have occurred. As a matter of fact, PW-1 has admitted

in his deposition that Rajveer's shop was hardly 2-3 steps

away from the place of occurrence. But strangely,

despite availability, Rajveer's statement was neither

recorded under Section 161 Cr.P.C. nor he was tendered

in examination before the Court. According to

prosecution case, a lantern was burning at Rajveer's

shop and it was from the light of that lantern that PW-1

and PW-2 could see the culprits. The Investigating

Officer (PW-6), even did not seize the lantern from

Rajveer's shop. The omission on the part of PW 6 in not

recording the statement of Rajveer and not seizing the

lantern from his shop is not innocuous; rather the very

genesis of the crime has been rendered doubtful and full

of suspicion. The trial court considered this aspect as

one of the main reasons in not believing the prosecution

case and acquitted the accused. However, the High

8 Court ignored and overlooked this aspect altogether. In

our view, non-examination of Rajveer in the

circumstances is destructive of the substratum of the

prosecution story.

11. One of the main reasons given by the High

Court in upsetting the judgment of acquittal is that FIR

was lodged barely 45 minutes after the incident; the

distance of police station being hardly one furlong from

the place of occurrence. High Court, however, failed to

consider a very material aspect that despite the fact that

police station was situated close and visible from the

place of incident, yet PW-1 did not go immediately to

police station to report but he first went to Charan Singh

to have a written report prepared and then went to the

police station with written report. The first version of the

incident could have been reported at the police station

within five minutes of its occurrence. The fact that PW-1

took 45 minutes in reporting the incident at the police

station rather creates doubt about the truthfulness of the

prosecution case and does not rule out false implication

9 of the accused against whom PW-1 had grudge due to

some civil dispute between them.

12. The evidence of PW-1 about sufficient light

from the electric pole and from the lantern at Balbir's

shop is again highly doubtful. The Investigating Officer

(PW-6) in his testimony stated that neither in FIR nor in

his statement PW-1 told him about the electric pole at the

place of incident. PW-6 admitted that electric pole has

not been shown in sketch prepared by him. About the

light from lantern at the shop of Balbir, although the said

lantern is said to have been seized by PW-6 but

surprisingly that lantern was not produced during the trial

before the court. PW-6 also admitted that PW-1 did not

tell him that it was a moonlit night. In these

circumstances, the evidence of PW-1 that he witnessed

the incident further becomes doubtful as admittedly he

was sitting under thatched roof about 40-45 paces away

from the place of incident. It is true that the evidence of

PW-1 being brother of the deceased could not have

been justifiably thrown out as an interested witness but in

1 0 the backdrop of totality of his evidence, in our considered

view, his testimony could not have been safely relied

upon and the trial court cannot be said to have committed

any error in this regard. The vital omissions in his

testimony also shake the trustworthiness of this witness.

13. The evidence of PW-2 is no better. His very

presence at the time of incident is not only doubtful but

also highly unnatural. He is not the resident of Village

Kampil where the incident occurred; he resides at Village

Kullu Nagla. It does not stand to reason that in the night

at about 9.00 P.M. he would bring his foodgrain for

grinding. He was unable to tell how much foodgrain he

had brought for grinding. The most surprising aspect is

that although he claims to have been present at the time

of incident, he neither went along with Ganga Singh when

he was taken to Kayam Ganj Primary Health Centre after

the incident nor he accompanied PW-1 to police station

for lodging the report. He left the place of occurrence

within 10 minutes of the incident for his village. The

version of PW-1 and PW-2, insofar as infliction of knife

1 1 injury by Mahtab Singh to deceased Ganga Singh is

concerned, is also not uniform. PW-1 in his deposition

stated that Mahtab Singh stabbed Ganga Singh from the

back side while the version of PW-2 is that Mahtab Singh

inflicted knife injury to Ganga Singh from the front.

Pertinently, PW-2 is also co-brother of Ganga Singh.

14. All in all, the testimony of PW-1 and PW-2

does not conform with collateral circumstances as well as

probabilities. The circumstances brought on record show

that reliance on their testimony is not safe. Their

testimony is shrouded with grave suspicion and serious

doubts.

15. The trial court meticulously examined the

entire evidence available on record and then reached the

conclusion that the prosecution has failed to prove the

charges against the accused beyond reasonable doubt.

16. In Kalyan Singh v. State of M.P1., one of us

(S.B. Sinha, J.) observed :

1

(2006) 13 SCC 303

1 2 "The High Court while dealing with the matter, in our considered opinion, failed to apply the proper tests in deciding a case where a judgment of acquittal has been recorded. The views of the learned trial Judge cannot be said to be wholly unsustainable. It is now well known that if two views are possible, the appellate court shall not ordinarily interfere with the judgment of acquittal. We do not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out that even if the High Court reversed the judgment of acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible."

17. The aforesaid legal position has been

reiterated in K. Prakashan v. P.K. Surenderan2 wherein

it was said:

"It is now trite that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate court's jurisdiction to interfere is limited. (See M.S. Narayana Menon and Mahadeo Laxman Sarane v. State of Maharashtra.) The High Court furthermore has not met the reasons of the learned trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different."

2 (2008) 1 SCC 258

1 3

18. In Ghurey Lal v. State of Uttar Pradesh,3 this

Court while dealing with the scope of exercise of power

by appellate Court against judgment of acquittal under

Sections 378 and 386 Cr.P.C., considered a long line of

cases viz., Sheo Swarup v. King Emperor4; Surajpal

Singh v. State5; Tulsiram Kanu v. State6; Madan Mohan

Singh v. State of U.P.7; Atley v. State of U.P.8; Aher

Raja Khima v. State of Saurashtra9; M.G. Agarwal v.

State of Maharashtra10; Noor Khan v. State of

Rajasthan11; Khedu Mohton v. State of Bihar12; Shivaji

Sahabrao Bobade v. State of Maharashtra13; Lekha

Yadav v. State of Bihar14; Bishan Singh v. State of

Punjab15; Umedbhai Jadavbhai v. State of Gujarat16;

Tota Singh v. State of Punjab17; Ram Kumar v. State of

3 (2008) 10 SCC 450 4 AIR 1934 PC 227 5 AIR 1952 SC 52 6 AIR 1954 SC 1 7 AIR 1954 SC 637 8 AIR 1955 SC 807 9 AIR 1956 SC 217 10 AIR 1963 SC 200 11 AIR 1964 SC 286 12 (1970) 2 SCC 450 13 (1973) 2 SCC 793 14 (1973) 2 SCC 424 15 (1974) 3 SCC 288 16 (1978) 1 SCC 228 17 (1987) 2 SCC 529

1 4 Haryana18; Bhagwan Singh v. State of M.P.19; C.

Antony v. K.G. Raghavan Nair20; State of Karnataka v.

K. Gopalakarishna21; State of Goa v. Sanjay Thakran22;

and culled out the following principles:

"1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent.

3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong."

19. We agree. The aforesaid principles must be

kept in mind by the appellate court before it ventures to

overturn trial court's judgment of acquittal. Unfortunately

in the instant case, the High Court did not keep the well

settled principles in mind and reversed the judgment of

18 (1995) Supp.(1) SCC 248 19 (2002) 4 SCC 85 20 (2003) 1 SCC 1 21 (2005) 9 SCC 291 22 (2007) 3 SCC 755

1 5 acquittal recorded by the trial court when the view taken

by the trial court was possible as well as plausible. The

High Court, thus, seriously erred in disturbing the

judgment of acquittal and recording the finding of guilt

against the accused.

20. We, accordingly, allow the appeal and set

aside the judgment dated May 27, 2005 impugned in the

present appeal. Mahtab Singh is already on bail, his bail

bonds are cancelled. Jaipal is directed to be released

forthwith unless required in any other case.

..........................................J (S.B. SINHA)

..........................................J (MUKUNDAKAM SHARMA)

...........................................J (R.M. LODHA)

New Delhi April 13, 2009

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