Prahalad vs The State Of Madhya Pradesh

learned Additional District & Sessions Judge, Harda

(hereinafter referred to as “the learned Sessions Judge”) in

Sessions Trial No. 207 of 1991 in respect of the appellants

herein.

2. Shorn of details, the facts leading to the present appeals

are as under:

2.1 On 22nd June, 1991, Police Station, Harda received a

written information (Exhibit P­10) at 4.25 p.m. from Dr.

Kailash Narayan Singhal (P.W.10), to the effect that one

Ramesh son of Ramgopal Jat, aged about 38 years,

resident of Chhoti Harda had been brought to the Hospital

in a serious condition. In the said written information

(Exhibit P­10), it was stated that Ramesh was attacked by

a Katta shot. On the basis of the said written information,

2 Police Station Harda registered a First Information Report

(“FIR” for short) vide Crime No.153 of 1991 for the offence

punishable under Section 307 of the Indian Penal Code,

1860 (hereinafter referred to as “IPC”). On registration of

the FIR, Shri M.K. Shrivastava, City Inspector, Police

Station Incharge (P.W.17) visited the spot of occurrence.

Dr. Kailash Narayan Singhal (P.W.10) and Dr. Rajendra

Kumar Patel (P.W.14) provided first aid to the injured

Ramesh and referred him to Indore Medical College for

further treatment. However, Ramesh died on the way to

Indore and his dead­body was brought back to Harda,

where, on 23rd June, 1991, Merg No. 18 of 1991 was

registered and postmortem of the deceased was

conducted. As per the postmortem report, the cause of

death of the deceased Ramesh was heavy bleeding due to

injury caused by firearm.

2.2 The prosecution case, in a nutshell, is that the deceased

Ramesh had political enmity with the three accused, i.e.,

3 Mohan (Accused No.1), Prahlad (Accused No.2) and

Jagdish (Accused No.3). It was further the case of the

prosecution that all three accused had hatched a

conspiracy to do away with the deceased. Mohan

(Accused No.1) and Prahlad (Accused No.2) had used the

motorcycle of Jagdish (Accused No.3) to arrive near

Handia Bus Stand, where a gun­shot was fired at the

deceased from a short distance.

2.3 At the conclusion of the investigation, a charge­sheet

came to be filed in the Court of learned Judicial

Magistrate First Class, Harda. Since the case was

exclusively triable by the Sessions Court, the same came

to be committed to the learned Sessions Judge.

2.4 Charges came to be framed by the learned Sessions Judge

for the offences punishable under Section 120­B and 302

of the IPC and in the alternative, for offences punishable

4 under Section 302 read with Section 34 of the IPC and

Sections 25 and 27 of the Arms Act, 1959.

2.5 The accused pleaded not guilty and claimed to be tried.

The prosecution examined 17 witnesses to bring home the

guilt of the accused. Their defence was that they were

falsely implicated on account of party politics in village.

At the conclusion of the trial, the learned Sessions Judge

found that the prosecution had failed to prove the case

against the accused beyond reasonable doubt and as

such, acquitted all the three accused.

2.6 Being aggrieved thereby, the respondent­State of Madhya

Pradesh preferred an appeal before the High Court. The

High Court by the impugned judgment, though affirmed

the order of acquittal of Jagdish (Accused No.3), however,

reversed the order of acquittal insofar as the present

appellants, viz., Mohan (Accused No.1) and Prahlad

(Accused No.2) are concerned. The High Court convicted

5 them for the offences punishable under Section 302 read

with Section 34 of the IPC and sentenced them to undergo

life imprisonment. Insofar as the acquittal of the present

appellants for other charges under the Arms Act, 1959 is

concerned, the same was confirmed.

3. Being aggrieved thereby, the present appeals.

4. We have heard Mr. Vivek K. Tankha, learned Senior

Counsel appearing for the appellant­Prahlad in Criminal Appeal

No.2043 of 2009, Ms. Anisha Upadhyay, learned counsel

appearing for the appellant­Mohan in Criminal Appeal No.983

of 2010 and Mr. Abhinav Shrivastava, learned counsel

appearing on behalf of the respondent­State of Madhya

Pradesh.

5. Mr. Vivek K. Tankha, learned Senior Counsel would

submit that the High Court has grossly erred in reversing a

well­reasoned order of acquittal passed by the learned Sessions

Judge. He submitted that there are glaring contradictions and

6 lacunae in the prosecution case. It is submitted that even the

High Court has found that the prosecution was conducted in a

very shoddy manner. However, in spite of there being no

evidence, the High Court converted the well­reasoned order of

acquittal into conviction.

6. Mr. Tankha submitted that the High Court has relied on

the evidence of P.W.2­ Mahesh, an alleged eye­witness, to

record an order of conviction. It is submitted that the High

Court has erroneously held that the testimony of P.W.2­Mahesh

was corroborated by recovery of the motorcycle and the Katta

from the accused persons. It is further submitted that both the

seizures/recoveries of the motorcycle as well as the Katta are

not sustainable in law.

7. Mr. Tankha submitted that the perusal of evidence of

prosecution witnesses would itself reveal that though

statements of witnesses were recorded on 23 rd June, 1991, the

same have been withheld by the prosecution. He submitted

7 that from the perusal of the case diary, it will be clear that

three different versions of the story have been set up by the

prosecution. He further submitted that the requisition for

Postmortem of the deceased Ramesh would show that in the

requisition, it is mentioned that Jagdish (Accused No.3) had

assaulted the deceased Ramesh with a Katta.

8. Mr. Tankha, learned Senior Counsel, submitted that by

noticing all these discrepancies, the learned Sessions Judge

had acquitted all the accused persons. The High Court has

totally erred in reversing the well­reasoned order of acquittal

and that too, without recording any reasons.

9. Ms. Anisha Upadhyay, learned counsel adopted the

submissions made by Mr. Vivek K. Tankha, learned Senior

Counsel and submitted that both the appeals deserve to be

allowed.

10. Mr. Abhinav Shrivastava, learned counsel appearing on

behalf of the respondent­State of Madhya Pradesh submitted

8 that the High Court has found that the learned Sessions Judge

had failed to take into consideration the evidence of various

eye­witnesses. He submits that the learned Sessions Judge had

discarded the testimony of various eye­witnesses only on the

ground that they are related to the deceased and that they are

on inimical terms with the accused persons. He submitted that

merely because the witnesses are interested witnesses, being

related to the deceased, it cannot be a ground to discard their

testimony, which is otherwise trustworthy. He further

submitted that the ocular testimonies of the eye­witnesses are

duly corroborated by the recoveries made at the instance of the

accused persons.

11. Mr. Abhinav Shrivastava, learned counsel further

submitted that merely because there are lacunae in the

investigation, it cannot be a ground to acquit the accused when

the evidence on record points the finger of guilt towards the

accused. Learned counsel therefore submits that the judgment

9 and order of conviction, passed by the High Court warrants no

interference and the appeals are liable to be dismissed.

12. We are aware that the scope of interference in an appeal

against acquittal is very limited. Unless the appellate court

comes to a finding that the view taken by the Sessions Judge is

either perverse or impossible, it will not be permissible to

interfere with the finding of acquittal. Equally, if two views are

possible and the appellate Court finds another view to be more

probable, it cannot interfere with the order of acquittal unless it

finds that the view taken by the learned Sessions Judge is an

impossible view. Reference in this respect could be made to a

recent judgment of this Court in the case of Guru Dutt Pathak

vs. State of Uttar Pradesh1, wherein this Court has

considered various earlier judgments of this Court on the issue.

13. In the backdrop of this legal position, we will have to

examine the correctness of the view taken by the High Court.

1 (2021) 6 SCC 116

10

14. At the outset, it may be mentioned that the accused

persons are not disputing the factum of the death of the

deceased being homicidal. However, it is the contention of the

accused that they have been falsely implicated on account of

political enmity.

15. The factors which weighed with the learned Sessions

Judge for acquitting the accused persons have been culled out

by the High Court in its judgment. They read thus:

“(i) The eyewitnesses were not only related witnesses but were also chance witnesses. There were material omissions and contradictions in the statements of alleged eyewitnesses. Even after asserting in their case diary statement that Ramesh was fired from a distance of 4 to 5 paces, the eyewitnesses changed the version in their sworn testimony apparently in the light of the ballistic report by deposing that the shot was fired from a distance of nearly 18 inches.

No explanation was given by the eyewitnesses as to why corresponding information was not

11 given to police or to Dr. Kailash Narayan (PW10) by any one of them.

(ii) Although, Sitabai (PW3) had stated that she had narrated the incident to a police officer in the hospital yet, in the corresponding letter of request for postmortem, name of Jagdish was written as the author of gunshot injury.

(iii) The statements of witnesses recorded by ASI P.N. Bharti (PW16) during marg enquiry were not placed on record.

(iv) Occupiers of the hotel and shops situated at the bus stand could have been the natural and probable witnesses to the incident but they were not produced in evidence and handcart puller was not examined.

(v) Though declared hostile, the statement of Narayan (PW4) and Chheetar (PW7) contradicting the evidence of other eyewitnesses could be taken into account to discard the prosecution version.

(vi) The evidence as to involvement of A3 in the conspiracy leading to

12 murder of Ramesh given by Ram Avtar (PW13), a near relative of the deceased, did not inspire confidence. The motorcycle was not proved to be belonging to Jagdish.

(vii) The investigation was tainted with soft peddling and indifferent attitude of the investigating officer.

Although, he claimed to have visited the spot immediately after registering the case under Section 307 of the IPC against unknown persons but nonseizure of blood and other articles from the spot coupled with non­preparation of spot map completely belies his statement.

There were material interpolations in the corresponding entries in the Roznamcha. These entries as well as the admissions made by Investigating Officer M.K. Shrivastava (PW17) reflect that some other persons were also involved in the incident.”

16. The High Court, after making the aforesaid observations,

goes on to discuss the evidence of the witnesses. The High

Court in paragraph 31 observed that a defective investigation

cannot, by itself, be a ground for acquittal, if the prosecution

13 case is established by other cogent evidence. Relying on the

judgment of this Court in the case of Dhanaj Singh alias

Shera & Ors. vs. State of Punjab 2, the High Court observed

that the only requirement in such a case is that the Court has

to be circumspect in evaluating the evidence.

17. Thereafter, the High Court in paragraph 34 observed thus:

“34. The panch witnesses selected for proving the recovery of Katta and motorcycle as per disclosure statement given by A1 were also not independent in the real sense of term. Ramdin (PW8) is the cousin of A3, the maternal uncle of A1, who happens to be the real uncle of A2. Hari Ram (PW9) also had a grudge against Ramesh as, admittedly, he was convicted under Section 326 of the IPC for causing grievous hurt to Ramdin, the brother of Ramesh. In these circumstances, it was not possible to reject testimony of M.K. Shrivastava (PW17) as to recovery of Katta and the motorcycle. According to him, he prepared the memorandum (Ex.P­4) as per information given by A1 and recovered one deshi katta and a motorcycle at the instance of A1 only. The katta thus, seized was sent for forensic 2 (2004) 3 SCC 654

14 examination along with the pellets and clothes of the deceased preserved by the autopsy surgeon Dr. Rajendra Kumar Patel (PW14). The ballistic expert Dr. J.K.Agrawal opined with certainty that the gunshot injury causing holes in the shirt and vest of the deceased could be caused by fire through katta. It was also observed that the pellets were compatible to a 12­bore cartridge capable of being fired through the katta.

35. To sum up, none of the reasons assigned by learned trial Judge to discard the overwhelming incriminating evidence against A1 and A2. regarding their respective overt acts in causing death of Ramesh, is worthy of acceptance.”

18. Thereafter, in paragraphs 36 to 40 of the impugned

judgment and order, the High Court considered the case of the

respondent­State against the complicity of the accused No.3­

Jagdish and observed thus in paragraph 41:

“41. Thus, although complicity of A3 in the murder of Ramesh could not be established beyond a reasonable doubt yet, acquittal of A1 and A2 for the offence was not justified. The obvious reasoning is ­ even if it is

15 concluded that the interested witnesses were not able to view the incident as being standing at a considerable distance, the ocular testimony of Mahesh coupled with the medical and forensic evidence concerning the firearm seized from A1 and the recovery of the motorcycle from his possession was sufficient to prove complicity of A1 and A2 and the benefit of certain inconsistencies in the prosecution case caused due to apparent laxity of investigating officer could not be given to them. Nevertheless, their acquittal in respect of the offences under the Arms Act does not call for any interference in view of the fact that the prosecution sanction given by DM was not proved.”

19. It could thus clearly be seen that the High Court has

converted the order of acquittal into an order of conviction as

against the accused appellants herein based on the testimony

of P.W.2­Mahesh, corroborated by the seizure of the Katta and

the Motorcycle. The High Court observed that the same have

been seized/recovered on the disclosure statement made by the

accused No.1­Mohan. The High Court observed that the Panch

16 witnesses were not independent, and yet it believed those

recoveries on the testimony of P.W.17­M.K. Shrivastava (the

I.O.).

20. The High Court in paragraph 35 specifically observed that,

none of the reasons assigned by the learned Sessions Judge to

discard the overwhelming incriminating evidence against the

accused No.1­Mohan and accused No.2­Prahlad regarding their

respective overt acts in causing the death of Ramesh, is worthy

of acceptance.

21. To examine the correctness of the findings of the High

Court, it will be apposite to scrutinize the evidence on record.

22. Insofar as the evidence of P.W.1­Har Narayan, P.W.3­Sita

Bai, the brother and the sister­in­law of the deceased Ramesh

respectively, and P.W.5­Hari Prasad, the brother of Sita Bai

(P.W.3) is concerned, the High Court itself has observed that it

is not probable that they could have witnessed the incident

17 from the place where they were allegedly standing. As such, it

will not be necessary to discuss their ocular testimony.

23. The High Court mainly relied on the testimony of P.W.2­

Mahesh. P.W.2­Mahesh states that on the date of the incident,

he, Har Narayan (P.W.1), Ramesh and Narayan went to Harda

for purchasing fertilizers. He stated that, thereafter, Sita Bai

(P.W.3) also joined them and from Naya Bazar, all of them

started going towards Handia Bus Stand. He states that,

thereafter, he and the deceased Ramesh went to Mama Hotel to

have a cup of tea. The remaining people waited on the other

side of the road across the said Hotel. After taking tea, when

they were coming out from the Hotel, he saw accused No.2

Prahlad coming from Handia side on Motorcycle. Accused

No.1­Mohan was the pillion rider. Accused No.1­Mohan gave a

gun­shot at the stomach of the deceased Ramesh from a

distance of about one feet. After that accused No.2­Prahlad

and accused No.1­Mohan fled towards Handia on the said

Motorcycle. He stated that, thereafter, the injured Ramesh was

18 put on a hand­pulled thela and brought to the Government

Hospital. Injured Ramesh was taken to the Operation Theatre.

After half an hour, the injured Ramesh was taken out from the

Operation Room. Thereafter, on the doctors’ advice, Ramesh

was taken to Indore Hospital, accompanied by him. There are

material contradictions and improvements in his evidence.

24. It will be relevant to note that it was P.W.2­Mahesh who

had brought the deceased Ramesh to the Hospital, who had

accompanied him when he was being taken to Indore as well as

while returning to Harda after the deceased Ramesh had died

on the way.

25. At this juncture, it will be relevant to refer to Exhibit P­15,

which is the requisition for conducting Postmortem. In the said

requisition, the following endorsement is made:

“Sir, due to fire by Katta by Shri Jagdish s/o Shiv Ram Jat, R/o Chhoti Harda, Ramesh s/o Ram Gopal Jat, R/o Chhoti Harda died.”

19

26. In this background, it will be relevant to refer to the

following depositions of P.W.2­ Mahesh in his cross­

examination:

“14. The day on which my statement was recorded it was only mine. It is wrong to say that my statement was recorded on 26. Stated himself that it was recorded on 23 rd in the morning. My statement was recorded at 7’o clock at the police station.”

27. It could thus clearly be seen that he has denied that his

statement was recorded on 26th. He has further admitted that

his statement was recorded on 23rd in the morning at 7’O clock

in the police station.

28. P.W.17­M.K. Shrivastava (the I.O.) in his cross­

examination has admitted thus:

“47. In Roz Namch dated 23.06.1991 there is no mention of the statements of witness Narayan, Mahesh, Harinaraya, Sitabai and Kailash taken during investigation. On 23.06.1991 there is no investigation report in regard to this case. on 24.06.1991 in Roznamcha there is no mention about the entries of

20 recording statement of witness Chhitar, Ramavatar, and Babulal. In this regard no reason has been stated. Roznamcha entry started at 6'0 clock in the morning and continued till 6'0 clock on 2nd day. And whatever proceedings are being carried out in 24 hours those are being mentioned in that. During investigation I recorded the statements of witness only once. I have brought Roznamcha entry number 1490, dated 26.06.91 with me. On this Roznamcha entry there is mention about the report of this case that is Ex.D­8. The copy of the same is Ex. D­8 (C).”

29. It is thus clear from his evidence that in the Roznamcha

dated 23rd June, 1991, there is no mention of the statements of

the witnesses taken during investigation. It is further admitted

that, on the said date, there is no investigation report in regard

to this case. He further admitted that on 24 th June, 1991, in

Roznamcha, there is no mention about the entries of recording

statement of witnesses. He stated that Roznamcha entry

started at 6’o clock in the morning of 26 th June, 1991 and

21 continued till 6’o clock in the morning on 2 nd day, i.e., 27th

June, 1991.

30. A perusal of the Roznamcha entries would make for an

interesting reading. The relevant portion of the Roznamcha

entry No.1480 (Crime No.153/1991) dated 26 th/27th June,

1991 reads thus:

“It has also been stated in the statement that at Handia Bus Stand, in front of shop of Badri Jat, they met Ram Narayan, his son Kailash, Jagdish Sarpanch, Prem Narayan S/o Jagdish, Mohan, Revaram, Badri, Ram Bharose, Laxmi Narayan, Prem Narayan and Prahlad of their Village standing there. All these people caught Ramesh. It has been stated in the statement that Mohan fired at Ramesh with Katta. These witnesses were called earlier also for making the statements.”

31. In this background, it will be relevant to refer to the

evidence of P.W.16­P.N. Bharti, Assistant Sub­Inspector, Police

Station, Harda. In his deposition, he clearly admitted that he

had recorded the statement of witnesses on 23 rd June, 1991.

However, the same were not produced with the Challan. He

22 further stated that he does not have any information as to

where those statements are kept.

32. It will also be relevant to refer once again to the deposition

of P.W.17­M.K. Shrivastava (the I.O.), which reads thus:

“61. On 22.06.1991 in regard to present case one Dehati Naalis was prepared by Thanedaar Rethia in Hospital.

Thanedaar Rethia upon my instructions participating in investigation in present case. Thanedaar Barathia was not doing

independent investigation. Dehati Naalis was prepared on the same day by Thanedaar Barathia in the Harda Hospital after making enquiry from Hari Prasad. This I am stating on the basis of entry no. 1290 dated 22.06.1991 in Roznamcha. The said Dehati Naalis has not been produced with the case.

62. In regard to marg ASI Bharti recorded the statements of witnesses but the same has not been produced with the chalan and has not been enclosed with the case diary also. Where these statements are today I cannot tell. It is correct that in Marg investigation/enquiry the statements of witnesses were

23 recorded those statements and statement of witness Harnarayan and Mahesh recorded on 26.06.1991 and the statements of witness Sitabai and Kailash recorded on 27.06.1991 are against the prosecution therefore the same have not been produced in the court.”

33. It is thus clear that the prosecution has come out with

three different versions. As per the Postmortem requisition, it

is the accused No.3­Jagdish who had shot the deceased

Ramesh. As per the ocular testimony of P.W.2­Mahesh, which

is relied on by the High Court, it is the accused No.1­Mohan,

sitting as pillion rider with accused No.2­Prahlad, who had shot

the deceased; and the third version as per the Roznamcha, 11

persons had caught deceased Ramesh and accused No.1­

Mohan had fired at him with Katta. It is a case full of

mysteries. According to P.W.2­Mahesh, his statement was only

recorded on 23rd June, 1991, which is corroborated by P.W.16­

P.N. Bharti, Assistant Sub­Inspector, Harda. Whereas

24 according to P.W.17­M.K. Shrivastava (the I.O.), the statements

were recorded only on 26th and 27th June, 1991. The

Postmortem requisition states that it is accused No.3­Jagdish,

who had assaulted the deceased Ramesh with Katta. P.W.16­

P.N. Bharti states that he is not aware as to where the

statements recorded by him on 23 rd June, 1991 are kept.

P.W.17­M.K. Shrivastava (the I.O.), admits that Dehati Naalis

was prepared by Thanedar Bharti. However, the same was not

produced with the case. He further admitted that the

statements of some of the witnesses were against the

prosecution and therefore the same have not been produced in

the Court.

34. It is thus clear that the prosecution has failed to bring out

the true genesis of the incident. The prosecution has not come

to the Court with clean hands. As such, the High Court has

rightly held that the investigation conducted by the P.W.17­

M.K. Shrivastava (the I.O.) was not done in a fair and impartial

manner. However, in spite of that, though the High Court has

25 refused to rely on the testimony of the Panch witnesses, it has

relied on the recovery of the Motorcycle and the Katta, allegedly

at the instance of the accused No.1­Mohan only, on the basis of

the testimony of the very same P.W.17­M.K. Shrivastava (the

I.O.).

35. Mr. Abhinav Shrivastava, learned counsel appearing on

behalf of the respondent­State of Madhya Pradesh is right in

contending that the conviction could be based on the sole

testimony of a single eye­witness and therefore the High Court

was justified in convicting the accused on the basis of the

testimony of P.W.2­Mahesh. In this respect, it will be relevant

to refer to the judgment of this Court in the case of Anil

Phukan vs. State of Assam3, wherein this Court has observed

thus:

“3. …….Indeed, conviction can be based on the testimony of a single eyewitness and there is no rule of law or evidence which says to the contrary provided the sole witness passes the test of reliability. 3 (1993) 3 SCC 282

26 So long as the single eyewitness is a wholly reliable witness the courts have no difficulty in basing conviction on his testimony alone. However, where the single eyewitness is not found to be a wholly reliable witness, in the sense that there are some circumstances which may show that he could have an interest in the prosecution, then the courts generally insist upon some independent corroboration of his testimony, in material particulars, before recording conviction. It is only when the courts find that the single eyewitness is a wholly unreliable witness that his testimony is discarded in toto and no amount of corroboration can cure that defect….”

36. It is also equally well settled that previous enmity is a

double­edged sword. Though, it can provide a motive for the

crime, it can also be a ground for false implication. Reliance in

this respect, could be made on the judgment of this Court in

the case of Ramashish Rai vs. Jagdish Singh4, wherein this

Court has observed thus:

7. …………..By now, it is well­settled principle of law that enmity is a double­ 4 (2005) 10 SCC 498

27 edged sword. It can be a ground for false implication. It also can be a ground for assault. Therefore, a duty is cast upon the court to examine the testimony of inimical witnesses with due caution and diligence.

……….”.

37. It is further contended by Shri Shrivastava, learned

counsel, that merely because there are lacunae in the

investigation, it cannot be a ground to acquit the accused, if

there is other evidence available on record. In this respect, we

may gainfully refer to the observations of this Court in the case

of Sunil Kundu and another vs. State of Jharkhand5:

“29. We began by commenting on the unhappy conduct of the investigating agency. We conclude by reaffirming our view. We are distressed at the way in which the investigation of this case was carried out. It is true that acquitting the accused merely on the ground of lapses or irregularities in the investigation of a case would amount to putting premium on the deprecable conduct of an incompetent investigating agency at the cost of the victims which may lead to encouraging perpetrators of crimes. This 5 (2013) 4 SCC 422

28 Court has laid down that the lapses or irregularities in the investigation could be ignored subject to a rider. They can be ignored only if despite their existence, the evidence on record bears out the case of the prosecution and the evidence is of sterling quality. If the lapses or irregularities do not go to the root of the matter, if they do not dislodge the substratum of the prosecution case, they can be ignored.

In this case, the lapses are very serious…….”

38. The present case too is full of inconsistencies. The

evidence of the witnesses is contradictory to each others’. The

investigation is carried out in a totally irregular manner. As

already discussed herein above, the testimony of P.W.2­Mahesh

itself cannot be said to be of sterling quality. The so­called

recoveries are also totally untenable.

39. In this view of the matter, the conviction of the appellants

on the sole testimony of P.W.2­Mahesh would not be tenable.

The Division Bench of the High Court has relied on the recovery

of the Motorcycle and the Katta, allegedly at the instance of the

29 disclosure statement given by the accused No.1­Mohan.

Insofar as the recovery of Motorcycle is concerned, the said

Motorcycle has been recovered at the instance of one Mahesh,

son of Jagdish Jat, i.e., son of the accused No.3, and that too

on 25th June, 1991. As such, the finding of the High Court that

it is recovered at the instance of the accused No.1­Mohan is

inconsistent with the record.

40. Insofar as the recovery of the Katta at the instance of the

accused No.1­Mohan is concerned, it would reveal that both the

arrest as well as the recovery are shown to be made

approximately at the same time on 26 th June, 1991. The

distance between the Police Station and the place from where

the alleged recovery is made is about 5 km. Apart from that,

the recovery of Katta is from an open place, accessible to one

and all. Furthermore, there is no Panchnama on record to

show as to in what manner the said recovery was made. As

such, the said recovery is also not free from doubt and could

not have been relied on by the High Court.

30

41. We are therefore of the considered view that the High

Court has totally erred in reversing the well­reasoned order

passed by the learned Sessions Judge acquitting the accused.

The High Court has travelled much beyond the scope of

interference in an appeal against acquittal. The present

appeals therefore deserve to be allowed. It is ordered

accordingly.

…….........................J. [B.R. GAVAI]

………………....…….........................J. [PAMIDIGHANTAM SRI NARASIMHA]

NEW DELHI;

JULY 27, 2022

31 1

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 2043 OF 2009

PRAHALAD APPELLANT(S)

VERSUS

STATE OF MADHYA PRADESH RESPONDENT(S)

WITH

CRIMINAL APPEAL NO. 983 Of 2010

O R D E R

Applications for impleadment in both the matters

are allowed.

For the reasons recorded separately, the appeals

are allowed. The judgment and order of the High Court dated

11.05.2009 convicting the appellants for the offences

punishable under Section 302 read with Section 34 of the

Indian Penal Code, 1860 is quashed and set aside. The

judgment and order passed by the learned Additional

District & Sessions Judge, Hoshangabad (Madhya Pradesh)

acquitting the appellants for all the charges is confirmed.

The bail bonds shall stand discharged.

....................J (B.R. GAVAI)

.............................J (PAMIDIGHANTAM SRI NARASIMHA) NEW DELHI;

27th JULY, 2022