The State of Uttar Pradesh Home Department Secretary vs Om Pal & Ors.

REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

Criminal Appeal No(s). 1213 OF 2014

STATE OF UTTAR PRADESH Appellant(s)

VERSUS

OM PAL & ORS. Respondent(s)

JUDGMENT

N.V. RAMANA, J.

This appeal by way of special leave petition is filed by the

State of Uttar Pradesh against the final judgment and order dated

6th April, 2007 passed by the High Court of Judicature at

Allahabad in Criminal Appeal No. 2622 of 2005. By the said

judgment, the High Court has acquitted the respondents who were

accused in Sessions Trial No.1090 of 2003 before the District

Court, Ghaziabad, Uttar Pradesh.

Signature Not Verified Digitally signed by ASHA SUNDRIYAL Date: 2018.04.04 16:42:30 IST Reason:

2. The prosecution case, in brief, is that on 25-3-1993 at 2

about 9.00 a.m. Mahipal (deceased) and his wife Prakashee (PW3)

were going to their fields on a buffalo cart and Tej Pal, Ram

Swaroop and Dharmendra (PW2) were following them. While they

were on their way, the three accused (respondents herein)

appeared out of a sugercane filed near the fields of one Alias, while

hurling abuses against Mahipal fired at him. The fire opened by

Om Pal was missed but the fire opened by Mukhtiar hit Mahipal.

Navin assaulted Mahipal with the butt of the Tamancha on his

head. On receiving information from Dharmendra (PW2) about the

incident, Naresh (PW1) accompanied by Dharmendra took the

injured Mahipal to the police station, Babugarh and lodged FIR.

Thereafter, on the way to hospital, Mahipal succumbed to the

injuries.

3. The Investigating Officer, Sub-Inspector R.K. Chaudhary

(PW6) carried the investigation, recorded statements, prepared site

plan (Ext. Ka-3), collected plain earth as well as blood stained earth

from the place of occurrence and after conducting inquest at the

hospital, sent the dead body for postmortem. The accused

Mukhtiar was arrested on 29.3.1993 near village Bacchrota and

from his possession one illegal pistol of 315 bore and one

ammunition cartridge (Ext.K.13) were recovered. On 8 th April, 1993 3

the I.O. recorded the statements of other accused Omal and Navin.

A Tamancha, allegedly used in the crime, was later recovered at the

instance of accused Ompal on 14.4.1993. The statement of the wife

of deceased (PW3) was recorded on 24.4.1993. After concluding the

investigation, the Judicial Magistrate, Hapur committed the case to

the Court of Sessions where charges were framed under Section

302, IPC read with Section 34, IPC against all the three accused

and additionally charges were framed against accused Mukhtiar

under Section 25 of the Arms Act. The accused pleaded not guilty

and claimed to be tried.

4. At the trial, the prosecution mainly relied on the

evidences of complainant—Naresh Pal (PW1) and eyewitnesses

Dharmendra (PW2) and Prakashee (PW3), wife of the deceased. The

motive for committing the crime was said to be that there was

enmity between the parties as about three years before the date of

occurrence, accused Mukhtiar was shot at and in that regard a

case was in progress at Hapur Court in which Mahipal (PW1) was

accused. P.W. 4—Pratap Singh was examined as a witness to prove

the conspiracy. P.W.5 is Dr. Hari Kishan Agarwal, who had

conducted the post mortem of deceased Mahipal. P.W. 6 S.I. R.K.

Chaudhary—I.O. and P.W. 7— Paltoo Ram, Head Constable are the 4

formal witness. At the end of the trial, the Trial Court came to the

conclusion that the prosecution has successfully proved the guilt of

the accused. Accordingly, the accused were convicted under

Section 302 read with 34, IPC and sentenced to suffer life

imprisonment and to pay a fine of Rs. 5,000/- each and in default

thereof, to further suffer six months rigorous imprisonment.

5. The trial Court’s judgment awarding conviction and

sentence has been assailed by the accused by way of criminal

appeal before the High Court. On appreciation of the material

placed before it, the High Court recorded its finding that the

prosecution witnesses, on whose evidence the trial Court has relied

on, are not reliable. Accordingly, the High Court set aside the

judgment of the trial Court and acquitted all the three accused.

Dissatisfied with the acquittal order passed by the High Court, the

State of Uttar Pradesh has preferred the present appeal before this

Court.

6. We have heard the learned counsel appearing on behalf

of the appellant and the learned Amicus Curiae appearing on behalf

of the respondents.

5

7. Learned counsel for the State vehemently contended the

impugned order and submitted that the High Court has failed to

appreciate the factum of presence of two eyewitnesses PWs 2 and 3

at the spot, who deposed in clear terms the way in which the

accused carried the assault on the deceased resulting in his death.

The injuries on the body of the deceased fully corroborates the

prosecution case and the medical evidence also supports the case

of prosecution, but the High Court has, by setting aside the well

reasoned judgment rendered by the trial Court, committed a grave

error of law calling for this Court’s interference.

8. Learned Amicus Curiae, however, supported the view

taken by the High Court and submitted that there is no need for

this Court to interfere with the order of acquittal passed by the

High Court.

9. Having heard learned counsel on either side, we have

given our thoughtful consideration to the facts and circumstances

of the case in the light of material placed before us. It appears that

the trial Court based its judgment mainly relying upon the

evidences of three prosecution witness i.e. P.W.1—Naresh Pal, the

complainant, PW2—Dharmendra, an eyewitness and PW3— 6

Prakashee, another eyewitness and wife of the deceased. However,

in the view expressed by the High Court, the aforesaid witnesses

are not credible. Since the entire prosecution case hinges on the

depositions of these three witnesses, it is imperative for the Court

to scrutinize their evidences properly so as to sift the chaff from the

grain and find out the truth. In that pursuit, their evidences are to

be considered from the point of view of credibility and

trustworthiness. Once the same stands satisfied, it ought to inspire

confidence in the mind of the Court to accept the stated evidence.

10. Admittedly, the complainant—PW1 has not witnessed the

occurrence. He believed whatever Dharmendra (PW2) informed him

and accordingly he lodged the complaint. It is also indisputable

that PW1 was inimical with the respondent party. There was also a

criminal case pending in Hapur Court relating to an incident of

firing at the accused, in which the deceased as well as PW1 were

accused and Respondent No.3 herein was the victim. It is evident

from the record that on the aspect of how PW1 came to know about

the incident, he made contradictory statements. There was no

independent witness and according to prosecution, despite the

efforts made by police to record statements from the public, no one

was ready to give evidence. As per the statement of PW1, besides 7

PWs 2 & 3, two more persons Tej Pal and Ram Swaroop have also

witnessed the incident. It is quite unnatural that none of the

eyewitnesses has lodged complaint, but on the basis of information

provided by Dharmendra (PW2), PW1 lodged the complaint

believing the version of Dharmendra.

11. On the other hand, the conduct and statements of PW2

(Dharmendra) who was stated to be an eyewitness do not inspire

confidence for the reason that his depositions under Section 161,

Cr.P.C. were quite different to what he stated before Court in his

examination-in-chief. He could not even give a satisfactory reason

for his presence at the time and place of occurrence. Furthermore,

he did not choose to lodge complaint with the police by himself

even though he had witnessed the occurrence as admittedly the

complaint was lodged by PW1 on the information provided by PW2.

Apart from that, there were certain conflicting statements in his

evidence as regards how the deceased got injuries, and also his

conduct of not making a hue and cry and not disclosing to anyone

about the occurrence on his way to the house of Naresh Pal, gives

rise to suspicion on the credibility and trustworthiness of PW2.

When the evidence of PW2 itself is unbelievable and jeopardizing

the prosecution case, in no manner the evidence of PW1 could be 8

given credence.

12. We are also not inclined to believe the conduct of PW3—

wife of the deceased, who was stated to be in a shock and not in

consciousness for about a month after the death of her husband.

We find no valid documentary or medical evidence on record in

support of the claim of prosecution that PW3 was really in such

unconscious state for about a month. Looking at the unnatural

behavior of eyewitnesses PWs 2 & 3 and their contradictory

statements, it cannot be said that their evidences are genuine so as

to convict the accused.

13. Also there were some notable flaws in the prosecution

case which cannot be ignored. According to PW4 (Pratap Singh), on

the previous night of the incident, he along with one Jakar (not

examined) heard the accused hatching conspiracy to murder the

deceased, but the prosecution did not present Jakar as a witness.

It is incredible on the part of PW4 that despite knowing about the

conspiracy, he did not reveal it to the victim party so as to save the

life of the deceased. The trial Court also disbelieved his evidence.

14. The High Court, while appreciating the evidence of the 9

three important witnesses i.e. PWs 1, 2 and 3, rightly disbelieved

the presence of PWs 2 and 3 at the place of occurrence and

discredited the evidence of P.W.1—complainant. Undoubtedly, the

prosecution in its effort to establish the case with the support of

evidences of PWs 1, 2 and 3, has miserably failed to prove the guilt

of the accused beyond reasonable doubt. The High Court has,

therefore, committed no illegality or manifest error in acquitting the

accused giving them the benefit of doubt, under the circumstances.

We express our concurrence with the findings recorded by the High

Court for acquitting the respondents. For the aforesaid reasoning,

we do not find any merit in this appeal calling for our interference

under Article 136 of the Constitution.

15. Accordingly, the Criminal Appeal filed by the appellant –

State of U.P. is dismissed.

................................J. (N.V. RAMANA)

...............................J. (S.ABDUL NAZEER) NEW DELHI, MARCH 21, 2018.