The State Of Uttarakhand vs Darshan Singh

STATE OF UTTARAKHAND ... APPELLANT

VERSUS

DARSHAN SINGH ... RESPONDENT

WITH

CRIMINAL APPEAL NO. 1857 OF 2013

J U D G M E N T

K.M. JOSEPH, J.

1. Since these appeals involve the same impugned judgment

of the High Court acquitting the respondents of offences

under Section 147, 148, 149 and 302 of the Indian Penal Code,

1860 (hereinafter referred to as ‘the IPC’, for short), we Signature Not Verified Digitally signed by ANITA MALHOTRA Date: 2019.11.07 deem it fit to dispose of the same by a common judgment. 17:31:11 IST Reason: 1 PROSECUTION CASE IN BRIEF

2. The complaint in this case, which led to the trial, was

lodged by one Swarn Singh-PW1. The complaint in brief is

as follows:

On 22.08.1992, when he, along with his

father, mother and maternal uncle, were going

on a tractor from Nanakmatta to their village

and his father was driving the tractor, when

the tractor reached one kilometre from their

house, they found that a bullock cart has

blocked their passage. The tractor stopped

near the bullock cart. One of the

accused-Pahalwan Singh appeared. The other

accused, along with him, were hiding near a

tree. He was having a sword in his hand.

Resham Singh, who is the third respondent in

Criminal Appeal No. 1857 of 2013, had a

country-made pistol in his hands. Daleep

Singh had a ballam (a sharp edged weapon), his

son Jagir Singh carried a country-made

2 pistol. Darshan Singh also had a country-made

pistol. Veer Singh was having a sharp-edged

weapon (campa). They started hurling abuses

on the family of the complainant. Resham

Singh fired with his country-made pistol.

Pahalwan Singh and Darshan Singh fired with

their country-made pistol, and Veer Singh

Singh with his campa, inflicted blows on the

complainant’s father-Singhara Singh. He fell

from the tractor and died. On raising alarm,

all the accused fled away on the bullock cart.

The complainant, his father and maternal

uncle did not dare to fight the assailants.

3. The First Information Report (FIR) came to be lodged

under Sections 147, 148, 149 and 302 of the IPC. The Trial

Court framed charges under Sections 147, 148, 302 read with

149 of the IPC. Separate charges were also framed under

Section 25 of the Arms Act,1959 (hereinafter referred to

as ‘the Arms Act’, for short). PWs 1 to 6 were examined from

3 the side of the prosecution. Statements of the accused were

taken under Section 313 of the Code of Criminal Procedure,

1973 (hereinafter referred to as ‘the Cr.PC.’, for short).

4. The Trial Court convicted Pahalwan Singh, Resham

Singh, Daleep Singh, Veer Singh and Darshan Singh for

offences under Sections 302 read with 148 and 149 of the

IPC. Resham Singh and Darshan Singh were acquitted of the

charge under Section 25 of the Arms Act.

5. The High Court, by the impugned order, has acquitted

the accused. The judgment reveals that the following

aspects weighed with the High Court in its decision to

acquit the accused:

i. There were material variations in the evidence of

PWs 1 and 2.

ii. PW2 was not a non-partisan witness. He is distantly

related to the informant.

iii. PW4 is none other than maternal uncle referred to by

the complainant as having travelled along with him on

the tractor. He has turned hostile and has not

supported the prosecution version.

4 iv. The case of the prosecution that after the firing and

the inflicting the wound injuries on the deceased, the

accused fled away in the bullock cart, could not be

believed.

v. PW1 deposed that the lights of the tractor were on. PW2,

on the other hand, deposed that the bulb of the tractor

was off.

vi. Injury no.4 was a gunshot wound on the left side of the

back of the deceased.

vii. According to prosecution evidence, accused blocked the

way of the tractor and accused fired while standing in

front of the tractor. There was material inconsistency

between ocular and medical evidence in this regard.

viii. It is noticed by the High Court that PW3-Doctor, in

his evidence, does not support the case of the

prosecution.

ix. The High Court noticed, according to the prosecution

evidence, that the deceased was driving the tractor and

his close relatives, viz., his wife, the complainant,

who has been examined as PW1, and maternal uncle, were

5 travelling along with the accused. However, none of the

relatives, who were sitting on the tractor and on the

mudguard, have suffered any injuries. This also

persuaded the High Court to acquit the accused.

6. We have heard the learned counsel appearing for the

State/appellant and the learned counsel appearing for the

accused/respondents, in both the appeals.

7. The learned counsel for the State has pointed out that

respondent no. 2, in Criminal Appeal No. 1857 of 2013, has

passed away and we have also taken note of the same in our

order dated 28.08.2019 that the appeal stands abated as

against him.

8. The learned counsel for the State would contend as

follows:

(i) There was no actual inconsistency in the ocular

evidence of PW1 and medical evidence. He has maintained

that accused-Resham Singh has fired shot which hit the

deceased at the back.

6

(ii) Merely on account of minor contradictions in the

statement of PW1 and medical evidence depicting the

injuries, High Court ought not have interfered in the

matter, having regard to the nature of the injuries

inflicted, the recovery of the weapons and the

conclusion in the FSL Report, which fully corroborates

the case of the prosecution.

(iii) PW1-son of the deceased was only 17 years of age at

the time of the incident. The court may bear in mind

that this is a case where accused ambushed them and

carried deadly weapons hurling threats. Meticulous

narrative of the incident, in such circumstances, may

not be insisted upon. He relied upon judgment of this

Court in Gosu Jayrami Reddy and another v. State of

Andhra Pradesh1 and Mangoo v. State of Madhya Pradesh2.

(iv) At the place of the incident., an empty cartridge of

12-bore pistol was recovered by the Investigating

Officer. A recovery was effected from the accused on

1 (2011) 11 SCC 766 2 AIR 1995 SC 959 7 the basis of statement by the accused including the

12- bore pistol. FSL Report states that the shot has

been fired from the 12-bore pistol which was recovered.

The High Court has not found the recovery to be

vitiated. This means that recovery can be acted upon.

(v) There is no material for the inconsistency between the

evidence of PWs 1 and 2. The only variation is that PW2

has deposed that Resham Singh has climbed up to the

tractor and fired the shot which caused injury no.4 on

the back of the body of the deceased. In this regard,

he relied upon judgment of this Court in Abdul Sayeed

v. State of Madhya Pradesh 3 to contend if there is

inconsistency between ocular and medical evidence,

ocular evidence must prevail unless medical or

scientific evidence completely renders impossible

action upon ocular testimony.

(vi) The statement of PW1 that the shots were fired from 5-7

steps from near the bullock cart, was also explained,

as found by the Trial Court, by holding that PW1 was

3 (2010) 10 SCC 259

8 describing the distance between the place of the

bullock cart and the place of the shot fired.

(vii) The FIR was lodged within three hours on 22.08.1992

itself. The incident took place at 05.30 P.M.. The

promptness, with which the FIR was lodged, was not

given the due importance.

(viii) Lastly, the reasoning of the High Court that none

of the relatives suffered injuries, is attacked on the

basis that when the incident unfolded with the accused

coming out with the armed weapons, it would be

unnatural to expect that his relatives would have

remained glued to their position. The fact that the

relatives were unhurt is consistent with their normal

behaviour when faced with assailants armed with deadly

weapons, hurling threats and firing.

9. Per contra, learned counsel for the accused would

submit that the incident is of the year 1992. She supports

the order of the High Court. Learned counsel for the

accused/respondents would submit that:

9

a. There were four persons travelling on the tractor

and only the deceased is seen injured.

b. There is no motive established.

c. There was no connection with the ocular and medical

evidence.

d. She reminds the Court that the accused have been

acquitted under the Arms Act, 1959.

10. Before we discuss the evidence, we think it appropriate to refer to the injuries actually suffered by the deceased.

PW3 is the Doctor. The following are the injuries noted by

PW3, which are noted as ante mortem injuries besides his

evidence inter alia:

“External Examination:-

One middle-aged person, upon dead body R.M. staining was present and upon his body stiffness was there stomach was swollen and left eye was not there. Upon the body of deceased. During body examination following pre death injuries were found:-

(1) Cut wound 15 cm x 2 cm in the upper part of dead and dead bone was broken.

(2) Cut wound 16 cm x 2 cm left side of the face which was extended from behind

10 the ear to face. Due to that larbon of ear and bone of mandible jaw had been broken.

(3) Cut wound 3 cm x 2 cm at right side of the face, in which bone of right jaw had been broken.

(4) Gunshot wound entry 3 cm x 2.5 cm at left side of back 6 cm from shoulder bone towards lower side. Upon putting prone in that was coming toward upper side and front side. Upon cutting the bone one tikle of plate was found blacking totem was present. No scorching was there.

(5) Gunshot wound of entry on right side of chest which had fractured the color bone and rib. Upon proning it was going to backside and lower side. (6) Cut wound 3 cm x ½ cm right side of chest in the side of nipple.

External Examination

(1) Scull bone was broken brain membrane was torn. In the chest third and fourth rib and fifth. Towards left and first. Second of right side was broken. Both the lungs were torn, heart also was torn. 16/15 teeth in the mouth were there. There was no food in the stomach.

In my opinion death of the deceased was caused because of shock due to pre-death injuries and excessive bleeding. At the time of examination, Examination report was prepared by me, which is in my handwriting and signature. It was before me on the file. Upon this Ex. Ka 3 was put.

11 During body examination 2 tikle card board and 34 pallet had removed which were sealed and was handed over to concerned constable and clothes of deceased shirt, tahmad, underwear, kada, kripall. Total 5 piece and police documents and dead body was handed over to police people.

Above injuries are possible to be caused with sword, pistol, spear and sharp weapon on 22.8.92 at 5:30 PM in the evening.

The detail of possible symptom of post-death is given above in the column in postmortem report, 12 hrs difference in period of death, then said, six hour difference can be, that is, death is possible to be also in the night of 22.8.92. The shirt of deceased was cut or not, he does not remember. The injury No. 5 can be caused in such condition when striking person assault by standing in height. The injury No. 4 is from down to up side, i.e. Striking person fire the short from down side upon injured, then above both injuries can be caused by firing from the distance of 3 feet. The above injuries are of total two fire. Deceased would have taken the food before 8 hours, because in his stomach no contents were found.

After 8 hrs of having food, food is digested.”

11. It was found that the skull bone was broken, brain

membrane was torn. In the chest, third and fourth rib and

12 fifth. Towards left and second of right side was broken.

Both the lungs were torn. Heart also was torn. 16/15 teeth

in the mouth were there. There was no food in the stomach.

He says further that in his opinion, death was caused

because of shock due to pre-death injuries and excessive

bleeding.

12. A perusal of the description of the injuries would show that injuries 4-5 were gunshot injuries. The other four

injuries were cut wounds.

13. This is a case of direct evidence.

14. PW1, a 17-year old son of the deceased, has deposed,

inter alia, as follows:

He along with his father (deceased),

mother and maternal uncle were travelling in

a tractor with his deceased father driving

it. A bullock cart was there on the road which

was parked in the centre. This cause them to

stop the tractor. Resham Singh, Darshan

Singh, Jagir Singh with pistols in their

hands and the other accused with other deadly

13 weapons, appeared. PW1 further says that

Resham Singh fired the shot from the pistol

which struck the back of his father and he

fell down from the tractor. At that time, PW2

and one Gurdeep Singh were coming on cycles

behind their tractor. When the deceased fell

down, then, Pahalwan Singh with sword,

Darshan Singh and Jagir Singh with pistol,

Veer Singh and Daleep Singh with other deadly

weapons, assaulted his father. Being empty

handed, as they were not having any arms, they

could not save his father. PW1 says that he

knew the accused because they were their

neighbours. There was enmity between the

deceased and the accused acted due to not

getting the road constructed and having

passage.

In the cross-examination, he, inter alia, states as

follows:

14

He has stated in the complaint that after

firing shot by Resham Singh and falling down

of his father, the other accused had fired and

assaulted. He gave same statement to the

Darogaji. He has no explanation for the

statement not being in the FIR. PW2 is married

to his father’s sister. He lives about 2 to

2½ kilometres away from his village. Gurdeep

Singh lives 10 to 12 kilometres away from his

village. He is alive. After half quarter to

one hour, Police came to the spot of incident.

That it was quarter to nine. Police filled-up

Panchnama at the spot which was filled in the

night. Panchnama was filled in the torch

light. The Panchnama was filled-up and PWs 1

and 2 are the witnesses to the Panchnama.

Three of the two accused were arrested on the

next day. They were Daleep Singh, Jagir Singh

and Darshan Singh. They went to the Police

Station on cycles. Ishwar Singh, Preetam

15 Singh (PW4-maternal uncle) and the mother of

the PW1, accompanied him. Ishwar Singh is the

resident of village Kisanpur which is 7

kilometres further from his village. For

lodging the report, he went to Nanakmatta

Police Station. They were coming from

Nanakmatta. From their itself, they went back

to lodge the report. Ishwar Singh was

standing in the way at the house of maternal

uncle in village Sunkari which is a village

adjacent to the road. Ishwar Singh went to the

Police Station with him. Ishwar Singh lodged

the report at the Police Station. He and his

mother and maternal uncle had told Ishwar

Singh about the incident. House of the

accused and their house, are located nearby.

Suggestion that they had made three other

persons flee from the village and had taken

possession of their land, due to which there

was enmity, was denied. There was no other

16 tree except semal tree on the spot. Bushes are

there on both sides of the road. The Semal

tree is on the eastern side of the road. They

took one hour in coming to Nanakmatta from the

village. PW1 was sitting on the right side in

the tractor. PW4-maternal uncle and father of

PW1 were sitting on the left side of the

tractor. There were no rains at that time. The

bullock cart was empty. They had stopped the

tractor at the distance of 4-5 steps. The

light of the tractor was burning. All the

accused came, stood at front and all the three

had fired the shot. Firing was done from the

front. The other people climbed upon the seat

of the tractor itself, assault was done with

sword, spear, etc.. His father had fallen

down at the seat of the tractor itself.

Accused ran away. The shots were fired from

the distance of 5-7 steps near to the bullock

cart. The Darogaji had seen the blood on

17 tractor at the spot. The assaults with the

sword, spear and sabre were done one to two

times. They had not taken the tractor to the

Police Station because the dead body was

lying on it.

15. PW2, who was referred to by PW1 as one of the persons

who were following them on cycle, corroborates PW1 that the

deceased was driving the tractor, and along with him, PW1,

his mother and maternal uncle were sitting. He deposes about

the bullock cart. The tractor stopped. The threat by the

accused who came out, is referred to. The firing by Resham

Singh at the back of the deceased, and Darshan Singh and

Jagir Singh, firing the shots from the front, and the others

assaulting are deposed to. He claims to have gone along with

PW1 to lodge the report. The report was got written from

Ishwar Singh. He has told the names of the accused at the

time of the filling of the Panchnama. He earlier says that

on the day of the incident, at the spot also, Police did

the inquiry after filling the Panchnama. At that time,

18 Police did not enquire with him about the incident. He

denies as incorrect that the name and the address of the

accused was not known till the filling of the Panchnama,

and it is on account of that, that the name of the accused

is absent in the Panchnama. PW1 and his parents had not met

him at Nanakmatta on the day of the incident. PW4-maternal

uncle also had not met. Tractor light was not burning. All

the accused were standing behind the bullock cart, when they

saw. There is a tree also nearby. After giving threat,

firing started. They were standing near in front of tractor.

Resham Singh had fired the shot from behind after climbing

in tractor which had struck at the back of the deceased.

Firing was done thrice. Daleep Singh attacked with spear.

Jagir Singh attacked with spear from front in the stomach.

Veer Singh attacked with sabre from behind on the head.

There were no bushes on both sides but crop was there.

Accused had struck one-one time with sword, sabre and spear.

Swarn Singh-PW1, his mother and PW4 had gone on foot to

lodged the report. He had also gone with them on foot holding

the cycle. Four people went. The report was written sitting

19 at the Police Station. PW1 had written the report. PW1 is

educated. Police had remained at the spot till 08.00 A.M.

in the morning. It did not rain on that day.

16. PW4 is the maternal uncle. He, in chief examination,

stated that at 05.30 P.M., he was at home on 22.08.1992.

He had not seen any incident. In cross by prosecution, he

would say that PW1 went to lodge the report in the morning.

He also came to know in the morning that the deceased had

died. PW1, Veera Kaur-mother of PW1 and Gurdeep Singh, all

came to know about the incident in the morning and had gone

near the dead body in the field and thereafter gone to file

the report.

17. PW5 is the Sub-Inspector of Police. During

investigation, he deposes that he had taken the statement

of PW1. He deposes about the recovery statement by Darshan

Singh which leads to the recovery of the pistol. Likewise,

on the statement of Pahalwan Singh, the sword was recovered.

Case under Section 25 of the Arms Act was registered at 1930

hours against Darshan Singh on 23.08.1992. On 28.08.1992,

Resham Singh, Daleep Singh, Jagir Singh and Veer Singh were

20 arrested at 08.05 P.M. in the night. He speaks about the

recovery of the 12-bore pistol on the statement of Resham

Singh, one spear on the statement of Daleep Singh and one

sabre on the statement of Veer Singh. The recovered goods

were sealed separately. Case was registered against Resham

Singh under Section 25 of the Arms Act, 1959. He prepared

the site map which was produced as Ka-18. He states that

he had reached the place of incident in the night of

22.08.1992 and due to dark, the Panchnama of the body could

not be done on the same day. The investigation was done by

PW5 till 28.08.1992. Thereafter, it was handed over to one

Davendra Singh. In cross-examination, he would say as

follows:

No serial number is there upon any

pistol. Pistol without opening cannot be

closed. Another pistol open with rust is

there. Barrell is not getting opened. At this

time, both the pistols are not in working

condition. He does not remember as to after

how many days of recovery, the pistols and

21 empty cartridges were sent to Analyzer. It

was sent on 25.11.1992 by Special Messenger

through the Munsif Magistrate Khateena which

was received on 28.11.1992. He is neither a

Ballastic Expert or did he have any special

training in this regard.

In Ka 6, in “Death” column, time of death

has not been mentioned. Time of dispatch of

body from “Police Headquarters”, is not

recorded.

18. He had filled-up the Panchnama on the next day in the

morning. When he had reached there, due to insufficient

light on the spot, Panchnama could not be filled at that

night. The dead body was lying in the paddy field at the

side of the road. On eastern side of the road, semal tree

is there. Neither the ox and the bullock cart were found

and taken into possession.

19. PW6 is Devendra Singh who carried on the investigation

as per orders of the Magistrate dated 11.09.1992. He

22 prepared Site Map-Ka 19. PW6 continued with the

investigation, and in cross-examination, he states as

follows inter alia:

“The statement of Shri Kamal Ram Arya, S.I. and S.O. Nanakmatta was taken on 7.10.92. I had taken the statements of witnesses Pratap Singh on 7.10.92. Witnesses Veera Kaur, Pratap Singh, Preetam Singh, Harnam Singh and Munsha Singh had not told me the number of the tractor. Veera Kaur had deposed me that Resham Singh had fired upon my husband, who was sitting on the tractor and Pahalwan Singh had assaulted with sword, due to that her husband fell down from the tractor. Same way Pratap Singh also had given the statement.”

20. It may be true that evidence regarding the statement

in Section 161 Cr.PC is permissible only as contemplated

in Setion 162 of the Cr.PC and Section 145 of the Indian

Evidence Act, 1872. What is relevant is the fact that the

mother of PW1 who is the wife of the deceased and, more

importantly, who was allegedly travelling in the tractor,

was the most important witness and she was not examined.

21. This is a case where the Trial Court convicted the

accused and the High Court has, in appeal filed by the

23 accused, acquitted them. This appeal is generated by

special leave. What are the contours of the jurisdiction

of this Court in this matter? We would only refer to two

judgments of this Court in this regard.

22. In The State Government, Madhya Pradesh v. Ram Krishna

Ganpatrao Limsey and others4, this is what this Court, inter

alia, held:

“5. … The exercise of this extraordinary jurisdiction is not justifiable in criminal cases unless exceptional or special circumstances are shown to exist or that substantial and grave injustice has been done. In the case of an order of acquittal where the presumption of the innocence of an accused person is reinforced by an order of acquittal of a High Court, the exercise of this jurisdiction would not be justified for merely correcting errors of fact or law. An occasion for interference with an acquittal order may arise, however, where a High Court acts perversely or otherwise improperly or has been deceived by fraud.”

23. In State of Uttar Pradesh v. Guru Charan and others5,

we noticed the following discussion at paragraphs 41 to 43:

4 AIR 1954 SC 20 5 (2010) 3 SCC 721 24 “41. In Banne case [(2009) 4 SCC 271:

(2009) 2 SCC (Cri) 260], the settled legal position which has been crystallised in a number of judgments has been reconsidered and reiterated. The principles emerging are restated in the following words: (SCC p. 286, paras 27-28) “27. The following principles emerge from the aforementioned cases:

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 to be innocent until proved guilty. The accused possessed this presumption when he was before the trial court. The High Court's acquittal bolsters the presumption that he is innocent.

3. There must also be substantial and compelling reasons for reversing an order of acquittal.

This Court would be justified in interfering with the judgment of acquittal of the High Court only when there are very substantial and compelling reasons to discard the High Court's decision.

28. Following are some of the circumstances in which perhaps this Court

25 would be justified in interfering with the judgment of the High Court, but these are illustrative not exhaustive:

(i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position;

(ii) The High Court's conclusions are contrary to evidence and documents on record;

(iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case;

(v) This Court must always give proper weight and consideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal.”

42. We may also notice here the observations made by this Court in State of U.P. v. Harihar Bux Singh [(1975) 3 SCC 167 : 1974 SCC (Cri) 799] with regard to the scope of interference by this Court under Article 136 of the Constitution. It is observed as follows: (SCC p. 170, para 14)

26 “14. In an appeal under Article 136 of the Constitution, this Court does not interfere with the finding of acquittal recorded by the High Court unless that finding is vitiated by some glaring infirmity in the appraisement of evidence.

The fact that another view could also have been taken on the evidence on record would not justify interference with the judgment of acquittal. The judgment of the High Court in the present case has not been shown to suffer from any such weakness as might induce us to interfere. The appeal consequently fails and is dismissed.”

43. The same view has been reiterated by this Court in State of U.P. v. Gopi [1980 Supp SCC 160 : 1979 SCC (Cri) 630] wherein it is observed as follows: (SCC p. 161, para 2) “2. … There may be something to be said for this view of the High Court and, if we were sitting as a court of appeal, we may have taken a different view and may have accepted the statements of PWs 4 and 6. But that is no reason to set aside the judgment of the High Court for after consideration of the various aspects of the case it cannot be said that the view taken by the High Court was not reasonably possible.”

(Emphasis supplied) 27

24. Having set out the boundaries of this Court’s

jurisdiction in the matter, let us examine what weighed with

the High Court.

25. In the first place, it is stated that there were

material variations in the evidence of PWs 1 and 2. As to

what these variations are, they have not been culled out

in the judgment. We, however, find the following aspects:

a. PW1 has stated that after half quarter to one hour,

Policemen have come to the place of incident. Police

had filled the Panchnama at the spot which was filled

in the night. The Panchnama was filled in the torch

light. PW2, on the other hand, says that Panchnama of

the dead body was done on the next day in the morning.

PW5-the Police Inspector, who did the Panchnama, has

stated that on 23.08.1992 (next day), at the place of

incidence, after filling the Panchnama of the dead body

recorded and after reading, got the signatures of the

Panches done. He further reiterates this when he says

that he had reached the place of incidence in the night

of 22.08.1992, and due to dark, the Panchnama of body

28 could not be done on the same day. A Sub-Inspector and

PAC were posted for security of the dead body.

b. PW1 says that he had got report written of the incident

from Ishwar Singh and gave to the Police Station.

Ishwar Singh went to the Police Station with him. He

wrote the report at the Police Station. PW1, his mother

and maternal uncle had told to Ishwar Singh about the

incident. PW2, on the other hand, would say that along

with PW1, he also went to lodge the report. He also said

that PW1 got the report written from Ishwar Singh and

gave it to the Police Station. In cross-examination,

however, he stated that PW1, his mother and maternal

uncle had gone on foot to lodge the report. PW2 had also

gone with him on foot holding the cycle. Four people

had gone. PW1, no doubt, does not appear to refer to

PW2 as having accompanied him to the Police Station.

PW2 further says that the report had been written

sitting at the Police Station. More importantly, he

deposed that PW1 had written the report and that PW1

is educated. As can be noticed, according to PW1, the

29 report was got written through Ishwar Singh. PW2 also,

in his examination, has given the same version but in

cross-examination, as noticed, he states that the

report was written by PW1.

c. According to PW1, the light of the tractor was burning.

According to PW2, bulbs were, however, off.

d. According to PW1, there were bushes on both sides of

the road. PW2, however, deposes that there were no

bushes nearby of road but crop was there.

e. PW1 deposed that they went to the Police Station on

cycles. However, PW2 has deposed that PW1, his mother

and PW4 had gone on foot to lodge the report and that

PW2 had gone with them on foot holding the cycle.

f. Coming to the most important aspect of the matter,

viz., as the actual unfolding of the incident, PW1 has

stated that Resham Singh fired the shot from pistol

which struck at the back of his father. When his father

fell down, then, others attacked. All the accused stood

at front and all the three had fired the shot. He

further deposes that the firing was done from the

30 front. Other people climbed on the tractor. Upon the

seat of the tractor itself, assault was done with

spear, sword, etc. Total three shots were fired. The

shots were fired from the distance of 5-7 steps near

to the bullock cart.

26. PW2, who was coming on cycle, according to the

prosecution, behind the tractor and witnessed the incident,

also has deposed that Resham Singh fired the shot by the

pistol at the back of the deceased. Darshan Singh and Jagir

Singh fired from the front. Pahalwan Singh and Daleep Singh

attacked with other weapons from the front. When they saw

them, then, all the accused were standing behind the bullock

cart. Then, he says, Resham Singh had fired the shot from

behind after climbing in the tractor which had struck at

the back of the deceased. There were total three fires done.

Daleep Singh attacked with spear from the front in the

stomach. Veer Singh assaulted with sabre from behind on the

head.

31

27. These are apparently the variations which appear to

have impressed the High Court.

28. Before we deal with them, let us have a look at the other aspects which weighed with the High Court. PW2 was found

to be not a non-partisan witness being related to the

informant. PW4 is the maternal uncle of PW1, who, according

to PW1, was travelling with him in the tractor. He has turned

hostile. It is worthwhile to advert to what PW4 has deposed:

“On 23.08.1992 Darogi had not recovered any sword and pistol in front of me from the chhappar of Pahalwan Singh and Darshan Singh. No incident had taken place before me. Darogaji had not asked anything from me about the incident. His statement under section 361 Cr.P.C. was read. He said, I cannot say the reason that how my such statement was recorded. It is wrong to say that after meeting the accused today I am not telling this thing.

About the incident, I came to know in the morning. That Singara Singh had died. His dead body is lying in the field. Swarn Singh went to lodge the report in the morning. He also came to know in the morning only that Singara Singh had died.”

32

29. The further circumstance is the improbability of the

accused fleeing away in the bullock cart after inflicting

wounds and firing.

30. The next circumstance relied upon by the High Court is

the fact that PW1 deposed that the light of tractor was on

whereas PW2 deposed that the bulbs of the tractor being off.

Trial Court has got over it by reasoning that if the bullock

cart was standing blocking, then, blowing the horn and

burning the light by the driver is natural and possible.

PW2 was coming on the cycle behind the tractor and it may

not have been possible for him to know that the tractor

lights were burning or not. At any rate, this by itself is

not significant contradiction or circumstance as would

merit consideration in the matter of reversing a

conviction.

31. The next circumstance relied on by the High Court is

that according to the prosecution case, PW1, his mother and

PW4-his uncle, were travelling along with the deceased in

the tractor. They were sitting on the tractor and on the

mudguard. If there was firing, as projected in the

33 prosecution case, the High Court found it unnatural that

these persons would not suffer any pellet injury when firing

was done from the front.

32. Then, we come to the circumstances which relate to the

inconsistency between the ocular evidence and also the

medical evidence. PWs 1 and 2 have both deposed that three

shots were fired. The medical evidence, undoubtedly, would

show that there were two gunshot injuries, viz., injury no.4

and injury no.5, which we have set out earlier. Gunshot

wound entry is on the left side of the back from the shoulder

bone towards the lower side. No scorching was found. Injury

no.5 was the gunshot wound of entry on the right side of

the chest which had fractured the collarbone and rib. Upon

pruning, it was going to back side and lower side.

33. Regarding the injury (injury no.4), being suffered in

the back, the High Court has noted that the case of the

informant is that the accused came abusing in front of the

tractor and then inflicted injuries with the weapons which

they were carrying. The court records that the learned AGA

was gracious enough to admit that the medical evidence did

34 not support the eyewitness account. It is also found that

injuries sustained by the sharp-edged weapons were from

down to top and not up to down, and therefore, there was

inconsistency between the eyewitness account and medical

evidence in this respect also. The High Court further

reasons that if PW1 is believed that Resham Singh’s bullet

hit at the back of the deceased, then, there is no

explanation for ante mortem injury no.5 where the wound of

entry is on the right of the chest with blackening and

tattooing present. There was no explanation found for

injury no.6 incised wound of 3 cm. x ½ cm. on the right side

of the chest near the nipple. In other words, it is found

that if PW1 is believed, then, there would be no ante mortem

injuries on the front of the deceased [This is apparently

a mistake]. In normal course, if the assailants have

attacked from the front, as is the prosecution case, there

is justification for injuries nos. 5 and 6. But there is

no justification for injury no.4. The High Court further

reasons that if the prosecution witness is believed that

the deceased was hit from the front, then, the injury no.4

35 should not have been there. It is further noted by the High

Court that it is not the case of the prosecution that the

deceased, while driving the tractor, bent in such a way that

the bullet hit his back. The statement by PW2 that Resham

Singh stepped into the tractor and fired from behind which

hit the deceased, appeared to the High Court a new

development. PW3-Doctor, in his cross-examination, deposed

that injury no.5 was possible when the assailants hit the

victim from a height. Injury no. 4 was possible, according

to the medical officer, when the assailants fired on the

victim from below (comparatively low level). It is on this

basis, the High Court reasons that reasonable suspicion

arises whether the incident took place in the manner

depicted by the eyewitness. Medical evidence does not

support the eyewitness account, it was found. It is on this

basis, that the High Court has taken a view that the accused

deserve to be acquitted.

34. PWs 1, 2 and 4 are the witnesses for the prosecution

who were stated to have witnessed the incident. There can

be no doubt that the deceased died a brutal death. The nature

36 of the injuries leaves us with no doubt in this regard. The

only question is whether these injuries were caused by the

accused and whether the incident took place in the manner

spoken to by the prosecution witnesses.

35. The mother of PW1, who was travelling along with the

deceased, has not been examined even though her statement

has been taken as is proved by the statement of the

Investigating Officer. PW4-brother-in-law of the deceased,

as noticed by us, has turned hostile. He denied that any

such incident happened before him. He has deposed that he

came to know in the morning that the death has taken place.

He further has deposed that the dead body was lying in the

field and that PW1 went to lodge the report in the morning

and he has also come to know in the morning only about the

death. He further deposed that the wife of the deceased and

the cyclists, all came to know about the incident in the

morning and thereafter they went to lodge the report.

36. In the FIR, a contradiction was noticed by the Trial

Court itself vis-à-vis the deposition of PW1. In the

testimony of PW1, he has attributed overt acts by Jagir

37 Singh and Daleep Singh whereas it is not so found in the

FIR. In the FIR, what is recorded is, inter alia, that Resham

Singh fired the shot which struck at the back of the

deceased. Then, he says Pahalwan Singh with sword, Darshan

Singh with pistol and Veer Singh with sabre (Kappa),

assaulted. No acts are attributed in the FIR, as is, in fact

spoken to by PW1 in the court against Daleep Singh and Jagir

Singh. In the court, PW1 has stated that when his father

fell down, then, Pahalwan Singh with sword, Darshan Singh

with pistol, Veer Singh with sabre, Jagir Singh with pistol

and Daleep Singh with spear, assaulted his father. PW2 has

also sought to implicate Jagir Singh and Daleep Singh. Thus,

the nature of the involvement of Jagir Singh and Daleep

Singh, according to version of PWs 1 and 2, involves a

departure from the case set out in the FIR.

37. Another aspect to be noticed is that PW2 was a panch

witness. Panchnama was held, as already concluded by us,

on 23.08.1992. There is no dispute in this case about

identification. In other words, there is no case for the

accused that PW2 did not know them. Thus, PW2, it must be

38 taken, knew them. PW2 was admittedly a panch witness.

However, PW2 does not name any of the accused when the

Panchnama took place on 23.08.1992. According to him, he

did name them but PW5 says otherwise. The Trial Court has

overcome this anomaly by holding that the purpose of holding

the Panchnama (inquest) would not comprehend within it, an

inquiry into who has committed the offence.

38. It is true that this Court has repeatedly held that the purpose of inquest under Section 174 of the Cr.PC, as

contained in the said provision, the person holding the

inquest, in short, is not to make an inquiry about who are

the accused (See in this regard the judgment in Tehseen

Poonawalla v. Union of India and another6). But is equally

true that PW2 has not taken the names of any of the accused

before the Investigating Officer contrary to his evidence

as is proved by the evidence of the Officer.

39. It is also pressed before us by the State that the High

Court has ignored the aspect relating to recovery of the

weapons used by the accused. PW5-Investigating Officer has

6 (2018) 10 SCC 498

39 spoken about recovery being effected from Darshan Singh and

Pahalwan Singh. From Darshan Singh, the pistol was got

recovered. From Pahalwan Singh, the sword was got

recovered. This is done pursuant to the arrest on

23.08.1992. On 28.08.1992, Resham Singh, Daleep Singh, Veer

Singh and Jagir Singh were found and arrested. Pursuant to

interrogation, PW5 speaks about their stating that they had

committed the murder along with Daleep Singh and Pahalwan

Singh on 22.08.1992. PW5 speaks about recovery of 12-bore

pistol from Resham Singh, one spear by Daleep Singh and one

sabre by Veer Singh. In fact, the High Court has indeed not

adverted to the recoveries, as such.

40. Appellant-State seeks support from judgment in Mangoo

v. State of Madhya Pradesh (supra). Therein, this Court took

the view that when the medical evidence was not in entire

conflict with the ocular version of child witness, it would

not be fatal to the prosecution. It was a case where there

were discrepancies regarding the number of blows inflicted

and which side of the weapon was used in the first instance. 40

41. In Abdul Sayeed v. State of Madhya Pradesh7, this Court discussed elaborately the case law on the subject of

conflict between medical evidence and ocular evidence:

“Medical evidence versus ocular evidence

32. In Ram Narain Singh v. State of Punjab [(1975) 4 SCC 497 : 1975 SCC (Cri) 571 : AIR 1975 SC 1727] this Court held that where the evidence of the witnesses for the prosecution is totally inconsistent with the medical evidence or the evidence of the ballistics expert, it amounts to a fundamental defect in the prosecution case and unless reasonably explained it is sufficient to discredit the entire case.

33. In State of Haryana v. Bhagirath [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] it was held as follows: (SCC p. 101, para 15)

“15. The opinion given by a medical witness need not be the last word on the subject. Such an opinion shall be tested by the court. If the opinion is bereft of logic or objectivity, the court is not obliged to go by that opinion. After all opinion is what is formed in the mind of a person regarding a fact situation. If one doctor forms one opinion and another doctor forms a different opinion on the same facts it is open to the Judge to adopt

7 (2010) 10 SCC 259 41 the view which is more objective or probable. Similarly if the opinion given by one doctor is not consistent with probability the court has no liability to go by that opinion merely because it is said by the doctor. Of course, due weight must be given to opinions given by persons who are experts in the particular subject.” (Emphasis added)

34. Drawing on Bhagirath case [(1999) 5 SCC 96 : 1999 SCC (Cri) 658] , this Court has held that where the medical evidence is at variance with ocular evidence, “it has to be noted that it would be erroneous to accord undue primacy to the hypothetical answers of medical witnesses to exclude the eyewitnesses' account which had to be tested independently and not treated as the ‘variable’ keeping the medical evidence as the ‘constant’”.

35. Where the eyewitnesses' account is found credible and trustworthy, a medical opinion pointing to alternative possibilities cannot be accepted as conclusive. The eyewitnesses' account requires a careful independent assessment and evaluation for its credibility, which should not be adversely prejudged on the basis of any other evidence, including medical evidence, as the sole touchstone for the test of such credibility.

42

“21. … The evidence must be tested for its inherent consistency and the inherent probability of the story; consistency with the account of other witnesses held to be creditworthy; consistency with the undisputed facts, the ‘credit’ of the witnesses; their performance in the witness box; their power of observation, etc. Then the probative value of such evidence becomes eligible to be put into the scales for a cumulative evaluation.” [Vide Thaman Kumar v. State (UT of Chandigarh) [(2003) 6 SCC 380:2003 SCC (Cri)1362] and Krishnan v. State [(2003) 7 SCC 56:2003 SCC (Cri) 1577] at SCC pp.

62-63, para 21.]

36. In Solanki Chimanbhai Ukabhai v.

State of Gujarat [(1983)2 SCC 174:1983 SCC (Cri) 379: AIR 1983 SC 484] this Court observed: (SCC p. 180, para 13) “13. Ordinarily, the value of medical evidence is only corroborative. It proves that the injuries could have been caused in the manner alleged and nothing more. The use which the defence can make of the medical evidence is to prove that the injuries could not possibly have been caused in the manner alleged and thereby discredit the eyewitnesses. Unless, however the medical evidence in its turn goes so far that it completely rules out all possibilities whatsoever of injuries taking place in the manner alleged by eyewitnesses, the testimony of the eyewitnesses cannot be thrown out on the

43 ground of alleged inconsistency between it and the medical evidence.” (Emphasis added)

37. A similar view has been taken in Mani Ram v. State of U.P. [1994 Supp (2) SCC 289:

1994 SCC (Cri) 1242] , Khambam Raja Reddy v. Public Prosecutor [(2006) 11 SCC 239 : (2007) 1 SCC (Cri) 431] and State of U.P. v. Dinesh [(2009) 11 SCC 566 : (2009) 3 SCC (Cri) 1484] .

38. In State of U.P. v. Hari Chand [(2009) 13 SCC 542:(2010) 1 SCC (Cri) 1112] this Court reiterated the aforementioned position of law and stated that: (SCC p. 545, para 13) “13. … In any event unless the oral evidence is totally irreconcilable with the medical evidence, it has primacy.”

39. Thus, the position of law in cases where there is a contradiction between medical evidence and ocular evidence can be crystallised to the effect that though the ocular testimony of a witness has greater evidentiary value vis-à-vis medical evidence, when medical evidence makes the ocular testimony improbable, that becomes a relevant factor in the process of the evaluation of evidence. However, where the medical evidence goes so far that it completely rules out all possibility of the ocular evidence being true, the ocular evidence may be disbelieved.” 44

42. There are certain other aspects which strike us. The

incident allegedly unfolded when the deceased along with

PW1, his wife, and brother-in-law (PW4) were coming back

from Nanakmatta in a tractor. The case of the prosecution

further is that the accused came forward and committed the

acts attributed to them. There is an allegation that some

relatives accompanying the deceased were sitting on the

mudguard of the tractor. There is a case for the prosecution

that the deceased fell from the tractor when PW1 was asked

how he went to the Police Station to lodge the report and

whether he had taken the tractor, his answer was that since

the body of his father was lying on it, they did not take

the tractor and they went on foot. Therefore, it must be

taken that the body was on the tractor. PW5-the

Investigating Officer, on the other hand, deposed that the

dead body of the deceased was lying in the paddy field at

the side of the road. PW5-original Investigating Officer

does not speak a word about the tractor. Was an effort made

to trace the tractor and to make it available in evidence

as the details about the tractor would have shed light on

45 the position of the deceased and of the others and

facilitated the proving of the prosecution case. According

to PW1, the tractor was left behind as the dead body was

lying on it. As noted, PW5 speaks otherwise and the dead

body was found at the paddy field at the side of the road.

Whether, therefore, the tractor was in fact used as claimed

by the prosecution? There is no evidence regarding any

investigation conducted by the Officer in regard to the

tractor. The nature and size of the tractor remains a

mystery.

43. We have already noticed that there are contradictions

in the evidence of PWs 1 and 2 as to who wrote the report.

Did PW1 himself write the report as claimed by PW2 in his

cross-examination or was it written by Ishwar Singh, who

according to PW1 wrote the report? There are contradictory

answers given by PWs 1 and 2 as already noticed.

44. Another aspect which strikes us is as follows:

According to PW1, his mother who was

travelling with him and his father and who

46 has witnessed the entire incident, is

supposed have walked a good seven to eight

kilometres to the Police Station, if PW2 is

believed.

PW1 claims that he, his mother and his

maternal uncle (PW4) had told Ishwar Singh

about the incident, and after writing the

report, PW1 appended his signatures. As

already noticed, PW4-maternal uncle has

turned hostile. PW1 does not speak about PW2

accompanying them to the Police Station.

PW2, on the other hand, would state that he

also went along with them (not riding the

cycle but on foot). Is it likely that the

mother of PW1, who has witnessed the ghastly

murder of her husband and who would be

shell-shocked, would undertake the journey

seven to eight kilometres long or would she

rather not prefer to stay near the body of

her husband? She has not been examined.

47

45. If the incident had happened, as projected by the

prosecution, and PW1, his mother and PW4 were accompanying

the deceased apart from PW2 and other cyclists, would they

not immediately rush the body to the nearest hospital? In

fact, from the post-mortem report, it would appear that the

body reached the hospital only on 23.08.1992 in the

afternoon. These aspects create doubts in our minds and

strengthens the judgment of the High Court further.

46. As far as injury no.4 is concerned, quite indisputably, it has been sustained by the deceased on the back side. The

site of the injury is not the subject matter of any

controversy. Both, oral testimony and the medical evidence,

establish this fact. In regard to this fact, there is no

contradiction between the oral version of the witnesses and

the Expert opinion.

47. In fact, the doubt arises about the prosecution version from the oral testimony itself. As noticed already, PW1 is

already unambiguous when he states that all the accused came

at front and all the three had fired the shots. The firing,

48 PW1 was specific, was done from the front. He claims that

other people climbed on the tractor. This can mean that the

people who had not done the firing and who were otherwise

armed according to his version, climbed on the tractor. In

his earlier version, in the chief examination, he, on the

other hand, states that when his father fell down, the

Pahalwan Singh with sword, Darshan Singh with pistol, Veer

Singh with Sabre, Jagir Singh with pistol and Daleep Singh

with spear, assaulted his father. This itself manifests a

contradiction.

48. PW1 deposed that upon the seat of the tractor itself,

assault was done with sword, spear, etc. His father fell

down on the seat of the tractor. If the version of PW1 is

accepted, it is difficult to explain how injury no.4, viz.,

gunshot injury could be sustained by his father on the back.

It is to be immediately noticed that this does not involve

alluding to the medical evidence as it is not the

prosecution version that injury no.4 was not sustained in

the back side. It is to be noticed that according to PWs

1 and 2, the first shot was fired by Resham Singh. PW1 states

49 that he fired from the pistol which struck at the back of

his father. According to the prosecution version, deceased

was driving the tractor. We have already noticed the

non-availability of the details of the tractor.

Incidentally, PW1 gives the number of the tractor as 1815.

49. The real contradiction comes in the form of testimony

of PW2. PW2 states that Resham Singh fired the shot from

behind after climbing in tractor which had struck at the

back of deceased whereas PW1 has deposed that all the

accused came stood at front and all the three had fired the

shot. This is an inconsistency which goes to the root of

the matter. If the above version of PW1 is believed, it is

the deposition of PW2 which comes under a cloud. More

importantly, injury no.4, viz., the gunshot injury at the

back remains unexplained. For this, we do not have to go

into the contents of the medical evidence. It is not doubt

true that that the medical evidence also points to the

injury no.4 being sustained by the deceased on his back

side.

50

50. We have already noticed that PW2 has initially stated

that PW1 got the report written by Ishwar Singh. We have

further noticed that contrary to the evidence of PW1 that

the Panchnama of the dead body (inquest) was done on the

very same night in torch light, both PWs 2 and 5 have deposed

that Panchnama was done only on the next morning. PW2 takes

a stand that he had told the names of the accused at the

time of the inquest. There is not much dispute that the

inquest does not bear him out in this regard. PW2 has deposed

that Resham Singh fired the shot from behind after climbing

in the tractor which had struck at the back of the deceased.

PW1, on the other hand, has stated that the shots were fired

from the distance of five to seven steps near to the bullock

cart. Even proceeding on the basis on what the Trial Court

has accepted, viz., that five to seven steps near to the

bullock cart is not to be understood as five to seven steps

around the bullock cart but it would be away from the bullock

cart, and therefore, near to the tractor, PW1 has no case

that Resham Singh has fired the shot after climbing in the

tractor, thus, striking at the back of the deceased. PW2

51 speaks about Daleep Singh assaulting with spear and Veer

Singh assaulting with sabre from behind on the head. It is

to be noted that in the FIR, Resham Singh is stated to have

fired the shot which struck at the back of his father.

Pahalwan Singh with sword, Darshan Singh with pistol and

Veer Singh with sabre assaulted. No role has been attributed

in the FIR to Daleep Singh and Jagir Singh whereas when the

evidence opened, PW1 has gone on to attribute specific overt

acts to them also. While a FIR is not to be an encyclopaedia

of all that transpired, the omission to mention about actual

overt acts to Daleep Singh and Jagir Singh, creates serious

doubt about the version.

51. PW2 also stated that they had left the tractor at the

spot and had not taken it to the Police Station to lodge

the report as the dead body was on it. On the other hand,

the site of the dead body is the paddy filed, according to

PW5. The tractor is not referred to by PW5.

52. As regards the deceased falling down on being shot at

and assaulted, PW5 would state that PW1 did not tell him

52 anything (apparently, in the 161 statement about the fact

of the deceased falling down).

53. The bullock cart was not taken into possession by the

Officer.

54. The next aspect is about the recoveries attributed to

the accused based on the statements. PW5 has stated, inter

alia, as follows:

“Darshan Singh had told that pistol through which I had fired that has been kept hiding in the heap of straw (Bhoosa) in the house of Pahalwan Singh, can give after taking out and Pahalwan Singh told that the sword from which I had killed Singara Singh. That I have kept hiding in the heap of straw (Bhoosa) near my house, can give after taking out. We people went with accused and amongst the accused Pahalwan Singh had given one sword from the heap of straw near to his house and Darshan Singh had given one pistol 12 bore after taking out and said that it is, that pistol and sword which was used in the murder of Singhara Singh.”

55. PW5 has spoken about the recoveries effected from

Resham Singh, Daleep Singh and Veer Singh. Recovery of a

pistol was effected according to PW5 on the basis of a

statement given by Resham Singh; spear on the basis of

53 statement given by Daleep Singh and sabre on the basis of

the statement by Veer Singh.

56. The manner of effecting recovery has been described by

PW5 in the following words:

“In Ex. Ka 12 Darshan Singh and Pahalwan Singh told that we can given sword and pistol which has been kept hiding near the house of Pahalwan Singh. Accused moved ahead and went near to chhapper. Only one memo of recovery of Pahalwan Singh and Darshan Singh is there. Before preparing this memo, the statement of accused were not recorded on separate paper. In the same way memo of accused Resham Singh, Daleep Singh and Veer Singh also is one and not noted anywhere separately. But all the three said that we can give after going and all three accused moved ahead and carried at the place of recovery.”

The finding in the FSL Report that the cartridge

(apparently recovered from the site) has been fired from

the 12-bore pistol no.1/69, would not be sufficient for us

to hold that the prosecution version in this case stands

established and that too in an appeal against the acquittal.

In a criminal trial, the prosecution can succeed only

if the guilt of the accused is brought home. That the accused

54 may have done the crime barely suffices. The case of the

prosecution as sought to be made out must be established.

57. In the state of evidence, in this case otherwise, as

discussed, particularly bearing in mind the nature of the

limited jurisdiction this Court exercises qua the order of

acquittal rendered by the High Court, the appellant has not

made out a case in interfering with the impugned judgment

of the High Court. Resultantly, the appeals fail and are

accordingly dismissed.

..................J. (SANJAY KISHAN KAUL)

..................J. (K.M. JOSEPH) New Delhi, November 7, 2019.

55