http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: SMT. OMWATI ETC.

       Vs.

RESPONDENT: MAHENDRA SINGH & ORS.

DATE OF JUDGMENT:       07/11/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                THE 7TH DAY OF NOVEMBER, 1997 Present:               Hon’ble Mr. Justice M.M.Punchhi               Hon’ble Mr. Justice M.Srinivasan K.B.Sinha, Sr.  Adv., Ashok  Kumar Sharma  and  H.S.Kaicker, (Pramod Swarup  and R.K.Singh)  Adv. for  A.S.Pundir,  Adv., (R.S.Sodhi,  David   Rao)  Advs.   For  Indeevar   Goodwill, Adv/Advs., with him for the appearing parties.                       J U D G M E N T      The following Judgment of the Court was delivered: SRINIVASAN, J. 1.   These appeals  are directed against the judgment of the Allahabad High  Court in  Cr1. Appeal  Nos. 806-807  of 1988 reversing the  judgment of  the  Additional  Sessions  Judge Moradabad in  S.T. No.  608 of  1985 and  acquitting all the accused who  stood charged  under Section  148, 302/149  and 307/149 I.P.C. Crl. Appeal No. 25 of 1990 is by the widow of one of  the murdered persons while the other two appeals are by the State. 2.   The case of the prosecution was as follows:-      On 14.7.1985  Sohan Pal  Singh, PW 1 and his son Avdesh      Kumar PW 3 as well as one Inder Pal Singh were going on      motor cycle  of the  first of  them  from  the  village      Bilari to  the village  Chawra. At  the same  time  Raj      Kumar Singh and his son Dhirender Singh were proceeding      on another  motor cycle  along with them. At about 8.30      p.m. when they reached the village Bonda Ferozepur they      saw a tractor parked on the middle of the road with its      lights  on.  It  had  no  bonnet.  The  accused  namely      Mahendar Singh, Om Vir, Som Vir, Om Pratap Singh, Onkar      Singh and  Raghu  Raj  Singh  were  standing  near  the      tractor. One  of them  namely, Raghu  Raj  Sing  had  a      hasiya while  the other  had country-made  pistols. The      motor cycle  of Raj  Kumar Singh  was stopped on seeing      the aforesaid  persons on  the road and the other motor      cycle was  stopped a  few steps behind. the accused who      had pistols  fired at  Raj Kumar  Singh  and  Dhirender      Sing.  The   former  fell  down  on  receiving  gunshot      injuries. Raghu Raj Singh assaulted him with hasiya and      gave several  blows Dhirender Singh started to run away

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

    but was  cashed by  the accused.  Another tractor  came      from behind  which was  stopped by PW 1. Dhirender Sing      attempted to  climb on the said tractor but the accused      fired at  him as  a result of which he received gunshot      injuries and  fell down.  Ram Swroop,  PW 2 and his son      Nathu Singh  who had  come on the said tractor also got      gunshot injuries  when they  tried  to  save  Dhirender      Singh. Some  other persons  who had  come on  the  said      tractor ran  away. Both  Raj Kumar Singh and  Dhirender      Singh died on the sport as a result of the injuries. In      the meantime  villagers came  from the  village and the      accused boarded their  tractor and tried to escape. The      tractor got  stuck in the ditch and the accused left it      and ran  away. The  F.I.R. was lodged by PW 1 at police      station Kurh Fatehgarh at 10.00 p.m. on the same day. 3.   The accused  were not  tracable for three or four days. Three of  them  surrendered  on  17.7.85  in  the  court  at Moradabad and  the remaining  three persons  surrendered  on 18.7.85. The  y pleaded not guilty and stated that they were falsely implicated on account of enmity. One of them namely, Om Vir Singh stated that at the time of the occurrence he as on duty  in the cooperative bank at Moradabad and in support of his  claim he  examined ten  Branch manager  as PW 1. The prosecution examined ten witnesses. PWs 1 to 3 claimed to be eye witness.  The Additional  Sessions Judge  found all  the accused to  be guilty and convicted them, Mahender Singh, Om Vir Singh, Om Pratap Singh and Som Viar Singh were convicted under Section 148 302/149 and 307.149 I.P.C. while Rahgu Raj Singh was  convicted under Section 148 and 302/149 I.P.C. He was acquitted  of the  charge under  Section 307/149  I.P.C. Death sentence  was awarded  to Mahender Singh and Raghu and Raghu Raj   Singh  under  Section  302/149  I.P.C.  all  the accused  were  further  sentenced  to  undergo  three  years rigorous imprisonment  under  Section  148  I.P.C.  Mahendar Singh, Om  Vir Singh,  Om Pratap  and  Som  Vir  Singh  were further sentenced to seven years rigorous imprisonment under Section 307/149  I.P.C. All  the sentences  of  imprisonment were ordered to run concurrently. 4.   Two appeals  were preferred  before the High Court. One was by  Mahender Singh  and Raghu Raj Singh and the other by the  remaining   accused.  The  High  Court  held  that  the prosecution failed to establish the guilt of the accused and allowed  the  appeal.  The  conviction  and  sentences  were therefor sot aside. 5.   The widow of Raj Kumar Singh has filed  Cri. Appeal No. 25 of  1990. The  State of Uttar Pradesh has filed the other appeals. 6.   The main contention of the appellants is that there are three eye  witnesses for  the incident  in which the husband and the  on of  the appellant  in Crl. Appeal 25 of 1990 was brutally murdered  on account  of political  rivalry. It  is argued that  the reasons  given by  the High  Court for  not believing the  eye witnesses  are eroneous and flimsy. It is contended that  the  High  Court  has  made  much  of  minor discrepancies,  over-looking   the  circumstances  that  the witnesses were  giving evidence  in court  after a long time after the  occurrence  and  such  discrepancies  are  hardly sufficient to  reject the  evidence of  eye witnesses. It si submitted that  the names  of all the accused were mentioned in the F.I.R. which was lodged within a short time after the occurrence and  that PW  2 is an independent witness who had no axe to grind. According to the appellants the Trial Judge has considered  every aspect  of the matter and accepted the case of  the prosecution and the High Court is not justified in reversing the judgment of the Trial Court.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

7.   Per Contra, learned counsel for the respondents contend that  there  are  several  unexplained  factors  which  cast considerable doubt  on the  case of  the prosecution.  It is argued that  though the  judgment of  the High  Court is not quite  satisfactorily   worded,  it   is  clear   that   the circumstances referred to by the High Court are relevant and vital in  the matter  of appreciation  of  evidence.  It  is submitted that  there are  some missing links which make the case of the prosecution unacceptable. 8.   We have  gone trough  the entire evidence on record. We find it   difficult  to persuade  ourselves to hold that the prosecution  has  established  its  case  beyond  doubt.  As pointed out by the learned counsel for the respondents there are certain  factors which  remain  unexplained.  The  Trial Judge has  somewhat exceed  his limits and taken for himself the  task   of  explaining  some  of  the  circumstances  in rejecting the contentions of the defence. 9.   At the  out set, it must be pointed out that the motive for the  murder as  alleged by  the prosecution has not been satisfactorily established.  The case  of the prosecution is that the  deceased were  working for  Inder Pal Singh at the time of election of Pradhan from village Chawra held in 1982 in the  village Admittedly  Inder Pal  Singh was defeated in that election  and Mahendar  won the  same. Neither   of the deceased contested  the election.  If there  was  enmity  on account of  the election,  the person  against whom  accused would have  borne a grudge was inder Pal Singh who contested the election.  the said  Inder Pal  Singh was present at the scene of  occurrence sitting  on the motor cycle in front of the accused.  He was  left untouched without even a scratch. If really  the enmity  between the  accused and the deceased was on  account of  the election,  the accused   would  have attacked the  deceased as  well as  Inder Pal  Singh, if not Inder Pal  Singh alone.  There is  nothing on record to show that there  were class  between the  accused on the one hand and the  deceased or  other supporters of Inder Pal Singh on the other  at any  time before  this Incident.  It is wholly improbable   that  after  lapse  of  three  years  from  the election in which Inder pal Singh was defeated, the  accused should bear such a grudge as to kill the deceased. A look at the post  mortem reports  Ex. Ka  9 and  ka 10 shows several deep incised  wounds which  according to PW 8 were caused by some sharped-edged weapon, say, by hasiya. There are several such wounds  which indicate  that the  assailant  had  given repeated blows  with the weapon to the deceased. It gives an impression that  there was  some deep-seated  enmity between the deceased  and the assailant. The evidence on record does not prove  any such  deep-seated enmity between the deceased and Raghu  Raj Singh.  Learned counsel  for the  respondents points out the lacunae in the evidence with reference to the hasiya produced before the court as the weapon used by Raghu Raj Singh.  There is  no evidence  on record  regarding  the finger prints  or blood  stains  on  the  said  hasiya.  The failure on  the part of police to check the finger prints as well s  the blood  stains on the weapon is a vital factor to be taken  into account  against the  prosecution.  The  High Court  has  sent  for  the  weapon  and  also  examined  Dr. R.N.Katiyar, an  expert who  opined that the injuries on the body of the deceased could not be caused by a single blow of the hasiya.  the said  doctor stated  that the  post morterm examination report  does not show that the injury was caused by more than one blow. Considering the f act that as many as seventeen incised wounds were found on the body of Raj Kumar Singh, the  High Court  were found  on the body of Raj Kumar Singh, the  High Court found it difficult to believe that he

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

was assaulted  by only  one assailant  with a  sharp cutting weapon. The  High Court opined that there were more than one assailant armed  with the  such sharp  cutting weapons.  The opinion of the High Court cannot be considered to be totally baseless or perverse. 10.  In the  light of the aforesaid facts if the case of the prosecution with  reference to the motive for the accused to commit the  offence is  considered,  there  will  be  little difficultly in rejecting the same. No doubt, proof of motive is not  necessary to  sustain  a  conviction  but  when  the prosecution puts  forward a  specific case  as to motive for the crime,  the evidence  regarding the  same has  got to be considered in  order to  judge the probabilities. It is well settled that motive for a crime is satisfactory circumstance of corroboration  when there is convincing evidence to prove the guilt  of an  accused person  but it  cannot fill  up  a lacuna in the evidence. 11.  According to the prosecution, the accused were standing by the  side of  the tractor belonging to the of them namely Mahender Singh which had not bonnet at that time. It is also the case  of the  eye witnesses  that the  tractor could not cross a  trench on  the road  side and  the accused  left it there and  ran away.  Mahender Singh denied the ownership of the tractor.  the prosecution  has examined one Rayees Ahmed as PW  9 to  prove that  the tractor  was  sold  by  him  to Mahender Singh.  According to  his evidence he owned tractor No. DSW-5019 and sold it for a total consider of Rs.14,000/- to Mahender Singh about 5 years prior to his evidence. It is his version  that on  payment of  Rs.10,000/- Mahender Singh took possession  of the  tractor but did not pay the balance of Rs.  4,000/- He  had not  taken any  step to  recover the balance. According  to hm  the tractor was registered in the name of  his younger  brother and  his mother  but  he added that  he  did  not  know  in  whose  name  the  tractor  was registered in  RTO regarding  sale of  the tractor as he did not receive  the full  consideration. He  claimed to possess the paper  relating to  tract but none of them was produced. The Registration  Book was  stated to have been deposited in connection with  a ceiling case but no receipt was produced. He claimed  to have  sold the  sad tractor through one Munna mistry bu the latter has not been examined. A perusal of has evidence shows  that he  is wholly  untrustworthy. There  is nothing on  record  to  show  that  the  tractor  which  was recovered from  the scene of occurrence had the registration No. USW-5019.  The recovery  memo states  that there  was no number found  on that  tractor. The bonnet of the tractor is said to  have ben recovered from the field of Mahender Singh on 4.11.85 but the evidence on record does not show that the said bonnet was that of the tractor which was recovered from the scene  of occurrence. We have no hesitation to hold that the prosecution has miserably failed to prove the connection between the  said tractor  and the  accused Mahender  Singh. this circumstances  goes a long way to shake the credibility of eye witnesses 1 to 3. 12.   According to the prosecution there was another tractor at the  scene which  was being  driven by PW 2. According to the recovery report, there wee blood stains on that tractor. There is  no explanation as to why the police failed to take sample of  the blood  stains and test the same. That tractor was said  to have  been handed over by PW 10 Mr. K.D. Verma, the investing  officer to  one Dhoom  Singh for  custody for production in  court or before the police whenever required. The records  do not  disclose the capacity in which the said Dhoom Singh took the custody of the said tractor. 13.  A perusal  of the  evidence of  PW 10  shows that there

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

were several  corrections, cutting  and over writings in the punchanamas prepared  by him. While the eye witnesses denied the correctness  of some portions of the statements recorded by PW  10, the  later has deposed that on e of the witnesses did not make a statement as claimed by him. PW 2 has deposed that he told the Investigating Officer that two motor cycles had passed  by their tractor before the occurrence but PW 10 had stated  in his deposition that PW 2 did not state so. PW 2 has  also denied the correctness of some of his statements as recorded  by PW  10.  In  the  statement  recorded  under Section 161  Cr.P.C. PW  2 has  stated, "  a motor cycle was lying at  the place  of  occurrence  itself".  But  in  this deposition in  court PW  2 has said that he never stated so. One significant  circumstance is that the statements of PW 2 and his  son were  recorded by  PW 10  long afterwards  i.e. 25.7.85. The  version given  by PW  2 that  he was  not in a position to speak till then is not believable. 14.  The Trial Court has itself pointed out that Dr. Santosh of Bilary is a very important and material witness and ought to have  been examined  by the  prosecution. But  the  Trial Court has  opined that  the failure to do so was only due to the carelessness  of the  Investigation Officer and it would not impair  the evidence of the eye witnesses. We are of the opinion that  evidence of  the said doctor would have proved to be  an important  connecting  link  and  in  the  absence thereof, the  testimony of  PWs  1  and  3  lacks  credence, particularly because  there is  a vital  discrepancy between the two  witnesses in  the matter  of the time at which they proceeded  to   the  village   itself  is   questioned,  the prosecution ought to have examined Dr. Santosh. 15.  The Trial  Court has also proceeded on the footing that Inder Pal  Singh was murdered some time after the occurrence and some  of the  accused had  been chargesheeted  therefor. There is  no material  on record  in  support  of  the  said version and the Trial Court could not have taken the same as granted. 16.  The Trial Judge has allowed his imagination to run riot while  discussing   the  contention   of  the  defence  with reference to  the contusions found one the body of Raj Kumar Singh. The  Trial  Court  has  observed  without  any  basis therefore on  the evidence  "during this  process of hitting the accused  Raghu Raj  must have  certainly tried to have a grip of  Raj Kumar  Singh so that he could not stand and run away again  and in doing so he might have given him blows by his knee". The Trial Court has completely gone off the track in thinking so. 17.  The High Court has also taken note of the fact that PWs 1  to  3  could  not  have  known  the  accused  before  the occurrence so  as to  the able to identify them in court. IN that connection  reference is made to the order of the Chief Judicial Magistrate,  Moradabad dated  26.7.85 directing the holding of  identification parade  and the  failure  of  the police officials  to comply   with the said order. the Trial Judge has  accepted the version of the Investigating Officer that the  he was  not aware of the order passed by the Chief Judicial Magistrate.  It is  not necessary  for us  to place reliance  on   the  failure   of  the   Police  to  hold  an identification parade 18.  The circumstances  referred to by s earlier taken along with the  facts and  circumstance referred  to by  the  High Court would  lead cumulatively  to the  conclusion that  the case of  the prosecution  has not  been proved beyond doubt. The accused  are certainly  entitled to  the benefit  of the same. Consequently  we do  not  find  any  justification  to interfere with  the judgment  of the High Court. The appeals

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

fail and are dismissed.