REPORTABLE

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 168 OF 2006

Mahtab Singh & Anr.                   .. Appellants

Versus

State of  U.P.                                   .. Respondent

J U D G E M E N T

R.M. Lodha, J.

The judgment of  acquittal passed by the  IVth

Additional  Sessions Judge,  Farrukhabad on  December

20, 2000   in Session Trial Nos. 48/91 and 49/91 came to

be  overturned  by the Division Bench  of High Court  of

Judicature  at  Allahabad   vide  its   judgment  and  order

dated May 27, 2005.   High Court  found both  accused

guilty of the offence  punishable  under Section 302 read

with 34 I.P.C. and sentenced  them to life imprisonment.

Accused Mahtab Singh was found  guilty  of  an offence

under  Section  4/25  Arms  Act,  1959  as  well  and

sentenced to  six months rigorous imprisonment  on this

count.   Aggrieved, the accused are in appeal by special

leave.

2. Briefly put, the  prosecution case is :  Ganga

Singh (deceased) and his brother Vinod (PW 1)   owned

a small Flour Mill  at village  Kampil.  On  September 28,

1990 at 9.00P.M.,  while  returning from the betel shop of

Rajveer after purchasing bidi, a few steps away, at Tiraha

(junction of three roads), Mahtab  Singh (A-1) and Jaipal

(A-2)  – father  and  son  –  met  him.  Ganga  Singh

demanded  money  due  from   Mahtab  Singh.   Mahtab

Singh,  however,  rebuked  him.   Ganga  Singh  asked

Mahtab Singh  as  to    why   he was rebuking  when

money was   due  and payable  by  him.    Hearing  this,

Mahtab Singh  asked his son  Jaipal  to catch and kill

Ganga  Singh.     Jaipal  caught  hold  of  Ganga  Singh;

Mahtab Singh gave a knife blow  to Ganga Singh due to

which  Ganga  Singh  fell  down.   Vinod   (PW-1)  and

Ratiram (PW-2) who were  sitting under the  thatched roof

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near  Flour  Mill  and one Asarfilal  rushed towards    the

spot.   On seeing them, Mahtab Singh  and Jaipal  ran

away.  Ganga Singh was sent  to Primary Health Centre

at   Kayamganj  with  Asarfilal,  Balbir,  Shyam Singh  and

other family members.  Vinod  got the report written  from

one Charan Singh and  went to Kampil   police station.

Based on that,   First Information Report was registered

under Section 307 IPC.    Dr. G.K. Singh (PW-5), Medical

Superintendent, Primary Health Centre, Kayamganj sent

an intimation at about  10.30 P.M. to the police station,

Kampil  about the death of Ganga Singh.  The case was,

thus, converted to Section 302 I.P.C.    

3. Singh  Rampati  Ram (PW-6),  Sub-inspector,

Kampil police station  started  investigation on September

29, 1990.   He  prepared the sketch map and also took

one  lantern in his possession.  The challan of dead body

was prepared and  photo  of dead body was also taken.

The  autopsy  of  dead  body  was  conducted  by  Dr.

Manohar Singhal, (PW-4).   On September 29, 1990, at

about  4.00P.M.,  A-1 was arrested.    On his  disclosure

statement,  blood stained knife, shirt and bandi are   said

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to have been recovered from his  house.   Then, another

case  under  Section  4/25  of  the  Arms  Act,  1959  was

registered against A-1.    The investigation of the case

under Section 4/25 of the Arms Act  was done by  Sub-

Inspector B.D. Chaudhary (PW-8).  A-2 was also arrested

on October 6, 1990.

4. After  completion  of  investigation,  two

chargesheets came to be  filed.  One was filed against

A-1 and A-2 under Section 302/34 IPC for the murder of

Ganga Singh.     The other chargesheet was filed against

A-1  under  Section  4/25  of  the  Arms  Act.    Both  the

Session Trials  under  Section 302  read  with Section 34

IPC  and  under Section 4/25 of the  Arms Act were taken

up together.

5. The  trial  court   was  of  the  opinion  that

prosecution  failed  to  prove  the  charges   against  the

accused persons beyond  reasonable doubt.    The trial

court   acquitted   the accused  mainly for  the following

reasons:  

(i) The testimony  of PW-1 and PW-2 suffers from significant contradictions.   While PW-1  stated in his evidence that  Mahtab  Singh stabbed Ganga Singh

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

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

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

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

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

(vi)      The  presence  of  PW-2  was  highly unnatural.   He   is  resident  of   Nagala  Kulu.   His statement that he came to Ganga Singh’s  Flour Mill for  grinding   at  night   (9.00  P.M.)  does  not  inspire confidence  as the Flour Mill is situated  in different village.   His  conduct   of  leaving  the  place  of occurrence immediately  after the incident makes  his presence  at  the time  of  incident   highly doubtful. PW-2  neither  accompanied  Ganga  Singh  to  the Primary Health Centre nor accompanied PW-1 to the police station.

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

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

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

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

entirely   different  opinion.  The  High  Court   principally

recorded  the  following  reasons   for  upsetting  the

judgment  of acquittal:

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

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

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

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

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

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7. The  core  question  that  must  be  answered

is : whether  the prosecution story is worth credence and

whether  the prosecution has sufficiently  proved its  case

against the accused beyond reasonable  doubt.  

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

autopsy  of  the  dead  body  on  September  29,  1990  at

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

injury on the dead body of  Ganga  Singh :  

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

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

shock  and  haemorrhage   as  a  result  of  ante-mortem

injury sustained by him.

9. From the autopsy report  and the testimony of

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

Singh was homicidal.   

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10. The incident occurred on September 28, 1990

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

shop  of  Rajveer  to  purchase  bidi.   While  he  was

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

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

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

away  from  the  place  of  occurrence.   But  strangely,

despite  availability,  Rajveer’s   statement  was  neither

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

in   examination  before  the  Court.   According  to

prosecution  case,  a  lantern  was  burning  at  Rajveer’s

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

and  PW-2  could  see  the  culprits.   The  Investigating

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

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

recording the statement  of Rajveer and not  seizing the

lantern  from his shop is  not  innocuous;  rather  the very

genesis of the crime has been rendered doubtful and full

of  suspicion.   The trial  court  considered this  aspect  as

one of the main reasons in not believing the prosecution

case  and  acquitted  the  accused.   However,  the  High

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Court ignored and overlooked this aspect altogether.  In

our  view,  non-examination  of  Rajveer  in  the

circumstances is destructive of  the  substratum of  the

prosecution story.  

11. One of  the main reasons given by the High

Court  in upsetting the judgment of  acquittal  is  that  FIR

was  lodged  barely  45  minutes  after  the  incident;  the

distance of police station being hardly one furlong from

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

consider a very material aspect that despite the fact that

police  station  was situated   close  and visible  from the

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

police station to report but he first went to Charan Singh

to have a written report  prepared and then went to the

police station with written report. The first version of the

incident  could have been reported  at  the police station

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

took  45  minutes  in  reporting  the  incident  at  the  police

station rather creates doubt about the truthfulness of the

prosecution case and does not rule out  false implication

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

some civil dispute between them.

12. The evidence  of  PW-1 about  sufficient  light

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

shop is again highly doubtful.  The Investigating Officer

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

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

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

not been shown in sketch prepared by him.  About the

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

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

surprisingly that lantern was not produced during the trial

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

tell  him  that  it  was  a  moonlit  night.   In  these

circumstances,  the evidence of PW-1 that he witnessed

the  incident  further  becomes doubtful  as  admittedly  he

was sitting under thatched roof about 40-45 paces away

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

PW-1  being   brother  of  the  deceased  could  not  have

been justifiably thrown out as an interested witness but in

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the backdrop of totality of his evidence, in our considered

view,  his  testimony  could  not  have  been  safely  relied

upon and the trial court cannot be said to have committed

any  error  in  this  regard.   The  vital  omissions  in  his

testimony also shake the trustworthiness of this witness.

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

presence at the time of incident is not only doubtful but

also highly unnatural.   He is not the resident of Village

Kampil where the incident occurred; he resides at Village

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

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

grinding.  He was unable to tell how much foodgrain he

had brought for grinding.  The most surprising aspect is

that although he claims to have been present at the time

of incident, he neither went along with Ganga Singh when

he was taken to Kayam Ganj Primary Health Centre after

the incident nor he accompanied PW-1 to police station

for  lodging the report.   He left  the place of  occurrence

within  10  minutes  of  the  incident  for  his  village.   The

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

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injury  by  Mahtab  Singh  to  deceased  Ganga  Singh  is

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

stated that Mahtab Singh stabbed Ganga Singh from the

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

inflicted  knife  injury  to  Ganga  Singh  from  the  front.

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

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

does not conform with collateral circumstances as well as

probabilities.  The circumstances brought on record show

that  reliance  on  their  testimony  is  not  safe.  Their

testimony is shrouded with grave suspicion and serious

doubts.

15. The  trial  court  meticulously  examined  the

entire evidence available on record and then reached the

conclusion that  the prosecution  has failed to  prove the

charges against the accused beyond reasonable doubt.  

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

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

1  (2006) 13 SCC 303

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

17. The  aforesaid  legal  position  has  been

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

it was said:

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

2  (2008) 1 SCC 258

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

Court while dealing with the scope of exercise of power

by appellate  Court  against  judgment  of  acquittal  under

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

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

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

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

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

State  of  Maharashtra10;  Noor  Khan   v.   State  of

Rajasthan11; Khedu Mohton  v.  State of Bihar12; Shivaji

Sahabrao  Bobade   v.   State  of  Maharashtra13;  Lekha

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

Punjab15;  Umedbhai  Jadavbhai   v.   State  of  Gujarat16;

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

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

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

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

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

and culled out the following principles:  

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

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

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

19. We agree.  The aforesaid principles must  be

kept in mind by the appellate court before it ventures to

overturn trial court’s judgment of acquittal.  Unfortunately

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

settled principles in mind and reversed the judgment of

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

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acquittal recorded by the trial court when the view taken

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

High  Court,  thus,  seriously  erred  in  disturbing  the

judgment  of  acquittal  and recording  the  finding  of  guilt

against the accused.

20. We,  accordingly,   allow the  appeal  and  set

aside the judgment dated May 27, 2005 impugned in the

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

bonds are cancelled.   Jaipal  is  directed to be released

forthwith unless required in any other case.

……………………………………J (S.B. SINHA)

……………………………………J (MUKUNDAKAM SHARMA)

…………………………………….J (R.M. LODHA)

New Delhi April  13, 2009

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