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CASE NO.: Appeal (crl.)  1446-1448 of 2003

PETITIONER: Main Pal and Anr.

RESPONDENT: State of Haryana and Ors.

DATE OF JUDGMENT: 05/04/2004

BENCH: DORAISWAMY RAJU & ARIJIT PASAYAT.

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J

       These appeals relate to a common judgment of Punjab  and Haryana High Court and, therefore, are taken up  together for disposal.  The appellants who faced trial  for alleged commission of offences punishable under  Section 302 read with Section 34 of the Indian Penal  Code, 1860 (in short the ’IPC’) and Sections 25 and 27  of the Arms Act, 1959 (in short the ’Arms Act’) were  acquitted by the trial Court. By the impugned judgment,  a Division Bench of the High Court reversed the judgment  of acquittal and found the accused persons guilty of the  charged offences and imposed life sentence for offence  relatable to Section 302 read with Section 34 IPC.   Accused Jas Ram and Main Pal were sentenced to undergo  sentence of one year and six months respectively for  offences under Section 27 and 25 of the Arms Act  respectively.

       Prosecution version in a nutshell is as follows:

       Giarsi, younger sister of Ram Sarup (PW-1) was  earlier married to Hans Raj (hereinafter referred to as  "deceased"), son of Devi Lal (PW-2) about two months  before the date of incident. Deceased was earlier   married to Rukmani of Village Munda (Rajasthan), the  sister of the two accused, namely Jas Ram and Main Pal.   But she had committed suicide some time earlier and on  this account, the relationship between Hans Raj and the  two accused had become strained. On 15.11.1993, Ram  Sarup (PW-1) came to Sirsa from his village Kenia to  purchase some household articles. At about 5 to 5.50  p.m., he was returning to his village on foot when he  met deceased Hans Raj and Devi Lal (PW 2) on the way and  they continued to walk towards village Kenia. A short  while later, they saw a motor cycle coming from the  behind with two persons riding on it.  Deceased Hans Raj  was then walking slightly ahead of Ram Sarup (PW 1) and  Devi Lal (PW 2). The motor cycle stopped near the  deceased and the person who was driving the same i.e.  Main Pal, addressed the person sitting on the pillion  i.e. Jas Ram asking him to avenge the killing of their  sister. Jas Ram immediately got down from the motor  cycle and fired a shot from his country made pistol at  Hans Raj, which hit him on the right side of his chest,

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as a result of which he fell down on the ground. PW-1  Ram Sarup raised an alarm on which accused Jas Ram  called upon the driver of the motorcycle to get away.  Both the accused then drove away on the motor cycle. Ram  Sarup (PW-1) on looking around noticed that Devi Lal had  run away on account of fear and that Hans Raj had died  almost immediately. A short while later, Siri Ram, Ex- Sarpanch (PW-3) and Prabhu Ram, Sarpanch happened to  reach the place of occurrence and Ram Sarup told them  about what had transpired. Ram Sarup thereafter left for  the police station, Sirsa and lodged the FIR (Ex.PA)  at  8.05 p.m. The special report was delivered to the illaqa  magistrate at 9.30 p.m. the same evening. After  recording the FIR, SI Ram Dhan (PW-9) and other police  officials accompanied Ram Sarup to the spot. As it was  dark, much progress in investigation could not be made,  but was continued on the next morning, SI Ram Dhan  inspected the dead body, recorded the inquest report and  picked up blood stained earth, an attache-case and fired  cartridge case from the spot.  Accused Jas Ram  surrendered in Court on 18.11.1993 and was interrogated  by SI Ram Dhan in the presence of Balram (PW-6) and Devi  Dutt. On a disclosure statement made by him, a country  made, 12 bore pistol, (Ex.P-2) and two live cartridges  were recovered. Accused Main Pal  was arrested on  19.11.1993 and was interrogated and on his disclosure  statement a country made, 12 bore pistol (Ex. P-3) and  three live cartridges were recovered. The spent  cartridge cases and the pistols were sent for comparison  to the Forensic Science Laboratory, Madhuban, which  opined vide its report Ex.PN that one of the cartridges  matched the weapon recovered at the instance of  accused   Main Pal.    

       In order to substantiate the accusations,  prosecution examined 9 witnesses. Ram Sarup (PW-1) and  Devi Lal (PW-2) were stated to be the eye-witnesses.  Siri Ram (PW-3), the Ex-Sarpanch was examined to show  that immediately after the occurrence he had reached the  place of occurrence and Ram Sarup had disclosed the  details of the incident to him. Balram (PW-6) and Ranjit  Singh (PW-7) were witnesses to recovery of pistols at  the instance of accused Jas Ram and Main Pal  respectively.   The accused persons pleaded innocence and  took the stand that they have been falsely implicated at  the instance of one Munshi Ram.                                       

The trial Court on consideration of the evidence  came to hold that the prosecution has not been able to  establish any plausible motive. The conduct of Devi Lal  (PW-2), father of the deceased was quite unnatural, and  he appeared to have been introduced to substantiate the  evidence of PW-1 whose presence on the spot was also  doubtful. The conduct of PW-2 was held to be unnatural  as no normal person would go away from the spot after  seeing that his son is being attacked and would not  return for a considerable long time, not caring to see  as to what had happened to his son. Though the FIR was  lodged promptly  the same was discarded on the ground  that a false plea relating to presence of Devi Lal was  introduced. As Ram Sarup (PW-1) had stated about  the  presence of PW-2 his evidence was also discarded on the  ground that it was a manipulated one.  

       Three appeals were filed by the State against the

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acquitted accused persons, while a Criminal revision was  filed by the informant questioning correctness of  judgment passed by the trial Court.  The High Court  noticed that the motive for the crime has been  established. The veracity of the evidence tendered by  PWs 1 and 2 cannot be doubted, more so, in view of the  evidence of Siri Ram (PW-3). The fire arms used in the  occurrence were recovered on the basis of information  given by the accused persons. The manner of appraisal of  evidence as done by the trial Court was not justifiable.  The trial Court did not take note of the evidence  tendered by PW-2,  father  of  the  deceased  about  the  threats given to him by the accused persons which  clearly established the motive. Accordingly, as noted   above, the judgment of the trial Court was set aside.  

       In support of the appeals, Mr. Rajiv Dutta, learned  senior counsel submitted that the High Court has merely  substituted its view in place of that expressed by the  trial Court. That is not permissible to be done  while  considering an appeal against acquittal. The parameters  to be kept while dealing with an appeal against  acquittal has been lost sight of by the High Court.  Merely because the FIR was lodged promptly, as held by  the High Court, it cannot be lost sight of that the  police station was at a distance of 2 K.M. from the  place of occurrence and the time taken was about two  hours which provided ample opportunity for manipulation   and false implication.  

       There was practically no evidence about enmity for  constituting the alleged  motive. The trial Court had  rightly found the conduct of PW-2 to be unnatural and  since PW-1 had falsely stated about his presence, that  was  taken note of by the trial Court which directed  acquittal. The investigation was tainted. Only relatives  of persons who lived at far off places were made  witnesses to the alleged recoveries. The pellets and  wads allegedly recovered  were not sent to the Forensic  Science Laboratory and no fire arms expert was examined.   The identification of the accused persons by Ram Sarup  (PW-1) is incredible. He claimed to have seen the  accused persons about 10 years back and same was  certainly a very long time to wipe out a recognition of  a person. The doctor’s evidence shows that the firing  was done from a higher level. Since both the deceased  and the accused who allegedly fired the gun were almost  of the same height, the version given by PWs 1 and 2 is  clearly negatived by the medical evidence.  

To probabilise the identification the highly  improbable story that the accused persons called each  other by name was introduced, as their names were not  known to PW-1.            In response, learned counsel for the State  submitted that the presence of PWs 1 and 2 has been  established by cogent evidence and the trial Court had  erred in discarding it. As rightly noted by the High  Court, the evidence of Siri Ram (PW-3) was not  considered in its proper perspective. The reason  indicated by the trial Court to completely rule out the  presence of the witnesses has no basis.   Though PW-2  may have, conceding for the sake of arguments, acted in  an unusual manner that really is not determinative

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because different persons react differently even in  similar situations.          On a bare perusal of the trial Court’s judgment one  thing is patently noticeable. The trial Court has merely  referred to the arguments advanced and has then come to  abrupt conclusions without even indicating any plausible  or relevant reasons, therefor.  Merely coming to a  conclusion without any objective analysis relating to  acceptability or otherwise of the rival stands does not  serve any useful purpose in adjudicating a case. The  trial Court was required to analyse the evidence,  consider the submissions and then come to an independent  decision after analysing the evidence, the submissions  and the materials on record.  Since the trial Court had  not pragmatically  analysed the evidence, and had given   abrupt conclusions, that itself made the judgment  vulnerable. Further, several aspects which the trial  Court found to be significance were really arrived at  hypothetically and on surmises.  Merely because the  evidence of PW-2 shows that he acted in an unnatural  manner, that per se would not be a determinative factor  to throw out the otherwise cogent prosecution evidence.  The High Court on the other hand has considered in great  detail the evidence of the witnesses. It has come to a  positive finding that PW-1 was in a position to identify   the accused persons. Some of the pleas now advanced were  also not taken up before the courts below, for example  non examination of the pellets/wads by the Forensic  Science Laboratory.  On considering the evidence of  record, pragmatically one thing is clear that the High  Court after analysing the evidence in great detail, was  justified in treating the trial Court’s judgment to be  practically un-reasoned.           Though PWs 1  and 2 were related to the deceased,  that does not in any manner affect the credibility of  their evidence. When a person is shown to be the  relative of an accused, it is open to the Courts to  critically analyse his evidence with caution and then  come to a conclusion whether the same is credible and  cogent. Though the conduct of PW-2 may appear to some   to be somewhat unusual, as rightly noted by the High  Court, every person cannot act or react in a particular  or very same way and it would depend upon the mental set  up of the person concerned and the extent and nature of  fear generated and consequently on the spot his reaction  in a particular way has to be viewed on the totality of  all such circumstances. The hypothetical discrepancy  regarding the height from which the gun was shot is one  aspect which needs to be noted, only to be  rejected.   If the eye-witnesses’ version, even though of the  relatives, is found to be truthful and credible after  deep scrutiny the opinionative evidence of the doctor  cannot wipe out the effect of eye-witnesses’ evidence.  The opinion of the doctor cannot have any binding force  and cannot be said to be the last word on what he  deposes or meant for implicit acceptance.  On the other  hand, his evidence is liable to be sifted, analysed and  tested, in the same manner as that of any other witness,  keeping in view only the fact that he has, some  experience and training in the nature of the functions  discharged by him.

 There is no embargo on the appellate Court

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reviewing the evidence upon which an order of acquittal  is based.  As a matter of fact, in an appeal against  acquittal, the High Court as the court of first appeal  is obligated to go into greater detail of the evidence  to see whether any miscarriage has resulted from the  order of acquittal, though has to act with great  circumspection and utmost care before ordering the  reversal of an acquittal.  Generally, the order of  acquittal shall not be interfered with because the  presumption of innocence of the accused is further  strengthened by acquittal. The golden thread which runs  through the web of administration of justice in criminal  cases is that if two views are possible on the evidence  adduced in the case, one pointing to the guilt of the  accused and the other to his innocence, the view which  is favourable to the accused should be adopted. The  paramount consideration of the Court is to ensure that  miscarriage of justice is prevented. A miscarriage of  justice which may arise from acquittal of the guilty is  no less than from the conviction of an innocent. In a  case where admissible evidence is ignored, a duty is  cast upon the appellate Court to re-appreciate the  evidence where the accused has been acquitted, for the  purpose of ascertaining as to whether any of the accused  really committed any offence or not. [See Bhagwan Singh  and Ors. v. State of Madhya Pradesh (2002 (2) Supreme  567). The principle to be followed by appellate Court  considering the appeal against the judgment of acquittal  is to interfere only when there are compelling and  substantial reasons for doing so.  If the impugned  judgment is clearly unreasonable and relevant and  convincing materials have been unjustifiably eliminated  in the process, it is a compelling reason for  interference. This position has been recently re- iterated in Joseph v. State of Kerala ( 2003 (1) SCC  465),  Devatha Venkataswamy @ Rangaiah v.Public  Prosecutor, High Court of A.P. (2003 (10) SCC 700 ,  State of Punjab v. Phola Singh and another (2003 (11)  SCC 58), State of Punjab v. Karnail Singh ( 2003 (11)  SCC 271) , State of U.P. v. Babu and others  ( 2003 (11)  SCC 280)  and Suchand Pal v. Phani Pal and Anr. ( 2003  (11) SCC 527).

       Since the judgment of the trial Court was  practically unreasoned without any attempt to critically  and objectively analyse the evidence, the High Court was  justified in undertaking a re-appreciation of the  evidence  and the High Court in the case on hand has  taken into account all the relevant aspects of the case  to hold the accused persons guilty, we consequently find  no scope for interference at the instance of the  appellants in these appeals. The appeals are accordingly  dismissed.