REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOs. 891-892 OF 2002  

Raj Narain Singh                    …. Appellant

Versus

State of U. P. & Ors.               …. Respondents

With

Criminal Appeal Nos.   1811-1812     of  2009 (Arising out of S.L.P (Crl.) Nos. 3595-3596 of 2002)

JUDGMENT

Dr. Mukundakam Sharma, J.

1. Leave Granted.

2. The  present  Criminal  Appeals  have  been  preferred  against  the  

judgment and order passed by the Allahabad High Court whereby it reversed  

the  judgment  and  order  of  conviction  passed  by  the  trial  Court  under  

Sections 302, 307, 323, 342 read with 34 of the Indian Penal Code (in short  

“the IPC”) and Sections 27 and 30 of the Arms Act.

3. The  facts  leading  to  the  filing  of  the  present  appeals,  as  per  the  

prosecution, in brief are that on 23.05.1994, i.e., a day prior to the date of the  

occurrence, Sunil Singh alias Guddoo (PW-2), a resident of village Vasnari,  

Police  Station,  Kerakat,  District  Jaunpur  came  to  visit  the  house  of  Raj  

Narain  Singh  (PW-1),  complainant/appellant  herein  who  is  a  resident  of  

village Pravaspur, Police Station, Mariyahun, District Jaunpur for the ‘Bidai’  

of his sister in connection with a marriage in PW-2’s family. On the fateful  

day, i.e.,  24.05.1994 at around 8.30 a.m., PW-2 went to the petrol  pump  

known as the Dharamraj Service Station, Pali owned by the accused persons  

for procuring petrol for his scooter. At the petrol pump, an altercation arose  

between PW-2 and Prabhakar Pandey (Accused No.3), and the same ended  

up in a fight between them. Shortly after PW-2 had left the house of PW-1,  

PW-1  alongwith  one  Adya  Prasad  also  left  the  house  for  going  to  the  

examination  centre  where  they  were  to  evaluate  the  board  examination  

answer books.   On   their way to the said examination centre, PW-1 and  

said  Adya  Prasad  saw that  PW-2  was  being  dragged  and  beaten  by  the  

accused persons. On seeing this, PW-1 and Adya Prasad tried to intervene.  

At this, Accused No. 3 exhorted Pushkar Pandey (Accused No. 2) to shoot  

the  interveners,  whereupon,  Accused No.  2  fired a  shot  from his  double  

barrel gun which compelled PW-1 and his companion to retreat to safety.  

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The gunshot and the resulting commotion attracted the attention of Rajesh  

and Brijesh, both sons of PW-1, who then emerged from the village pathway  

on their motorcycle and reached the spot. Karunakar Pandey (Accused No.  

1)  and  Accused  No.  3  exhorted  Accused  No.  2  to  kill  both  Rajesh  and  

Brijesh. Shots fired by Accused No. 2 hit Rajesh and Brijesh, as a result of  

which,  both  fell  down from their  motorcycle  and  died  on  the  spot.  The  

aforesaid  incident  was  witnessed  by  Ramjee  Maurya  (PW-3),  Virendra  

Singh, Bhola Nath Singh and several other persons. PW-2 was taken captive  

by  the  accused  persons  inside  the  said  service  station  showroom.  

Immediately  thereafter,  PW-1 went  to the  Police Station,  Mariyahun and  

lodged a written report at about 9.10 a.m. on the same day.  On the basis of  

the aforesaid written report, the First Information Report (in short “the FIR”)  

was registered by the Head Constable Jeet  Bahadur Singh (PW-8) and a  

Crime Case No. 178/1994 was registered in the presence of SSI Narendra  

Pratap  Singh  (PW-11)  under  Sections  323,  342,  307,  302  of  the  IPC.  

Thereafter,  PW-11 proceeded to the spot of occurrence.  On reaching the  

spot of occurrence, PW-11 noticed PW 2 being kept captive by the accused  

Nos. 1 and 2 inside the showroom.   Thereupon, he proceeded towards the  

showroom and on seeing him the two accused tried to flee away from the  

place of occurrence.   They were, however, apprehended and on searching  

them, PW-11 recovered a pistol and a gun from their possession. Accused  

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No.3 was found to be absconding from the spot of occurrence. PW-2 was  

then  freed  from  the  custody  and  sent  to  the  police  station  along  with  

Constable  Sunil  Kumar Singh for  the  purpose  of  medical  treatment.  The  

statement of PW-1 was recorded on the spot and that of PW-2 was recorded  

after he returned back after undergoing medical examination. Subsequently,  

with the help of PW-1 and PW-2, a site plan was prepared and four empty  

cartridges of 12 bore were seized by the police. Dr. M. L. Srivastava (PW-

4),  who  had  examined  PW-2  on  24.05.1994  at  1.50  p.m.  in  his  report,  

mentioned about four injuries on the person of PW-2. Dr. C.K. Gupta (PW-

7)  had  conducted  the  post-mortem  of  the  dead  bodies  of  the  deceased  

persons and in his two reports opined that the gunshots had injured the vital  

part  of  the  body  and  that  death  had  been  caused  due  to  shock  and  

hemorrhage.  On the  completion  of  the  investigation,  a  charge  sheet  was  

submitted.   On the basis  of  the  same, the charges were explained to the  

accused who pleaded not guilty and claimed to be tried.   

4. The  prosecution,  in  order  to  establish  the  guilt  of  the  accused,  

examined several witnesses and exhibited documents. After examining the  

witnesses  from both  sides  and upon hearing  arguments  advanced  by  the  

parties, the trial Court by its judgment dated 01.02.1996 convicted all the  

three  accused.  Accused  No.  2  was  convicted  and  sentenced  to  life  

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imprisonment under Section 302 IPC, ten years RI under Section 307 IPC,  

six months RI under Section 323 read with 34 IPC, six months RI under  

Section 342 read with 34 IPC; and 3 years RI under Section 27 of the Arms  

Act.  The trial Court also imposed a fine of Rs. 3000 and 1000 under Section  

307 IPC and 27 of the Arms Act respectively. Accused No. 1 was convicted  

and sentenced to life imprisonment under Section 302 read with 34 IPC, six  

months RI under Section 323 read with 34 IPC, six months RI under section  

342 read with 34 IPC. Accused No. 3 was convicted and sentenced to life  

imprisonment under Section 302 read with 34 IPC, seven years RI under  

Section 307 IPC, six months RI under Section 323 read with 34 IPC, six  

months RI under Section 342 read with 34 IPC; and six months RI under  

Section 30 of the Arms Act. The trial Court also imposed a fine of Rs. 3000  

under Section 307 IPC. All the accused persons were also directed to pay a  

sum of Rs. 1, 50,000/- in total as compensation under section 357 (3) of the  

Code of Criminal Procedure (in short “the CrPC’) to PW-1.  

5. Aggrieved by the aforesaid decision of the trial  Court,  the accused  

preferred two separate appeals in the Allahabad High Court. Accused No. 2  

preferred  Criminal  Appeal  No.  234  of  1996  and  Accused  No.  1  and  3  

preferred  Criminal  Appeal  No.  235  of  1996.  The  High  Court  by  its  

impugned judgment dated 27.02.2002 allowed the aforesaid appeals and set  

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aside the decision of the trial Court thereby acquitting all the accused from  

the aforesaid charges.

6. Dissatisfied with and aggrieved by the decision of the High Court,  

four Special Leave Petitions (two by the Complainant/PW-1 and another two  

by the State of U. P.) were preferred.  Leave was granted by this Court in the  

Special Leave Petitions filed by the Complainant/PW-1 on 29.08.2002.

7. Learned  counsel  appearing  for  the  complainant  as  also  the  State  

forcefully argued before us that the decision of the High Court erroneously  

acquitting the accused persons suffers from serious infirmity inasmuch as  

the three eye-witnesses (PW-1, PW-2 and PW-3) were consistent in their  

statements and proved the prosecution case to the hilt as stated in the FIR  

and that no contradiction could be proved of the facts stated in the FIR and  

the  statement  of  witnesses.  It  was  further  submitted  that  the  High Court  

failed to appreciate the fact that a father would not unnecessarily implicate  

an innocent person at the cost of sparing the real culprits responsible for the  

murder of his two grown up sons. It was further contended that the High  

Court ignored the vital fact that Accused No. 1 and 2 were arrested from the  

spot and arms were recovered from their possession immediately and that  

Accused No. 3 succeeded in absconding. It was further submitted that the  

High Court wrongly discarded the evidence of PW-3 on the ground that he  

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could  have  got  his  cattle  grazed  elsewhere  and  that  his  statement  was  

recorded  two  days  later  from  the  date  of  occurrence.  It  was  further  

contended that the High Court erroneously came to the conclusion that the  

prosecution  failed to  attribute  to  the  accused persons  any motive  for  the  

commission of the said offence. It was further submitted that the High Court  

failed  to  take  into  consideration  the  fact  that  the  delay  in  medical  

examination of PW-2 was adequately explained by the prosecution and that  

could  not  have  been  made  a  ground  for  disbelieving  the  case  of  the  

prosecution.   

8. On the other hand, learned counsel appearing on behalf of the accused  

persons strongly opposed the aforesaid contentions and submitted that the  

High Court has rightly set aside the decision of the trial Court as there are  

several serious infirmities in the evidence of the prosecution witnesses and  

in the manner of recovery of seized weapons and cartridges. It was further  

submitted that if the order of acquittal is one of the possible view, the same  

deserves deference rather than interference by the appellate court. In support  

of the same, reliance has been placed on the decision of this Court in Rang  

Bahadur Singh v. State of U. P., (2000) 3 SCC 454; Ghurey Lal v. State  

of U. P., (2008) 10 SCC 450.

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9. In view of the aforesaid submissions advanced by the parties, we will  

now proceed to address the submissions in light of the evidence available on  

record.  

10. The  scope  of  appeals  under  Article  136  of  the  Constitution  is  

undisputedly very much limited. This Court does not exercise its overriding  

powers  under  Article  136  to  reweigh  the  evidence.  The  court  does  not  

disturb the  concurrent  finding of  facts  reached upon proper  appreciation.  

Even if two views are reasonably possible, one indicating conviction and  

other acquittal, this Court will not interfere with the order of acquittal. But  

this Court will not hesitate to interfere if the acquittal is perverse in the sense  

that  no reasonable  person would have come to that  conclusion,  or  if  the  

acquittal  is  manifestly  illegal  or  grossly  unjust.  Recently,  in  the  case  of  

Chandrappa v. State of Karnataka,(2007) 4 SCC 415, at page 432 this  

Court (per Thakker J.) after elaborately discussing the previous decisions on  

this point has aptly summarized the law as follows:

“42. From the above decisions, in our considered view,  the  following  general  principles  regarding  powers  of  the appellate court while dealing with an appeal against  an order of acquittal emerge: (1)  An  appellate  court  has  full  power  to  review,  reappreciate  and reconsider  the  evidence  upon which  the order of acquittal is founded. (2)  The  Code  of  Criminal  Procedure,  1973  puts  no  limitation, restriction or condition on exercise of such  power and an appellate court on the evidence before it  

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may reach its own conclusion, both on questions of fact  and of law. (3)  Various  expressions,  such  as,  “substantial  and  compelling  reasons”,  “good  and  sufficient  grounds”,  “very  strong  circumstances”,  “distorted  conclusions”,  “glaring  mistakes”,  etc.  are  not  intended  to  curtail  extensive  powers  of  an  appellate  court  in  an  appeal  against  acquittal.  Such phraseologies  are  more  in  the  nature  of  “flourishes  of  language”  to  emphasise  the  reluctance  of  an  appellate  court  to  interfere  with  acquittal than to curtail the power of the court to review  the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that  in  case  of  acquittal,  there  is  double  presumption  in  favour  of  the  accused.  Firstly,  the  presumption  of  innocence  is  available  to  him under  the  fundamental  principle  of  criminal  jurisprudence  that  every  person  shall  be presumed to be innocent unless he is proved  guilty  by  a  competent  court  of  law.  Secondly,  the  accused having secured his acquittal,  the presumption  of his innocence is  further  reinforced,  reaffirmed and  strengthened by the trial court. (5)  If  two reasonable conclusions are possible on the  basis  of  the  evidence  on  record,  the  appellate  court  should not disturb the finding of acquittal recorded by  the trial court.”

11. The same view has been reiterated by this Court in  Ghurey Lal v.  State of U.P., (2008) 10 SCC 450, at page 476, in which one of us (Hon’ble  Justice Dalveer Bhandari) after discussing a number of authorities on this  

issue summarized the law as follows:  

“69. The following principles emerge from the cases above: 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.

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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.”

12. There is  no dispute  with regard to the place of  commission of the  

crime. It was committed at the Dharamraj Service Station. If we critically  

examine the evidence of PW 1, there is nothing to doubt the correctness of  

the version given by him. PW-1, complainant in the present case has proved  

the FIR (Ext. Ka-5) lodged by him. He has stated the contents of Ext. Ka-5  

verbatim  in  his  statement  and  in  cross  examination  also  there  is  no  

contradiction between the facts stated in the FIR and his evidence in the trial  

Court which has been corroborated by the evidence of PW-2 and PW-3. PW-

3 in  his  deposition  before  the  trial  court  has  categorically  stated  that  he  

reached at ‘bhita’ in the morning at about 8 a.m. for grazing his cattle and  

after sometime while he was still there, he saw that the Accused No. 3 was  

having  an  altercation  with  PW-2.  All  the  accused  persons  then  started  

beating PW-2. PW-3 further stated that at  that time PW-1 and one Adya  

Singh came there and tried to intervene but Accused No. 2 fired a shot at  

PW-1 from his double barrel gun which, however, did not hit PW-1. Upon  

this,  sons of PW-1 namely, Rajesh and Brijesh, reached the spot on their  

motorcycle and they were also fired upon by Accused No. 2. The gunshots  

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struck both the deceased persons who fell down from their motorcycle and  

died on the spot.   

13. Thus,  it  is  quite  clear  that  PW-1,  PW-2 and PW-3 who were eye-

witnesses to the occurrence have fully proved the incident and corroborated  

the statements  mentioned in the FIR and there is  no inconsistency in the  

statements of all the three witnesses.  There is no material contradiction in  

the cross examination and the entire facts of the FIR which has been fully  

supported by the statements of all the three aforesaid witnesses.    

14. Another submission of the counsel appearing on behalf of the accused  

is  that  PW-3,  being  an  employee  of  PW-1,  could  not  be  said  to  be  an  

independent witness and therefore his testimony could not be relied upon.  

We cannot accept this contention as it neither finds any support from the  

prosecution  evidence  nor  has  been  proved  by  any  defence  witnesses.  

Counsel for the Respondent relied upon the statement of PW-3 wherein he  

stated PW-1 as master for submitting that PW-3 is a servant of PW-1.   But a  

careful perusal of his statement would indicate that PW-3 called PW-1 as  

master  as PW-1 was a teacher and therefore he was described as master.  

From the said evidence, it therefore, cannot be deduced that PW-3 was a  

servant of PW-1.

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15. From the perusal of the post mortem report and the statement of the  

doctor it  is clearly evident that the injuries on the deceased persons were  

found to be on the chest which is a vital part of the body and the death was  

natural as the bullet had hit them.  According to the statement of PW-7, the  

cause of death was the gun shot ante-mortem injury on the vital part of the  

body and from excessive bleeding and shock. According to the statement of  

PW-7 at the time of firing of the gun its barrel must have been at a distance  

of 3 to 6 feet  from the dead bodies.   As a result  of which the deceased  

Brijesh and Rajesh had suffered injuries from the gun shots fired within 6  

feet from the place where they were hit by the bullet and the same caused  

their instant death.

16. It is the case of the accused that the shot was fired by the defence in  

their right of private defence.   In the written statement of Accused No. 2  

recorded under Section 313, Cr.PC, this fact has been accepted that there  

was quarrel regarding petrol.   Both deceased Brijesh and Rajesh came to the  

petrol pump on motor cycle. Shots were fired indiscriminately by Accused  

No. 2 from the licensed gun of Accused No. 3.   The shots hit Rajesh and  

Brijesh. They have also accepted the recovery of licensed gun of A3 from  

the petrol pump.    

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17. The defence towards the end of the trial tried to put up a version that  

the  two  deceased  came  there  to  the  petrol  pump to  commit  robbery  by  

hurling bomb and in the process also caused damage to the petrol pump.  

Unfortunately, however, no proof in support of the said contention could be  

produced  by  the  defence.  There  is  nothing  on  record  which  can  even  

remotely suggest that the act of the accused persons was in exercise of their  

right of private defence. The investigation, at the place of occurrence, soon  

after the incident did not reveal any remains of bomb or recovery of any  

firearm from the hands of the deceased or any damage to the petrol-pump.  

No injury was also found on the bodies of the accused.  It is pertinent to  

mention here that no suggestion regarding recovery of any bomb materials  

or detection of any signs of damage to the petrol  pump by the deceased  

persons and PW-2, was put by the defence to either PW-10 or PW-11, both  

of  whom were  present  at  the  place  of  occurrence  at  the  time  when  the  

showroom of the accused persons was searched and weapons, cartridges and  

other articles were seized. Thus, the submission of the defence with regard  

to the alleged exercise of right of private defence by the accused persons  

being without any basis, the same also fails.  

18. As far as the allegation of delay in lodging of FIR is concerned, it was  

been stated on behalf of the prosecution that the incident had taken place at  

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8.30 a.m. and as per the FIR the police station Mariyahun is about 7 km  

from the place of occurrence. It is the case of the defence that as the report  

was lodged at the police station at 9.10 a.m., the same being very prompt,  

therefore,  there  is  bungling  regarding  report  and  time  of  FIR.  It  was  

contended that the deceased Brijesh and Rajesh were the sons of PW-1and  

they died on the spot and in such a situation, the natural conduct of father  

loosing two sons would be to stay with the sons and weeping instead of  

going to the police station immediately to lodge an FIR.   However, we are  

unable to accept such contention, as it is devoid of any merit. In the present  

case it is quite clear from the evidence of the witnesses that first of all, PW-2  

who was relative of  the PW-1 came to the petrol  pump i.e.  the place of  

occurrence. The altercation arose between PW-2 and Accused No. 3. All the  

three accused then started beating PW-2. PW-2 was then dragged and looked  

inside the show room. When PW-1 came to prevent the accused from doing  

this, the Accused No. 2 fired shot at him but by chance the shot did not hit  

him.  At  that  time,  the  deceased  Rajesh  and  Brijesh  emerged  there  on  

motorcycle. On the exhortation by the accused persons, Accused No. 3 fired  

shots aiming at them, due to which Brijesh and Rajesh fell down and died on  

the spot.    It  is  also proved from the evidence that PW-1 along with his  

companion Adya  Prasad  Singh again  came forward  to  his  sons  then  the  

accused Pushkar again fired a shot. In the aforesaid circumstances, it is quite  

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clear that PW-1 could not reach upto his sons after they fell down due to  

firing. It is also clear from the record that the two accused had locked PW-2,  

a relative of  PW-1 in their  custody and at  that  time Accused No. 2 was  

having a gun.   In the aforesaid circumstances, when PW-1’s both son fell  

down, his relative (PW-2) was in the custody of the accused persons, PW-1  

had indeed no other option except to approach the police station. That was  

also  necessary  since  there  was  also  danger  to  the  life  of  PW-2.  In  the  

aforesaid circumstances, we find no reason to doubt the prompt registration  

of the FIR.  

19. Another submission which was made on behalf of the accused was  

that  PW-1  to  PW-3  are  interested  witnesses  and  there  are  some  

contradictions in their statements.   It  has been contended that PW-1 and  

PW-2 are  related  to  each  other  and also  with  the  two deceased  as  both  

deceased were the sons of PW-1. However, PW-3 cannot be said to be in  

any way interested with PW-1 or PW-2 nor he had enmity with the accused  

persons.  A perusal of the evidence of PW-3 unmistakably makes it  quite  

clear that on the fateful day, he proceeded at 6 O’clock from his house for  

grazing cattle  and had reached at  8 O’clock,  at  ‘bhita’  in front  of  petrol  

pump towards east of the road along with his cattle.   The incident took place  

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in the month of May and as the cattle were grazing, his presence at the place  

at 8 a.m. cannot be doubted.

20. The learned counsel appearing for the accused has strenuously argued  

and drawn our attention to the fact that the prosecution has not examined the  

other witnesses available on the spot. However, we are unable to accept the  

said contention as it is not necessary that all those persons who were present  

at the spot must be examined by the prosecution in order to prove the guilt  

of the accused. Section 134 of the Evidence Act provides that no particular  

number of witnesses is required for proof of any fact. It is trite law that it is  

not  the  number  of  witnesses  but  it  is  the  quality  of  evidence  which  is  

required to be taken note of by the courts for ascertaining the truth of the  

allegations  made against  the accused.  In the  Takhaji  Hiraji  v.  Thakore  

Kubersing  Chamansing,(2001)  6  SCC  145,  at  page  155,  this  Court  

observed as follows :  

“19. So is the case with the criticism levelled by the  High  Court  on  the  prosecution  case  finding  fault  therewith  for  non-examination  of  independent  witnesses.  It  is  true  that  if  a  material  witness,  who  would unfold the genesis of the incident or an essential  part of the prosecution case, not convincingly brought  to fore otherwise, or where there is a gap or infirmity in  the prosecution case which could have been supplied or  made  good  by  examining  a  witness  who  though  available is not examined, the prosecution case can be  termed as suffering from a deficiency and withholding  of  such a  material  witness  would oblige  the  court  to  draw an adverse inference against  the prosecution by  holding that if the witness would have been examined it  

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would not have supported the prosecution case. On the  other  hand  if  already  overwhelming  evidence  is  available  and  examination  of  other  witnesses  would  only  be  a  repetition  or  duplication  of  the  evidence  already  adduced,  non-examination  of  such  other  witnesses may not be material. In such a case the court  ought to scrutinise the worth of the evidence adduced.  The court of facts must ask itself — whether in the facts  and  circumstances  of  the  case,  it  was  necessary  to  examine  such other  witness,  and if  so,  whether  such  witness was available to be examined and yet was being  withheld from the court. If the answer be positive then  only a question of drawing an adverse inference may  arise. If the witnesses already examined are reliable and  the  testimony  coming  from  their  mouth  is  unimpeachable  the  court  can  safely  act  upon  it,  uninfluenced by the factum of non-examination of other  witnesses. In the present case we find that there are at  least  5  witnesses  whose presence  at  the  place  of  the  incident and whose having seen the incident cannot be  doubted at all. It is not even suggested by the defence  that they were not present at the place of the incident  and did not participate  therein.  The injuries sustained  by these witnesses are not just minor and certainly not  self-inflicted.  None  of  the  witnesses  had  a  previous  enmity  with  any of  the  accused  persons  and there  is  apparently  no  reason  why  they  would  tell  a  lie.  The  genesis  of  the  incident  is  brought  out  by  these  witnesses. In fact, the presence of the prosecution party  and the accused persons in the chowk of the village is  not disputed. How the vanity of the Thakores was hurt  leading  to  a  heated  verbal  exchange  is  also  not  in  dispute. Then followed the assault. If the place of the  incident was the chowk then it was a sudden and not  premeditated  fight  between  the  two  parties.  If  the  accused  persons  had  reached  their  houses  and  the  members  of the prosecution party had followed them  and opened the assault  near the house of the accused  persons then it could probably be held to be a case of  self-defence of the accused persons in which case non- explanation  of  the  injuries  sustained  by  the  accused  persons would have assumed significance. The learned  Sessions  Judge  has  on  appreciation  of  oral  and  circumstantial  evidence  inferred  that  the  place  of  the  incident was the chowk and not a place near the houses  of the accused persons. Nothing more could have been  

revealed  by  other  village  people  or  the  party  of  tightrope dance performers. The evidence available on  

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record shows and that appears to be very natural, that as  soon  as  the  melee  ensued  all  the  village  people  and  tightrope  dance  performers  took  to  their  heels.  They  could  not  have  seen  the  entire  incident.  The  learned  Sessions Judge has minutely scrutinised the statements  of all the eyewitnesses and found them consistent and  reliable. The High Court made no effort at scrutinising  and analysing the ocular testimony so as to doubt, if at  all, the correctness of the several findings arrived at by  the Sessions Court. With the assistance of the learned  counsel  for  the  parties  we  have  gone  through  the  evidence adduced and on our independent appreciation  we find the eyewitnesses consistent and reliable in their  narration  of  the  incident.  In  our  opinion  non- examination  of  other  witnesses  does  not  cast  any  infirmity in the prosecution case.”

                                                (emphasis underlined)

21. Further, we cannot lose sight of the fact that ghastly acts, of the nature  

and gravity as the present one, when committed in a public place may very  

well create a sense of fear and shock in the minds of the witnesses and thus  

prevent them from coming forward and deposing against the perpetrators of  

the crime. If the testimonies of those witnesses, who have deposed during  

the trial, are otherwise found to be reliable, trustworthy and cogent, the said  

evidence cannot be disbelieved or discarded merely because the prosecution  

has failed to examine other witnesses allegedly present on the spot.

22. Another submission which has been advanced by the learned counsel  

for the accused is that the story of Accused No. 1 and Accused No. 2 locking  

the  PW-2  in  the  showroom  is  completely  unbelievable.   As  discussed  

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hereinbefore,  on  altercation  having  taken  place  for  petrol,  PW-2  was  

assaulted by the accused persons and forcibly taken to the showroom and  

locked in there immediately thereafter. On being asked by PW-1 not to do  

the same, the gun shot was fired at him but he retreated to safety. Thereafter,  

when both deceased, Rajesh and Brijesh, the two sons of PW-1 reached the  

spot, two consecutive shots were fired at them which resulted in their death  

and thereafter again gun shot was fired towards PW-1. This fact  is  quite  

clear  not  only  from  the  evidence  of  PW-1  but  has  also  been  fully  

corroborated by the evidence of PW-2 and PW-3. It is quite evident from the  

record that a big crowd gathered at the spot.  Under the said circumstances,  

it was quite natural for the accused persons to keep PW-2 in their custody.  

Making  PW-2  captive,  a  fact  to  which  PW-11,  the  SSI  who  was  

investigating the case was also a witness,  could well  protect  the accused  

persons from the crowd which had come to the place of occurrence after  

hearing the gunshots.  Making PW-2 captive could also protect  the petrol  

tank  from being  damaged by  the  pressure  of  the  agitated  crowd.    The  

injuries were found on the body of PW-2 by the doctor who had examined  

him soon after the incident at 1.50 pm on the same day.  

23. The name of  Surendra  Kumar servant  has  been disclosed after  his  

death, for the first time in the statement under Section 313 CrPC and prior to  

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that the name of Surendra Kumar was never even referred to at any place.  

The fact that Surendra Kumar was a servant at the petrol-pump at the time of  

incident has not been proved by any oral or documentary evidence by the  

defence.    

24. In view of the aforesaid discussion,  facts  and circumstances of  the  

case,  we are of the considered view that  the High Court clearly erred in  

reversing the order of conviction recorded by the trial Court. Accordingly,  

we  set  aside  the  judgment  and  order  of  the  High  Court  and  restore  the  

judgment and decision of the trial Court.  

25. The appeals are hereby allowed. The bail bonds of the Accused No. 1,  

Accused No. 2 and Accused No. 3 stand cancelled and they are directed to  

surrender before the jail authorities within 15 days from today, failing which  

the authorities are directed to proceed in accordance with law.

26. The appeals are hereby allowed in terms of aforesaid order.

………………………..J.                      [Dalveer Bhandari]

  ...………………………J.         [Dr. Mukundakam Sharma]

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New Delhi, September 18, 2009  

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