REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.  915  OF 2003

State of Haryana …Appellant

Versus

Krishan …Respondent

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a learned Single Judge

of the Punjab and Haryana High Court holding that the respondent deserves

to be acquitted and the judgment of conviction and sentence as recorded by

learned Additional Sessions Judge, Bhiwani is not correct.  It is to be noted

that  learned  Sessions  Judge  had  found  the  respondent  guilty  of  offence

punishable under Section 304 of the Indian Penal Code, 1860 (in short the

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‘IPC’) and was sentenced him to rigorous imprisonment for 10 years and

fine  with  default  stipulation.   However  the  two  co-accused  persons  Jai

Bhagwan and Anant Ram were acquitted.

2. Background facts as projected by the prosecution are as follows:

On 22.3.1989, it  was PHAG festival.  PW-4 Sher Singh,  brother  of

Nafe Singh (PW-3) had gone to  the  Bazar  for  playing PHAG. However,

Nafe Singh (PW-3) and his father Chandgi Ram (hereinafter referred to as

the ‘deceased’) remained at the house.

Naresh Kumar, nephew of Nafe Singh, visited them at about 3 pm and

informed that  Sher Singh (PW 4) had been beaten by carpenters  of their

village.   On receipt  of  this  information,  PW-3 Nafe Singh alongwith  his

father Chandgi Ram went towards the houses of carpenters. His father was

ahead of him, while he was following him. When they reached near the shop

of Jai Singh, then he started talking with Jai Singh while Chandgi Ram went

ahead. Chandgi enquired from the carpenters about the whereabouts of Sher

Singh,  PW-4,  upon  which  carpenters  lost  temper.  Anant  Ram  and  Jai

Bhagwan, accused (now acquitted) caught hold of Chandgi Ram from his

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arms  while  Krishan,  appellant,  inflicted  a  Lathi  blow,  on  the  head  of

Chandgi Ram. On. receipt of the Lathi blow, he fell down and the appellant

alongwith  co-accused  ran  away.  The  occurrence  was  witnessed  by  Nafe

Singh and Jai Singh.

In the meantime, Harish also appeared. Chandgi was put into a tempo

and  was  taken  to  civil  hospital,  Dadri,  where  he  was  admitted  and  was

medico-legally  examined.  The  police  reached   the  hospital.  Nafe  Singh

made statement, Ex.PL, to Inder Singh Saini, Sub Inspector (PW-5) which

was signed after admitting the same to be correct.  Inder Singh Saini (PW-5)

made endorsement Ex.PL/1 and sent it to the police station for registration

of the case,  on the basis  of which formal FIR, Ex.PL/2 was recorded by

Dalip Singh, Sub Inspector.

Inder Singh Saini SI (PW-5), then went to the place of occurrence but

none was found there and he stayed in the village. On the next day i.e. on

23.3.1989, he called Chowkidar and Jai Singh also came there and on the

pointing out of Jai Singh, he took blood stained earth from the spot after

making it into a sealed parcel vide memo Ex.PM attested by the witnesses.

He also recorded the statement of Sher Singh (PW-4) who had come there

and sent him for his medico-legal examination to Civil Hospital Dadri.

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At  about  8  a.m.,  he  received  Ruqa  through  constable  Ram  Pal,

informing  him  about  the  death  of  Chandgi  and  then  he  converted  the

offence  into  302  IPC.  He  went  to  Civil  Hospital,  Dadri,  and  prepared

inquest report, Ex.PG, and got conducted postmortem on the dead body of

Chandgi. Head constable Parkash Chand handed over one packet to him,

which  he  took  into  possession  vide  Memo  Ex.PM.  He  recorded  the

statements  of  the  witnesses.   He apprehended the appellant  and his  two

companions on 27.3.1989.  He interrogated the appellant and in pursuance

of  his  disclosure  statement,  Ex.PQ,  recovered  Lathi,  Ex.P3,  which  was

made into a sealed parcel and was taken into possession.  Before taking into

possession, he prepared rough sketch of the Lathi, Ex.PS and also a site

plan of the place of recovery, Ex. PT.

As  the  accused  persons  pleaded  innocence,  trial  was  held.

Prosecution examined six witnesses.  One Jai Singh was given up as he was

supposed to won over.  The trial court placed reliance on the evidence of

PW 3 and directed conviction as recorded above.

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In appeal the High Court found that there were several factors which

made  the  prosecution  version  unreliable.  It  was  noted  that  the  First

Information Report was purportedly lodged on 22.3.1989 but the same was

received by the Illaqa magistrate after a long time i.e. on 24.3.1989 though

the court of the Illaqa magistrate was situated at less than half a kilometer.

Additionally the number of injuries as stated by the so called eye witness,

PW3 was at great variance with the medical evidence.  It also noted that the

medical examination conducted at 3.30 P.M. by Dr. M.M. Sharma, PW 1

showed that the injuries were caused within a duration of 6 to 12 hours.  His

specific evidence was that the deceased could have received the injuries at

about  10  AM on 22.3.1989  and  he  had  not  received  injuries  within  six

hours.  According to the prosecution version the occurrence took place at

3.30 PM and the medico legal examination was done at 5.30 pm.

3. Learned  counsel  for  the  appellant  State  submitted  that  the  factors

highlighted by the High Court to direct acquittal have no foundation.

4. Learned counsel for the respondent on the other hand supported the

judgment of the High Court.       

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5. There is no embargo on the appellate court reviewing the evidence

upon which an order of acquittal is based. 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 v.  State  of  M.P,  2003  (3)  SCC  21).  The

principle  to  be  followed  by  the  appellate  court  considering  the  appeal

against  the  judgment  of  acquittal  is  to  interfere  only  when  there  are

substantial  reasons  for  doing  so.  If  the  impugned  judgment  is  clearly

unreasonable  and  irrelevant  and  convincing  materials  have  been

unjustifiably  eliminated  in  the  process,  it  is  a  substantial  reason  for

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interference.  These  aspects  were  highlighted  by  this  Court  in  Shivaji

Sahabrao  Bobade v.  State  of  Maharashtra (1973  (2)  SCC 793),  Ramesh

Babulal  Doshi  v.  State of Gujarat (1996 (9) SCC 225),  Jaswant Singh v.

State of Haryana (2000 (4) SCC 484),  Raj Kishore Jha v.  State of Bihar

(2003 (11)  SCC 519),  State of Punjab v.  Karnail  Singh (2003 (11)  SCC

271),  State of Punjab v.  Phola Singh (2003 (11) SCC 58),  Suchand Pal v.

Phani Pal (2003 (11) SCC 527) and  Sachchey Lal Tiwari v.  State of U.P.

(2004 (11) SCC 410).

6. Though some of the factors highlighted by the High Court may not

create a dent in the prosecution version but the cumulative effect certainly

casts a shadow upon the credibility of the prosecution version.  The view

taken is a possible view.  Therefore no interference is called for.

7. Appeal is dismissed.

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………………J. (C.K. THAKKER)

New Delhi:  

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November 7, 2008

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