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CASE NO.: Appeal (crl.)  448 of 2001

PETITIONER: State of Uttar Pradesh

RESPONDENT: Ram Veer Singh and Ors

DATE OF JUDGMENT: 05/09/2007

BENCH: Dr. ARIJIT PASAYAT & D.K. JAIN

JUDGMENT: J U D G M E N T

CRIMINAL  APPEAL NO. 448 OF 2001

Dr. ARIJIT PASAYAT, J.

1. Challenge in this appeal is to the judgment of a Division  Bench of the Allahabad High Court setting aside the conviction  of the respondents for offences punishable under Section 302  read with Section 34 of the Indian Penal Code, 1860 (in short  ’the Act’) and Section 20l, IPC. Each of the respondents was  sentenced to undergo imprisonment for life for the offence  relatable to Section 302/34 IPC and four years’ for the other  offence.

2. The prosecution case in a nutshell is as follows.

Dal Chand (hereinafter referred to as the ’deceased’)  along with his wife Smt. Raj Kaur, the informant (PW-1) and  their son Paramjeet Singh (PW-7) had gone to graze their  cattle. At about sunset time on their way back to their house  they reached the courtyard of Ganga Ram. They were accosted  by the appellants who came out from behind the bushes.  Accused Ram Veer Singh was armed with a gandasa, Suresh  was holding a Ballam and Chet Ram was possessing a lathi.  They started belaboring the deceased Dal Chand, with their  respective weapons by saying that he should not be spared.  The cries of the above witness and the victim attracted  Chottey, Ganga Ram and Dhyan Singh all residents of  Mohanpur to the spot. On a challenge being given by them the    assailants started dragging the victim by holding him by his  feet. When they were challenged they rushed towards the  witnesses also and the witnesses thereafter abandoned the  chase of the assailants. They came back to the village and  after sometime the informant had gone to the spot with the  village Chowkidar. She did not find the body of her husband at  the spot although blood was found lying there. The search for  Dal Chand was conducted by his wife through out the night  but he could not be located or found. No villager was informed  or taken into confidence by her.

The motive of this murder as is apparent from the FIR  was to avenge the murder of Raghuvir Singh resident of village  Bhadaria.       Ram Veer Singh was nursing a suspicion that  deceased Dal Chand, was instrumental behind the murder of  Raghuvir. The FIR of the present incident was lodged at the  police station, Ganeshkhera by Smt. Raj Kaur on the next day  at 9.15 A.M. The body of the victim was discovered from a

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pond which was full of water after a month of the occurrence.  It was first discovered by the village Chowkidar. He informed  Smt. Raj Kaur who identified the corpse so recovered from the  pond of village Bhadaria as that of her husband Dal Chand.  Identity was based solely from the clothes worn by the corpse.  After identification of the corpse she informed the concerned  police station at about 7 P.M.  After completion of investigation  charge sheet was filed and charges were framed.

3.      The accused persons pleaded innocence. They seriously  challenged the identity of the dead body as that of the  deceased. The Trial Court found the accused persons guilty  and convicted and sentenced them, as aforesaid. Before the  High Court, the accused persons took the plea that the  autopsy conducted by Dr. K.S. Tewari (PW-2) indicated that  the body bore no marks of injury. Most of the organs below the  neck to the wrist were found missing by the Doctor. Scalp too  was found missing but the skull bones were found intact. They  bore no mark of any injury, i.e. any cut or fracture. The body  was found in highly decomposed state. The clothes did not  have any mark of assault by weapons or blood stains. It was  also submitted that the evidence of PW-l did not inspire  confidence. Her testimony was full of contradictions and it was  apparent that she was not telling the truth. The evidence of  the child witness (PW-7) was also found to be fragile and the  court should not have acted on it. 4.      The stand of the State, on the other hand, was that the  evidence was sufficient to fasten the guilt on the accused  persons.  

5.      The High Court analyzed the material on record and the  conclusions arrived at by the Trial Court. It noted that PW-4,  Chhotey Lal, who was claimed by the prosecution to be one of  the eye-witnesses resiled from the statements made during  investigation. It was found that the dead body was found from  a pond which was full of water after about a month. The  evidence of PW-1 was found to be totally unre1iable. She  claimed that she had gone to the police station with the blood  of her husband which was collected from the spot next  morning. According to her, this was done by her after lodging  the F.I.R. The High Court noticed that her testimony was that  first she went to the police station to lodge the report. After  that, she came back and went to police station with blood on  the second occasion. She had admitted that it was raining very  heavily and it continued to rain throughout the day. She had  admitted that when she had gone to report the case at the  police station, it was raining. She did not come out as it  continued to rain until evening. The High Court found it hard  to believe that she had gone with the blood taken from the  spot to the police station. Her statement was also controverted  by the investigating officer who stated that he had recovered  the blood and sample of earth from the spot of occurrence the  next day. The time of lodging the FIR was found to be  suspicious by the High Court in view of several contradictory  statements made by PW-l. The investigating officer also  admitted in his cross examination that the seals of the two  containers in which blood stained earth and samples had been  kept were found to be tampered with.

6.      The investigating officer had admitted that he had  recorded the statement of Chhotey Lal (PW-4) on 31.8.1978 as  this witness was not available earlier. The case diary  interestingly was not produced during trial by the investigating  officer. The High Court found that in the absence of any  definite material to prove that the dead body was that of the

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deceased, the prosecution version was rendered to that extent,  doubtful. Since PW-4 resiled from his statement made earlier,  the High Court examined the evidence of PW-l in detail. With  reference to her evidence, it was noticed that her relationship  with the deceased was not free from doubt.  She claimed that  she was married to the deceased.  But the child witness whose  evidence was otherwise found to be not sufficient to fasten the  guilt of accused, stated that she was not living with the  deceased on the relevant date. It was noted by the High Court  that PW-1 from the next day of murder was staying with one  Ikram. It was noted by the High Court that the village  Chowkidar who was supposed to have searched for the dead  body, was not examined and no explanation was offered by the  prosecution for the non-examination. The High Court noted  that PW-l’s conduct was totally not above board during tria1.   She filed an affidavit and an application in the court to show  that she was not aware of the incident, as alleged. Though the  High Court found that these papers were not exhibited, yet,  taking into account the admission of PW-l that she had in fact  put her thumb impression on these documents, found that to  be a factor throwing doubt on the credibility of PW-1. 7.      So far as Paramjeet (PW-7) is concerned, his evidence  was also found to be not reliable because he appeared to have  been tutored.  He was aged about 7-8 years when he gave the  statement on 11.7.1980. The incident had occurred on  24.08.1978, i.e. nearly two years before his deposition. That  means that he was about 5-6 years old at the time of incident.  The High Court, with reference to his evidence found that the  testimony he gave in court was the result of tutoring. In these  circumstances, the High Court concluded that the prosecution  has failed to establish the accusation.

8. Though learned counsel for the State submitted that the  circumstances highlighted by the prosecution were sufficient  to record conviction, we find that the High Court has  examined all the relevant aspects in detail and has recorded  the judgment of acquittal.  

9.      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 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. These aspects were  highlighted by this Court in Shivaji Sahabrao Bobade and Anr.  v. State of Maharashtra (AIR 1973  SC 2622), Ramesh Babulal

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Doshi v. State of Gujarat (1996 (4) Supreme 167), Jaswant  Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore  Jha v. State of Bihar and Ors. (2003 (7) Supreme 152), State of  Punjab v. Karnail Singh (2003 (5) Supreme 508,  State of  Punjab v. Pohla Singh and Anr. (2003 (7) Supreme 17) and  V.N. Ratheesh v. State of Kerala (2006 (10) SCC 617).

10.     In the instant case, we find that the reasons indicated by  the High Court for recording the order of acquittal do not  suffer from any infirmity to warrant interference. The appeal is  accordingly dismissed.