REPORTABLE                       IN THE SUPREME COURT OF  INDIA

           CRIMINAL APPELLATE JURISDICTION   

             CRIMINAL APPEAL NO.  1037   OF 2005

SUKHDEEP SINGH @ DEEP SINGH ..  APPELLANT(S)

vs.

STATE OF UTTAR PRADESH & ANR...  RESPONDENT(S)

O  R D E R

This  appeal  by  way  of  special  leave  is  directed  

against the judgment of the  Allahabad High Court whereby  

the judgment of acquittal of the Sessions Judge has been  

reversed and the accused appellant has been convicted and  

sentenced to imprisonment for life etc. under Sec.302 of  

the IPC.   

The facts of the prosecution story are as under:

The appellant Sukhdeep Singh and the acquitted co-

accused Raje were friends whereas Gurbachan Singh (PW.2)  

the  first  informant  and  Karam  Singh  were  brothers.  

Balvendra Singh, brother of Sukhdeep Singh aforesaid, had  

some  dispute  with  one  Kashmir  Singh  against  whom  some  

Criminal and Civil proceedings were also going on.  As per  

the prosecution story about a month before the incident  

the two accused had come to the house  of Gurbachan Singh  

and  had  threatened  Karam  Singh  to  leave  the  company  of  

Kashmir Singh, failing which they would kill him.  As this  

threat  had  no  effect  on  Karam  Singh,  the  two  accused  

arrived at his home at about 6.00 a.m. on 5th June, 1980 and

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whereas Sukhdeep Singh was carrying a rifle belonging to  

Balvendra Singh,  Raje was carrying  a shotgun.  It appears  

that a  compromise was proposed even at that time and to  

ensure that it would not be violated the accused suggested  

that they go to the  Gurudwara to take an oath before the  

Guru Granth Sahib.  On this assertion Gurbachan Singh and  

Karam  Singh  accompanied  by  the  accused  left  for  the  

Gurudwara and along the way associated  Mahender Singh and  

Darshan Singh and  also told them as to what had transpired  

and the terms of the  compromise. As the group reached the  

crossing  of  village  Nateura,  Gurbachan  Singh,  Darshan  

Singh  and  Mahender   Singh  who  were  following  the   two  

accused and Karam Singh who had gone swiftly ahead, Raje

suddenly  caught  hold  of  Karam  Singh  and  Sukhdeep  Singh  

fired a shot which struck him in the stomach. Gurbachan  

Singh  and  the  others  raised  an  alarm  on  which  Sukhdeep  

Singh  fired  another  shot  towards  them  without  hitting  

anybody.  The accused then ran away with their weapons.  

One  Ninder Singh (PW.3) who was working in a nearby field  

also saw the incident.  Gurbachan Singh and the others also  

found that Karam Singh had died instantaneously on account  

of the gun shot injury suffered by him.  Gurbachan Singh  

also rushed to the police station which was about 9 miles  

away and recorded the FIR at about 1.30 p.m.  ASI Ragghu  

Singh (PW.7) reached the murder site, recorded the inquest  

report  and  sent  the  dead  body  for  its  post-mortem  

examination.  The post-mortem examination was held on the

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next day at about 4.15 p.m. by Dr. C.P.Srivastava (PW.1).  

On the completion of the investigation the two accused were  

put to trial on a charge of murder. The prosecution relied  

primarily  on  the  statements  of  Gurbachan  Singh  (PW.2)  

Ninder Singh (PW.3) and Mahender Singh (PW.5) the alleged  

eye witnesses to the incident as also on the evidence of  

PW.4. Ram Asray Pandey the expert from the Forensic Science  

Laboratory  and  Dr.  C.P.Srivastava  (PW.1)  the  Doctor  

concerned.  

The trial court on an appreciation of the evidence  

held that the statement of Gurbachan Singh (PW.2) was at

variance  with  the  medical  testimony  given  by   Dr.  C.P.  

Srivastava  (PW.1)  in  as  much  that  the  direction  of  the  

injury  suffered  by  Karam  Singh  falsified  the  ocular  

evidence of Gurbachan Singh.  The Court also held that the  

evidence of the recovery of the empty shell from the place  

of incident appeared to be a bit of padding by the police  

as the weapon that had been recovered from Sukhdeep Singh  

accused was of .315 bore whereas the cartridge that had  

been recovered at the time of the inspection of site by  

ASI Ragghu Singh on the day of the murder, was of .303 bore  

and it was thus impossible to believe that this cartridge  

could have been fired from the weapon in question.  It was  

also  observed  that  as  .303  bore  was  a  prohibited  bore  

weapon, cartridges of this category were not available in

the market   and  the  prosecution  had,   failed to  

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explain as to the source from where this cartridge had been  

procured.  The Court further held that before the incident  

about a month earlier when the accused had advised  Karam  

Singh to leave the company of Kashmir Singh was also not  

proved and as such the motive itself was not acceptable.  

Having held as above, the trial Court acquitted both the  

accused.   

The  State  of  U.P.,  thereafter,  filed  an  appeal  

before the Allahabad High Court. The High Court maintained

the acquittal of Raje but reversed the acquittal of the  

present appellant Sukhdeep Singh.  The High Court held that  

there was no reason to disbelieve the eye witnesses (PW.2  

and PW.3) one the brother and the other a close relative of  

the  deceased.  The  High  Court,  however,  confirmed  the  

finding  of  the  trial  Court  that  Ninder  Singh's  (PW.3)  

statement could not be relied upon.  The High Court further  

held that the medical evidence clearly supported the ocular  

evidence, as  the anomaly pointed out by the trial Court  

with regard to the upward direction of the wound in the  

dead body had been explained by Gurbachan Singh (PW.2) in  

the course of his evidence. The High Court also observed  

that Ram Asray Pandey (PW.4) had clarified that though the  

cartridge recovered from the place of incident was of .303

bore and the weapon was of .315 bore, yet on testing he had  

found that a cartridge of this calibre could be fired from  

the weapon in question and as the empty shell had specific  

and distinctive markings, it had in fact been found the  

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alleged murder weapon. The High Court, therefore, conscious  

of  the  fact  that  in  an  appeal  against  acquittal,  

interference  should  be  minimal  and  that  too  in  case  of  

perversity of the judgment of the trial Court, held that  

the finding were indeed perverse and accordingly  reversed  

the judgment of acquittal.

Mr.  Rohan  Thawani,  the  learned  counsel  for  the

appellant has first and foremost pointed out that it was  

well-settled  that  interference  by  the  High  Court  in  an  

appeal against acquittal was called for only in special  

circumstances and that too in a case where the judgment of  

the trial Court was completely per-verse and could not have  

been rendered on the evidence and if the trial court had  

given good reasons, the High Court in the belief that a  

different  view  was  also   possible,  should  not  have  

interfered in the matter.  He has also pointed out that the  

medical  evidence  completely  belied   the  evidence  of  

Gurbachan Singh and Mahender Singh in as much that they had  

not been able to explain as to manner in which the injury  

had been suffered by Karam Singh or the direction in which  

the wound had been caused as Dr. C.P. Srivastava's (PW.1)

testimony   had completely falsified their evidence. He has  

also reiterated that the trial Court had on a very correct  

appreciation of the evidence concluded that the recovery of  

the rifle and the empty shell of .303 bore was a concocted  

piece of evidence at the instance of an over-zealous police  

officer.

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Mr. Pramod Swarup, the learned counsel for the State  

of U.P. has, however, argued very vehemently in support of  

the judgment.  

Undoubtedly,  Mr.  Rohan  Thawani's  broad  submission  

with regard to the scope of the High Court's interference

in an appeal against acquittal cannot be faulted but we are  

of the opinion that trial Court had clearly misread the  

evidence while discarding the evidence of  Gurbachan Singh  

and  Mahender  Singh.  It  has  to  be  borne  in  mind  that  

Gurbachan  Singh  was  the  brother  of  the  deceased  and  

Mahender  Singh  was  his  brother-in-law.  To  our  mind,  

therefore, it would be difficult to accept that they would  

leave out the true  assailants and to involve some other  

persons.  We  also  find  that  the  spontaneity  of  the  FIR  

supports the prosecution story. Admittedly the incident had  

happened at about 9.00 a.m. on 5th June, 1980, and the FIR  

had been recorded at the instance of PW.2 Gurbachan Singh  

by 1.30 p.m. at the police station which was 9 miles away.  

Gurbachan Singh has testified  that it had not been easy

for him to reach the police station as he had to walk a  

part of the distance before he could board a bus.  We also  

notice that no challenge has been to made the promptness in  

the lodging of the FIR.  We also see from a reading of the  

statements of Gurbachan Singh and Mahender Singh that not a  

single material contradiction had been pointed out in the  

evidence in court vis-a-vis their statements under Sec.161  

Cr.P.C.  meaning thereby that the version given by them was  

consistent from the very first day.

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We are also of the opinion that the medical evidence  

far from dislodging the prosecution story fully supports  

the  same.  Doctor  C.P.  Srivastava  found  the  following

injuries on the dead body:

1 “1. The wound of collate shot was (mix 8 cm)  

and it was on the upper portion of the valley  

about 3 cm left near the canter line.  It was  

out side any black spot or parched (jhul san)  

has  not  been  found.  this  would  was  in  the  

stomach on the back side going on the upper  

side.

2

3 2. The wound of bullet passing was 2 cm x 2 cm  

on the right side of the back on the lower part  

of shoulder this wound was mixing with wound  

number one.”

4 The Doctor also opined that the gunshot injury could  

have been caused by the firing of a shot from a distance of  

more  than  six  feet  on  the  premise  that  there  was  no

charring or burning of the skin.

Mr. Rohan Thawani has, however, placed reliance on  

the following part of the cross-examination:

“The fire must have made on the left front  

side  of  the  deceased.   The  duration  of  death  

which I have told can be changed by 5 hours on  

both side. During summer season the rigor mortis  

complete pass of within 36 hours.  The  

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possibility of the death of deceased is in the  

morning at 5 or 6' O clock on 5/6/80 seeing the  

duration of the wound No.1 of the deceased the

possibility is that the fire was made when the  

deceased  was  lying  or  fell  lying.   If  the  

deceased and the killer both stand on the same  

level than the deceased must have not received  

these  wounds  because  the  killer  must  have  the  

lower level than the deceased and the barrel of  

the gun must have been on the lower level.”

(Note: The paragraphs quoted above have been  

taken verbatim from the Paper Book.)

We are of the opinion that the opinion rendered by  

the Doctor does not reflect Mr. Thawani's submission. It  

bears notice that it is not the suggestion of the defence  

at any stage that the  deceased had been shot after he had  

fallen  to  the  ground  but  on  the  contrary  the  positive  

prosecution  version  is  that  the  incident  had   happened

after  Karam  Singh  had  been  held  by  Raje  in  his  grip.

We  find,  therefore,  that  the  very  basis  of  the  

argument raised by the learned counsel on the basis of the  

statement of Dr. C.P. Srivastava that the injuries could  

not have been caused while the deceased was in a standing  

posture is not borne out from  the cross examination. Even  

otherwise, we believe that it would be  impossible for any  

witness to give a categorical statement as to the posture  

that the deceased or the assailants were holding at the  

time when the firing incident happened.   The trial Court  

was not  

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justified in coming to a contrary conclusion as it appears  

to be a case of the misreading of the evidence.

Mr. Rohan Thawani has, however, placed reliance on  

Maniram vs.  State of U.P. (1994 (suppl.) 2 SCC 289) and  

State of U.P. Vs.  Ram Bahadur and Others  (2004 (9) SCC  

310) to contend that if the medical evidence contradicted  

the  ocular  evidence  account,  the  prosecution  must  fail.  

The observations relied upon by the learned counsel are,  

however, required to be examined in the peculiar facts of  

each case.  We have gone through the facts of the cited  

cases and find that they are not applicable to the facts of  

the present one. Moreover, in a criminal matter based on  

appreciation  of  evidence,  it  would  be  a  very  dangerous

doctrine to rely on decisions taken on facts as binding  

precedents as  all such matters have to be evaluated on an  

appreciation  of  the  evidence  which  has  come  before  the  

Court in that very case.

We also notice that the prosecution has explained  

the confusion,  if any, with regard to the cartridge and  

the  weapon.   Dr.  Ram  Asray  Pandey  on  testing  in  the  

laboratory found that a .303 bore cartridge was compatible  

with  firing  from  a  .315  bore  rifle  and  that  the  crime  

cartridge had in fact been fired from the crime weapon as  

the  distinctive  characteristics  matching  the  two  were  

available on Forensic examination. The  mere  fact,  

therefore, that the trial Court was of the opinion that as  

the prosecution had not

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been explained as to the source of the .303 cartridge, was  

a matter of no consequence as it is  common knowledge that  

prohibited  bore  weapons  and  cartridges  are  readily  

available for those who seek them out. We thus see no cause  

for interference in this matter.

The appeal is dismissed accordingly.

                     .................J.          (HARJIT SINGH BEDI)

.................J.                                      (T.S. THAKUR) New Delhi, December 1, 2009.