[REPORTABLE]                          IN THE SUPREME COURT OF INDIA

                 CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1297 OF 2008

Gopal Singh & Ors.      ……..Appellants

Versus

State of M.P.     ………Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

The prosecution story is as under:

1. On the 19th June 1990, the two deceased Rajmohan and  

Niranjan Singh had gone to Jammusarkala to buy sugar  

and while they were returning to their village and were  

passing  through  the  nearby  forest,  they  were  severely  

beaten by the six accused with “lathis”, “lohangis” and  

“farsas”.  Information of the incident was given by Maina  

Banjara  PW3  to  Daulat  Singh  PW4  and  Sumer  Singh  

PW10.   Sumer  Singh  and  Maina  Banjara  and  several  

others  then  returned  to  the  spot  whereafter  Niranjan

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Singh  and  Rajmohan  (injured)  made  oral  dying  

declarations  that  they  had  been  beaten  by  the  six  

accused with the aforementioned weapons.  The two died  

a short while later.  Intimation of the incident was also  

received  in  Police  Station  Berasia  at  3.40  p.m.  by  

telephone  and  was  recorded  in  Ex.P-3  on  which  Sub-

Inspector O.P.Katiyar PW13 reached the place of incident  

along with a police force and found the dead bodies.  A  

Ruqa was recorded at 4.40 p.m. at the site and on its  

basis a formal FIR was registered in the Police Station.  

The  dead  bodies  were  thereafter  dispatched  to  the  

hospital  for  post-mortem which  was  performed  by  Dr.  

R.K.Sharma PW1 who found 28 injuries on each of the  

two deceased.  During the course of the investigation, the  

accused  were  arrested  and  on  the  basis  of  their  

disclosure statements, the weapons of offence were also  

recovered.   The  police  also  ascertained  that  the  two  

parties were very closely related inter-se and that there  

was gross enmity between them with respect to certain  

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agricultural land.  On the completion of the investigation,  

the  accused  were  charged  for  an  offence  punishable  

under Section 302 read with Section 34 of  the IPC as  

they pleaded not guilty, they were brought to trial.

2.    The prosecution in support of his case relied primarily  

on the eye – witness account of Feran Singh PW5 and on  

the oral dying declarations made by the two deceased to  

Daulat  Singh  PW4,  Harnath  Singh PW9,  Sumer  Singh  

PW10  and  Shivraj  Singh  PW11.   In  addition,  the  

prosecution relied  on the  recoveries  made pursuant  to  

the  disclosure  statements  of  the  accused.   The  

prosecution case was then put to the accused and the  

plea taken was of serious enmity on account of a land  

dispute  between  them  and  Daulat  Singh  PW4  as  the  

latter was keen to take over their agricultural land.  The  

trial  court  recorded  a  comprehensive  judgment  and  

discussed the evidence under two broad heads (1) the eye  

witness  evidence  of  Feran  Singh  PW5  and  (2)  the  

circumstantial  evidence  which  included  the  motive  

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behind  the  incident  and  the  dying  declaration  of  the  

deceased and the recoveries of the weapons of  offence.  

The Court then examined the evidence of the prosecution  

in  the  background  of  the  motive  and  observed  that  

Maharaj  Singh accused was the  son of  Balwant Singh  

from his first wife and the other accused were sons of  

Maharaj  Singh  whereas  PW4  Daulat  Singh  and  PW9  

Harnath Singh were also sons of Balwant Singh though  

from a  second wife  and Feran Singh  PW5 was  son  of  

Daulat  Singh PW and Shivraj  Singh PW11 was son of  

Sumer Singh PW10, meaning thereby all  the witnesses  

belonged to one large group.  The Court also observed  

that from the evidence on record, it was amply clear that  

the relations between the two sets of brothers were very  

strained  and  several  criminal  litigations  inter-se  them  

and pertaining to a land dispute had started in the year  

1984 and were subsisting even on the date  of  murder  

and that the periodic quarrels between them had caused  

great friction in the family.  The Court then went on to  

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examine  the  prosecution  story  and  recalled  that  two  

different stories had been projected by the prosecution,  

first,  that a report had been filed by Daulat Singh PW at  

the Police Station immediately after the crime had been  

committed  at  about  1  p.m.  and  the  second  that  

information had been received on telephone as per Ex.P3  

at 3.45 p.m. on which Sub-Inspector Katiyar PW13 had  

reached  the  place  of  incident  at  4p.m  and  after  spot  

inspection at 4.45 p.m. had initiated the recording of the  

FIR.  The Court,  however,  disbelieved the statement of  

Sub Inspector that he had reached the place of incident  

at  4  p.m.  observing  that  if  the  information  had  been  

received at 3.45 p.m. it would not have been possible for  

him to have covered the 18 km distance through a very  

rustic  rural  road  within  20  minutes.   The  Court,  

accordingly, held that on account of the discrepancy with  

regard to the lodging of the FIR at 1 p.m. or after 4.45  

p.m., the only inference that could be drawn was that till  

1p.m. the names of the accused were not known and that  

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the  report  of  1  p.m.  had  been  withheld  by  the  

prosecution.   The Court  then went into the alternative  

that  assuming  that  the  FIR had indeed been recorded  

shortly after 4.45 p.m. and the incident had taken place  

at 10 or 10.30 a.m. about one km away from the village  

and the time taken in conveying the information to the  

village  by  Maina  Banjara  to  Daulat  Singh  and  Sumer  

Singh, it appeared to be a case of a delayed FIR.  The  

Court  further  observed  that  there  was  no  evidence  to  

show as to when the copy of the FIR had been received by  

the Magistrate, as provided by Section 157 of the Code of  

Criminal Procedure and finally concluded on this aspect  

by observing:

“it could be safely deduced that the FIR was   finalized  deliberately  as  an  after-thought,   after  having  dispatched the  dead  bodies for  post-mortem  examination.  Under  these  circumstances, namely the way in which the   FIR was filed, as to whether in point of fact,   the  FIR was  registered at  4.45 p.m.  or  at  1  p.m., and the details regarding the crime, non- despatch of  a copy thereof to the Magistrate,   non-compliance of immediate recording of the  incidence of  crime, omission of the names of   the  accused  persons  in  the  text  of  the   

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respective  panchnamas  on  the  bodies  and  also  in  the  merge  statements  thereof,  on  perusal of all  these circumstances,  I come to  the conclusion that the report was lodged with   unwarranted  delay  and  the  prosecution  has  since failed to provide any logical explanation   thereof.   Under  the  above  circumstances,   prima  facie  the  story  put  forth  by  the   prosecution is highly doubtful.”

3. The  Court  then  examined  the  dying  declarations  that  

have been allegedly made by the two deceased shortly before  

their deaths to Daulat Singh PW4, Harnath Singh PW9 and  

Sumer Singh PW10.  The Court referred to the broad principle  

underlying  the  recording  of  a  dying  declaration  and  

emphasized that its veracity had to be adjudged carefully as  

the  maker  was  not  available  for  cross-examination  and the  

Court was thus called upon to exercise great caution and for  

that purpose two broad factors had to be kept in mind, firstly,  

that the person making the dying declaration was physically  

capable  of  making  it,  and  secondly  that  the  statement,  if  

made, represented the true state of affairs.  The Court then  

examined  the  statement  of  the  witnesses  to  the  dying  

declaration and observed that as the evidence inter-se them  

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was  completely  discrepant  as  to  the  manner  in  which  the  

dying declaration had been made, a serious doubt was cast on  

the truthfulness of their testimony.  The Court also referred to  

the  evidence  of  Dr.  R.K.Sharma  PW,  the  doctor  who  had  

performed the post-mortem examinations, and had found 28  

wounds on each body, and observed that as per the statement  

of  the  doctor  both  the  injured  would  have  been  rendered  

unconscious within 10 to 15 minutes looking to the critical  

nature of the wounds.  The Court then tested the prosecution  

story  on  this  basis  and  opined  the  incident  had  occurred  

around 9  or  10 a.m.,  as  suggested,  and Daulat  Singh  and  

Sumer Singh had taken an hour to reach the place of incident  

(as Daulat Singh had virtually admitted that they had reached  

the site of at 11 a.m.),  it  appeared to be extremely doubtful  

that Rajmohan and Niranjan Singh were in a position to make  

any  statement.   The  Court  also  examined  the  statement  of  

Harnath Singh PW9 and observed that it was a blatant lie and  

that it would have been impossible for him to reach the place  

of incident to become a witness to the oral dying declarations.  

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The Court, accordingly, concluded that the statements of the  

aforesaid witnesses were totally contradictory and illogical and  

in point of fact the deceased were not in a position to make  

any statement and that under these circumstances, “the story  

of the dying declaration was totally made up, unnatural and  

non-dependable.”   The Court  also examined the evidence of  

the solitary eye witness Feran Singh PW son of Daulat Singh  

and recorded a positive finding that the story projected by him  

was totally  unnatural  inasmuch that  he  had rushed  to  the  

village from the site after seeing the incident about I km away  

where  his  father,  uncle,  brothers,  cousins  and  the  entire  

family had been present, but he did not tell them as to what  

had happened but had, in fact,  hidden himself  on the plea  

that  he  feared  for  his  own  safety.   The  Court  ultimately  

concluded  that  the  evidence  was  against  normal  human  

behaviour and could not be deemed to be trust-worthy.  The  

Court  also  held  that  the  investigation  in  the  matter  was  

completely irresponsible and shoddy and the police had made  

no attempt to ascertain the identity  of  the person who had  

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made the telephone call leading to the recording of Ex.P3 at  

3.40 p.m. and the prosecution story appeared to have been  

built  on  the  assumption  that  as  the  relations  between  the  

parties were strained, it were the accused and accused alone,  

who were responsible for the double murders.  The trial court,  

accordingly, acquitted the accused.  

4. Aggrieved  by  the  judgment  of  acquittal,  the  State  of  

Madhya Pradesh filed an appeal  in the High Court and the  

appeal has been allowed.  The judgment of the High Court is  

under challenge before us after the grant of special leave.   

5. It has been urged by Mr. Fakhruddin, the learned senior  

counsel for the appellants, that the High Court was remiss in  

upsetting the order of acquittal as the trial court had by a very  

cogent and detailed judgment considered every aspect of the  

matter and acquitted the accused, and that the High Court  

had ignored the basic principle that if the view taken by the  

trial  court  was  possible  on  the  evidence,  no  interference  

should be made.  It has been highlighted that the trial court  

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had  considered  the  evidence  under  two  broad  heads  and  

recorded a positive finding that the first report of the incident  

at about 1 p.m. had been suppressed by the prosecution and  

the report recorded after 4.45 p.m. was, thus,  not the first  

information  report  but  even  assuming  that  it  was  the  first  

report,  the fact that there was no evidence to show that the  

special report had been delivered to the Magistrate belied the  

prosecution story that it had been recorded at about 4.45 p.m.  

It  has  also  been  pointed  out  that  the  serious  animosity  

between  the  parties  was  proved  on  record  and  several  

litigations  that  were  continuing since  1984 was the  evident  

cause for the false implication of the accused, who were the  

father, Maharaj Singh and his five sons.  It has further been  

submitted that the prosecution had placed primary reliance on  

the  dying  declarations  made  by  the  two  deceased  to  four  

different  persons  and  in  the  light  of  the  statement  of  Dr.  

Sharma  PW  that  the  injured  could  not  have  remained  

conscious  for  more  10  or  15  minutes  after  sustaining  the  

injuries, the story of the oral dying declarations allegedly made  

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about  two  hours  thereafter  could  not  be  believed.   It  has  

further been pointed out that the conduct of Feran Singh PW5  

the solitary eye witness was completely unnatural and belied  

his presence.

6. Mrs. Vibha Dutta Makhija, the learned counsel appearing  

for  the  State  has,  however,  supported  the  judgment  of  the  

High Court and has argued that the High Court was justified  

in  believing  the  prosecution  story  as  the  incident  had  

happened all  of  a  sudden and a quick and clock work like  

investigation could not be expected in India’s rural set up.

7. We  have  considered  the  arguments  advanced  by  the  

learned counsel for the parties.  The High Court’s power while  

converting an acquittal into a conviction is no longer a matter  

of speculation and debate.  It is now well settled that if the  

trial court’s judgment is well based on the evidence and the  

conclusion  drawn  in  favour  of  the  accused  was  possible  

thereof, the High Court would not be justified in interfering on  

the  premise  that  a  different  view  could  also  be  taken  and  

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though the High Court was entitled to reappraise the evidence  

there should be substantial and compelling reasons for setting  

aside an acquittal order and making one of conviction.

8. A bare perusal of the record and the findings recorded by  

the trial court reveal that the present case is not one of the  

category which would call for interference by the High Court.  

The trial court has given positive findings with regard to the  

various  aspects  of  the  prosecution story  already  referred to  

above.  The High Court has, in the course of its judgment, not  

been able to meet the reasons which weighed with the trial  

court in drawing its conclusion.  The fact that the first report  

had been recorded at  about  1 p.m.  and suppressed by the  

prosecution has been largely ignored by referring to the first  

information recorded at about 4.45 p.m. after the Ruqa had  

been sent by Sub- Inspector Katiyar from the place of incident  

to the Police Station.  The High Court has also ignored the fact  

that there was no evidence to show as to when special report  

had been dispatched to or received by the Magistrate.   The  

inference drawn by the Trial  Court,  therefore,  that  the first  

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information of 1 p.m. had been suppressed by the prosecution  

as the names of the assailants were not known and that there  

was no evidence to confirm the time of the recording of the FIR  

shortly  after  4.45  p.m.  as  there  was  no  evidence  of  the  

dispatch or delivery of the special  report, which cast clearly  

suspicion even on this part of the prosecution story, has not  

been dealt with by the High Court.

9. The High Court has examined the reliability of the oral  

dying  declarations  made  by  the  two  deceased  to  the  four  

witnesses  but  while  observing  that  there  were  substantial  

discrepancies inter-se each of them, has still chosen to rely on  

their statements.  The Court has ignored the statement of Dr.  

Sharma  PW who  opined  that  the  injured  would  have  been  

rendered unconscious within 10 to 15 minutes after receiving  

their injuries by opining that this fact would vary from person  

to person.  This would undoubtedly be true, but the doctor’s  

statement is only one of the factors which had weighed with  

the Trial Court in rendering its opinion.  Even otherwise, an  

oral dying declaration made to a person who had very serious  

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enmity  with  the  accused  should  be  accepted  with  a  little  

hesitation and reservation.

10. We  also  find  that  the  High  Court  has  accepted  the  

statement  of  Feran  Singh  PW5  as  the  eye  witness  of  the  

incident ignoring the fact that his behaviour was unnatural as  

he  claimed  to  have  rushed  to  the  village  but  had  still  not  

conveyed the  information  about  the  incident  to  his  parents  

and others present there and had chosen to disappear for a  

couple of hours on the specious and unacceptable plea that he  

feared for his own safety.

11. We are, therefore, of the opinion that the judgment of the  

High  Court  is  erroneous  for  the  above  reasons.   We,  

accordingly, allow the appeal and direct the acquittal of the  

accused.  If  they  are  in  custody,  they  shall  be  released  

forthwith.   If  they  are  on bail,  their  bail  bonds shall  stand  

discharged.

…..……………………..J. (HARJIT SINGH BEDI)

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..……………………….J. ( A.K. PATNAIK)

May 12, 2010 New Delhi

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