REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 235-236 OF 2001   

State of Haryana …Appellant

Vs.

Shibu @ Shiv Narain and Ors. …Respondents

J U D G M E N T

Dr.  ARIJIT PASAYAT, J.

1. These  appeals  are  directed  against  the  common

judgment of a Division Bench of the Punjab & Haryana High

Court disposing of appeals i.e. Criminal Appeal No. 527DB of

1995 and 547DB of 1995. The main judgment is in Criminal

Appeal No. 527 DB of 1995.  In these appeals two appellants

were convicted by learned Sessions Judge, Rohtak in Sessions

Case No. 13 of 1995.

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2. Background facts in a nutshell are as follows:

On 18th January 1995, at about 8 or 8.30 a.m., Vijay

since deceased, was going from his house towards the bazar

for shopping and had gone a short distance, when the three

accused Shibu alias Shiv Narain, Surender Singh armed with

a pharsa and Bhagat Singh armed with a sword accosted him

and Shibu told him that they were going to teach him a lesson

for  the  slaps that  had been  given  to  him on  16th January,

1995.  Shibu then caught hold of Vijay in his grip, whereas

Bhagat Singh inflicted  a sword blow on his left  thigh, while

Surender accused aimed a blow on his leg which did not hit its

target.  On receipt of the injuries, Vijay cried “Mar diya Mar

diya”, which attracted Attar Singh (PW5) and Rajinder (PW6),

the brother and first cousin of deceased respectively, and one

Inder to the place of incident.  All the accused then ran away

from the spot. Vijay was, thereafter, taken to his house  and

then to the Civil Hospital, Bahadurgarh in a tractor by Attar

Singh and some others, but he succumbed to his injuries on

the way.  The dead body nevertheless reached the hospital, on

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which the doctor sent information vide  Ex. PE to the police,

which brought ASI Ranbir Singh to the hospital.  He recorded

the statement of Attar Singh Ex.PK at 11.50 a.m. and on its

basis, a formal FIR Ex. PK/2 was registered at Police Station,

Bahadurgarh at 12.05 p.m.; the special report being delivered

locally at 12.35 p.m.  The SHO/Inspector Sumer Singh, also

visited  the  place  of  occurrence  and  made  the  necessary

investigation at the spot.  The accused were arrested on 18th

January,  1995  and  on  their  interrogation  and  disclosure

statements,  a  pharsa  and  a  sword  were  recovered.  On

completion  of  the  investigation,  accused  Bhagat  Singh  was

charged for an offence  punishable  under Section 302 of the

Indian Penal Code, 1860 (in short ‘IPC’)  while the others were

charged for the same offence with the aid of Section 34 thereof

and as they claimed to be innocent, were brought to trial.

As noted  above,  PWs 5  & 6  Attar Singh and Rajinder

respectively  were  stated  to  be  eye  witnesses  to  the

occurrence.   The  trial  court  concluded  that  the  enmity

between  the  parties  stood  proved  as  they  had  been  on

opposite  sides in the panchayat elections and on account of

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this factor, accused Shibu had abused Attar Singh sometime

earlier and had been given a beating by him.  The court also

found that the  prosecution version as stated by Attar Singh

(PW-5)  and  Rajinder  (PW-6)  was  natural.   Accordingly,  the

three  accused  persons  were  found  guilty,  convicted  and

sentenced as afore-stated.

Stand  of  the  appellant  before  the  High  Court  in  the

appeals  was  that  the  murder  was  a  blind  one  as  the

prosecution witnesses have been procured after the incident

had come to light.

3. Learned  counsel  for  the  State  on  the  other  hand

submitted that not only it was their motive for the killing but

the evidence was cogent and credible.  The High Court found

substance  in  the  plea  of  the  three  accused  appellants

(respondents herein) and directed their acquittal.

4. Learned  counsel  for  the  State  submitted  that  the

analysis as done by the High Court is without any foundation

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and suffers from serious infirmity.

5. Learned counsel for the complainant also supported

the stand of the State.

6. Learned counsel for the accused on the other hand

submitted  that  the  High  Court  has  highlighted  the

discrepancies in evidence  and therefore  the appeals deserve

to be dismissed.

7. The High Court after analyzing the evidence recorded

as follows:

“We  are  of  the  opinion that the  presence  of Attar Singh PW-5  and Rajinder  FW-6  at  the spot  is  difficult  to  accept.  In  D.D.R.  No.15 which  pertains  to  the  present  incident,  the names  of  Rajinder  &  Inder  have not  been mentioned  and the  fact  as  to  whether  Attar Singh was an eye  witness, has also not been clearly  spelt  out.  Moreover,  it  appears  to  us that the description of the attack given by the two  witnesses  also  belies  their  presence  for two reasons;  firstly,  that  in the  F.I.R,  it  has been clearly stated that two injuries had been caused  to  the  deceased  i.e.  one  by  Bhagat Singh with a sword and the other by Surender Singh with  pharsa.   The post mortem report however, speaks of only one injury by Bhagat Singh. It was to cover this situation that both

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Attar Singh PW-5 and Rajinder  PW-6,  in the course of their statements given in Court, for the  first  time  stated  that  though  Surender Singh  had  aimed  a  pharsa blow  on  the  left thigh, yet  no injury had been  caused  to the deceased as, he had, at the crucial time, been able to move-his leg out of harms way. There is yet  another  circumstance  which  belies  the prosecution  case  and  also  shows  that  the investigation has not  been fair. In column, 10 of  the  inquest  report  Ex.PL/2 (original Hindi version),  it  is  apparent  that  a  serious interpolation has been made to fit in with the new story.  We  find that the  presence  of  the injury  on  the  ankle  allegedly  caused  by Surender  Singh was first noted  and then  by interpolating  the  word  “nahi",  the  effort  has been made to show that there was no second injury  on  the  deceased.  This interpolation is further  evident  from the  fact  that  an  injury which was present  would alone  find mention in the document and not a negative  fact that there was no injury. The counsel therefore, appears to be right in placing reliance on  Sat Darshan  Kalia v  State  of  Punjab  1996 (1) Recent Criminal Reports, 367, in  which this Court  his  held  that  where  the  investigation had  not  been  fair  and  an interpolation  had been  made  in  some  important  document,  a serious doubt could be created with regard to the  integrity  of  the  investigation  and  the veracity of the prosecution's story.

There  is  yet  another  significant circumstance  to  show  that  the  two  eye witnesses had not seen the occurrence.  PW 5 Attar Singh had clearly stated in the evidence that  a  sword  blow had  been  inflicted  in the thigh of Vijay from the height of the arm of the assailant  Bhagat  Singh.  Likewise,  Rajinder  - PW 6 in his statement had stated that Bhagat

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Singh  had  inflicted  a  blow  in  a  thrusting manner.  Dr.  Manju  Arora  PW-4,  who  had conducted  the  post mortem examination was cross  examined  in  extenso  by  the  defence counsel  as  to  the  inferences  that  could  be drawn on the medical evidence and she clearly stated that as the direction of the injury was from below to upward and as the attack had been  made from "straight front and stabbing, then  this  injury  was  not  possible  while standing. If one tries to cause this injury from sword from upward to downward, even  then, this injury cannot be  caused" and further "in the  event  of  the  assailant  and  the  injured standing, assailant has to bend down and take the  weapon in  such  a  low position,  at  least from the side of the entry wound, otherwise, in standing  position,  this  injury  cannot  be caused".  It  bears  repetition  that  Vijay  had been in a standing position when he had been caused the injury by Bhagat Singh. The doctor has clearly opined that the injury in question could not have been caused as the victim and the assailant were  both standing in a normal posture.  It  can  thus,  be  deduced  from  the evidence  of  the  doctor  that in this situation, the  injury  could  have  been  found  either parallel to the ground or moving from upward to downward.

The  presence  of  the  eye  witnesses  is further  belied  by  another  obvious circumstance.  As  per  the  prosecution  story, Shibu accused had been given a few slaps by Attar Singh PW-5 after he had abused him on the  evening of 16th January,1995. Vijay had not even  been  present  at the time when the slaps had been  administered.  It is, therefore, obvious that if Shibu bore any malice, it would have  been  towards  Attar  Singh  and  had  he been  present  at  the  spot  standing  close  by

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witnessing the  attack on Vijay, he  would not have  been  allowed  to  go  scot  free  and unscathed.”

8. The  High  Court  has  elaborately  highlighted  the

aforesaid aspects to conclude that the prosecution version is

highly improbable and lacks credence.

9. There is no embargo on the appellate court reviewing

the evidence upon which an order of acquittal is based. As a

matter of fact, in an appeal against acquittal, the High Court

as the court of first appeal is obligated to go into greater detail

of the evidence  to see  whether any miscarriage has resulted

from the order of acquittal, though it has to act with great cir-

cumspection and utmost care before  ordering the reversal of

an acquittal. Generally, the order of acquittal shall not be in-

terfered with because the presumption of innocence of the ac-

cused 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

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the accused should be adopted. The paramount consideration

of the court is to ensure that miscarriage of justice is prevent-

ed. 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 reappreciate the evidence  where

the accused has been acquitted, for the purpose of ascertain-

ing as to whether any of the accused really committed any of-

fence or not. (See Bhagwan Singh v. State of M.P.( 2002(4 )SCC

85) The principle to be followed by the appellate court consid-

ering the appeal against the judgment of acquittal is to inter-

fere 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 inter-

ference. This position has been reiterated in Joseph v. State of

Kerala (2003(1)  SCC 465),  Devatha Venkataswamy v.  Public

Prosecutor, High Court of A.P. (2003(10) SCC 700), State of Pun-

jab v. Karnail Singh (2003 (11) SCC 271), State of U.P. v. Babu

(2003 (11) SCC 280)  and Suchand Pal v. Phani Pal (2003 (11)

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SCC 527).

10. When the background facts as noticed by the High

Court are tested on the touchstone of the principles set out

above, it is clear that the appeals are without merit, deserve

dismissal, which we direct.

                         ……………………..........J.            (Dr. ARIJIT PASAYAT)              

 ……………………….......J.

 (P. SATHASIVAM)

 … ……….……….............J.

 (AFTAB ALAM)

New Delhi,      July 25, 2008

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