16 December 2004
Supreme Court


Case number: Crl.A. No.-001173-001173 / 1999
Diary number: 5905 / 1999



CASE NO.: Appeal (crl.)  1173 of 1999



DATE OF JUDGMENT: 16/12/2004


JUDGMENT: J U D G M E N T                                                     


       In this appeal by special leave the State of U.P. has impugned  the judgment and order of the High Court of Judicature at Allahabad  dated December 1, 1998 in Criminal Appeal No.888 of 1980. The High  court, by its aforesaid judgment and order, set aside the judgment and  order of the Trial Court convicting  the respondent of the offence under  Section 302/34 IPC and sentencing him to undergo imprisonment for life.  It may be noticed that two other persons namely Ram Chander  



and Ram Das were put up for trial along with the respondent herein  namely, Shri Krishan. It is stated that both of them have since died.

       With the assistance of counsel appearing for the parties,  we  have gone through the judgment of the High Court and the material  placed before us.

       The prosecution case was that at about 9.00 A.M. on 15.7.1979  the deceased Ganga Singh and his wife Smt. Bitoli (PW1) were sitting on  the chabutra of Ram Saroop Tailor waiting for a bus to go to  Shahjahanpur, since PW1 was getting medical treatment at Shahjahanpur  and they used to go there to take medicines. Suddenly, the respondent -  Shri Krishan, together with Ram Chander and Ram Das (since deceased)  appeared on the scene. Ram Das caught hold of Ganga Singh, the  deceased, while Shri Krishan - respondent and Ram Chander assaulted  him with knives. Ganga Singh attempted to run away but fell down  dead  after covering a few paces. Smt. Bitoli                                                  ...3/-


(PW1) thereafter rushed to the police station and lodged the first  information report at 9.30 A.M. at Police Station Powayan which was at a  distance of two miles from the place of occurrence. PW5 - A.P.Tiwari,  Sub-Inspector of Police commenced investigation and reached the spot at  10.00 A.M. He found the dead body of Ganga Singh lying in front of the  shop of Ram Swaroop. He performed the inquest on the dead body and  sent the dead body for post mortem examination. Ultimately Shri Krishan  and two others were put up for trial before the First Additional Sessions  Judge, Shahjahanpur who, as earlier noticed, convicted and sentenced the



respondent and two others under Section 302/34 IPC.

       The prosecution examined three eye-witnesses namely, PW1,  Smt. Bitoli, wife of the deceased, PW2-Suraj Prakash who had a tea stall  near the place of occurrence and PW3 - Ram Swaroop, who had a  tailoring shop near the place of occurrence. PW2 and PW3 were                                                  ...4/-


declared hostile as they did not support the case of the prosecution. The  High Court, on consideration of the evidence on record led by the  prosecution found it to be unconvincing. It noticed that the statement  under Section 161 Cr.P.C. of the informant PW1 was recorded after 13  days. According to PW5 - Sub Inspector A.P.Tiwari, he had attempted to  record her statement on the same day but since she was under great agony   her statement could not be recorded. Thereafter, so long as he was in  charge of the investigation he did not record the statement. It appears  from the record that the investigation of the case was handed over to  another investigating officer Bhim Singh - PW6 on 17th July, 1979.  Ultimately Bhim Singh (PW6) recorded her statement on 28.7.1979.  There was thus, a delay of almost 13 days in recording the statement of  the informant under Section 161 Cr.P.C. Moreover, the High Court found  the explanation given by the investigating officer rather unconvincing.  We have also noticed that the first information report  lodged  immediately after                                                  ...5/-


the occurrence is a very lengthy FIR giving all details about the previous  enmity and the manner in which the occurrence took place. If the FIR was  really lodged by PW1, which was doubted by the High Court, it cannot be  said that she was in such a disturbed state of mind that she could not give  her statement under Section 161 Cr.P.C.

       The High court has also pointed out a serious doubt as to  whether the first information report was lodged by the informant at the  time alleged i.e. after half an hour of the occurrence. The High Court  examined the record and found that the entire inquest report was in one  ink while the name of the informant in the inquest report was by a  different ink, which created a suspicion that when the inquest report was  prepared, the FIR had not come into existence, and it had not been  decided as to who would be made the first informant. It was later that the  name of the informant was inserted in the inquest report. This gives rise  to a great deal of doubt as to whether the FIR was lodged                                                  ...6/-                         -6-

by the person named therein, and at that time, because in that event the  name of the informant would have been written at the time when the  remaining contents of the inquest report were written.

       The presence of PW1 was sought to be justified on the  reasoning that she was waiting for a bus to go to Shahjahanpur where she  was being treated. The prosecution produced no evidence to show that  she was required to go to Shahjahanpur in connection with her treatment.  In fact PW1 could not even disclose the name of the doctor who was  treating her. The High Court also examined her evidence and found that  there were significant improvements made by her at the trial. It also  found that if really the occurrence took place in the village where she  resided, it was highly improbable that she would have left for the police  station even without informing her son.



       The High Court has also considered the fact that one of the  accused namely Ram Chander, had moved an                                                  ...7/-


application on 13.10.1979 claiming that he should be identified by Smt.  Bitoli (PW1) in a test identification parade. An order was passed but the  police did not take steps to hold a test identification parade. This conduct  of the prosecution also gave rise to serious doubt whether Smt. Bitoli  (PW1) was really an eye-witness and had seen the occurrence and named  the assailants. Failure to hold a test identification parade in such  circumstances created a serious doubt about the truthfulness of the  prosecution case.

       On a perusal of the evidence on record, the High Court found  that implicit reliance should not be placed on the testimony of PW1.

       Having considered all aspects of the matter, we are satisfied that  this is not a case in which this Court may be justified in interfering  with  an order of acquittal passed by the High Court. The reasons given by the  High Court for acquitting the respondent appear                                                  ...8/-


to be reasonable and are based on evidence. It is well settled that even if  on the basis of the same evidence, two views are possible, the Appellate  Court will not be justified in reversing an order of acquittal if the same is  based on evidence on record and the view taken is a possible reasonable  view of the evidence.         We, therefore, see no merit in this appeal and the same is,  accordingly, dismissed.