no doubt, an innocent man has lost his life at the hands of another man, and looking at the way in which the investigation was handled, we are sure to observe that it was carried out in a lackluster manner. The approach of the Investigating Officer in recording the statements of witnesses, collecting the evidence and preparation of site map has remained unmindful. The Investigating Officer, dealing with a murder case, is expected to be diligent, truthful and fair in his approach and his performance should always be in conformity with the police manual and a default or breach of duty may prove fatal to the prosecution’s case. We may hasten to add that in the present case the investigation was carried out with unconcerned and uninspiring performance. There was no firm and sincere effort with the needed zeal and spirit to bring home the guilt of the accused. We feel that there are no compelling and substantial reasons for the High Court to interfere with the order of acquittal when the prosecution has miserably failed to establish the guilt of the accused. Added to this, the accused has already undergone nine years’ of imprisonment and we feel that it is a fit case inviting interference by this Court. Resultantly, the appeal is allowed and the judgment of conviction and order of sentence passed by the High Court is set aside. =2016 Dec.http://judis.nic.in/supremecourt/imgst.aspx?filename=44290 – MAHAVIR SINGH Vs. STATE OF MADHYA PRADESH A.K. SIKRI, N.V. RAMANA

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 1141 OF 2007

MAHAVIR SINGH … APPELLANT
VERSUS
STATE OF MADHYA PRADESH … RESPONDENT

JUDGMENT

N.V. RAMANA, J.

This appeal arises out of the judgment and order dated 19th March, 2007
passed by the High Court of Madhya Pradesh, Bench at Gwalior in Criminal
Appeal No. 36 of 1996 whereby the High Court has partly allowed the appeal
preferred by the State by confirming the judgment of the Trial Court for
the offence under Section 148 of IPC and convicted the appellant herein for
the offence under Section 302, IPC and sentenced him to undergo
imprisonment for life.

The brief facts of the case as culled out from the case of the prosecution
are that on 26th December, 1987 at about 1 p.m. while Gambhir Singh (PW 7)
(brother of the deceased) was having lunch at his home, the appellant along
with a group of co-accused persons, each armed with deadly weapons rushed
to his house hurling abusive filthy words and picked up a quarrel with his
brother Jagannath Singh (deceased) who was sitting outside on a platform
(Chabutara) along with his nephew Bir Singh (PW 11). When Jagannath Singh
(deceased) raised objection to their behavior, the appellant fired a
gunshot in the abdomen of the deceased as a result of which he fell down on
the ground and succumbed to the injuries.
Gambhir Singh (P.W. 7) carried the body of the deceased to the police
station, Lahar on a bullock cart and lodged the FIR (Annexure P-1) at 4.15
PM on the same day. Dilip Singh Yadav (PW-13) prepared inquest memo and Dr.
A. K. Upadhyay (P.W. 12) conducted autopsy on the dead body. On the next
day, Dilip Singh Yadav (PW 13) seized blood stained soil and plain soil
from the place of occurrence, as per seizure memo. He also seized a gun, 12
live cartridges and 9 empty cartridges from the possession of appellant
Mahavir Singh, an axe from Sobaran (co-accused) and a lathi from Kanched
Singh (another co-accused) as per seizure memo and sent them to the
Forensic Science Laboratory at Sagar. Consequently, statements of witnesses
were recorded under section 161 of Cr.P.C., spot map was prepared
and Charge-sheet was filed against the appellant under sections 302, 147,
148 and 149 of the IPC in the Court of Judicial Magistrate First Class,
Lahar who committed the case to Court of Sessions for Trial. The Trial
Court framed charges u/s 302 and 148 of IPC against the appellant and under
sections 148, 302/149 of IPC against co-accused. All the accused pleaded
not guilty and claimed to be tried. To prove the guilt of the accused, the
prosecution has examined 13 witnesses and marked several Exhibits while the
accused examined none in defence and no exhibits were marked on his behalf.

The Trial Court by its judgment and order dated 30th November, 1994
acquitted the appellant from the alleged offences mainly on the ground that
there are contradictions in the evidence of eyewitnesses to that of medical
evidence, prosecution has failed to prove beyond reasonable doubt formation
of unlawful assembly with a motive of committing murder of the deceased and
also failed to establish that the bullet had been fired with the firearm
seized from the appellant.

Dissatisfied with the Judgment of the Trial Court, the State preferred an
appeal before the High Court claiming that the judgment of the Trial Court
is perverse and illegal inasmuch as it did not appreciate the prosecution
evidence in right perspective and ignored the evidence of the eyewitnesses.
The High Court, on a reanalysis of evidence of prosecution witnesses and
other material available on record came to the conclusion that the Trial
Court was right in acquitting the other co-accused persons but found fault
with the acquittal of the appellant under Section 302 IPC. The High Court,
therefore, partly allowed the appeal by confirming the judgment of the
Trial Court in respect of the charge under Section 148 and convicted the
appellant herein for the offence under Section 302, IPC and sentenced him
to undergo imprisonment for life. Aggrieved by the Judgment of the High
Court, the appellant approached this Court in appeal.

Learned counsel for the appellant submitted that the Trial Court rightly
acquitted the appellant, after elaborately considering the evidence on
record, upon coming to the conclusion that there is lack of credibility in
the testimony of the prosecution witnesses, and, in particular, the medical
and ocular testimonies are conflicting; there was considerable delay on the
part of Investigating Officer in recording the evidences of alleged
eyewitnesses inasmuch as statements by none of the eyewitnesses were
recorded on the day of occurrence of the incident.

In the background of this factual matrix, learned counsel for the appellant
has advanced his arguments that since the appellant and victim parties have
prior enmity over some pending criminal cases, the family members of the
deceased, i.e., Gambhir Singh (PW 7), Shanti Devi (PW 8), Bir Singh (PW 11)
in connivance and with the help of a pocket witness Madho Singh (PW 9)
concocted the story, by projecting himself as an eyewitness, and falsely
implicated the appellant. According to him, this fact is clearly
established with the contradictions in the medical evidence and the
unreliable evidence of the alleged interested eyewitness. The presence of
Gambhir Singh (PW 7), at the time of occurrence, as heavily relied upon by
the prosecution, proves to be false in the light of evidence of Bir Singh
(PW 11) who nowhere in his testimony mentioned that Gambhir Singh (PW 7)
alone came out of the house and witnessed the incident and Madho Singh (PW
9) claimed that soon after the shooting, Gambhir Singh (PW 7), Bir Singh
(PW 11) and Shanti Devi (PW 8) came out of the house and therefore the
accused fled away from the spot. It is also contended that the alleged
eyewitnesses Gambhir Singh (PW 7), Bir Singh (PW 11) and Shanti Devi (PW
8) made material improvements in their testimonies before the Court in
order to connect the case of prosecution with the medical report. Thus, the
presence of the eyewitnesses at the place of occurrence is doubtful.

Learned counsel further urged that as per the site plan prepared by the
Investigation Officer and also as per the medical evidence, the deceased
Jagannath Singh was standing when he was shot. According to the medical
report, the injuries sustained by the deceased are possible only when the
assaulter stands at a height above the victim. Contrary to this, the case
advanced by the prosecution, coupled with the evidence of alleged
eyewitness, is that the appellant was standing on a lower level and the
deceased was standing on a higher level i.e. on the platform. In his
statement Madho Singh (PW 9) categorically mentioned that the deceased was
sitting on the platform (Chabutara) and the appellant was standing on the
ground, when he was shot. While the medical report indicated that the
margins of the wounds were inverted and the bullet must have been fired
from a distance of within 6 feet, and as per the testimonies of the direct
eyewitnesses, the said distance varied between 12 to 22.5 feet. The absence
of human blood at the alleged place of incident i.e. on the platform and
presence of blood on the ground in front of the platform further renders
the prosecution’s case even more doubtful. This blood also could not be
matched with that of the deceased and therefore, recovery of weapons is of
no relevance. Simply for the reason that the post-mortem report indicated
that the deceased had died due to one single gunshot, and mere recovery of
nine empty cartridges from the appellant does not in any way connect him
with the crime, when the empty cartridges were not recovered from the place
of incident and also in the absence of authenticated proof that the bullet
shot at the deceased was fired from the gun owned by the appellant. Learned
counsel thus submits that the statements of eyewitness are not trustworthy.
Considering the facts in their entirety, such as delayed recording of
statements of the eyewitnesses and an unsuccessful attempt to reveal as to
where the bullet had struck the victim and the unmatched statements by
prosecution witnesses with that of the medical expert, the learned Trial
Court was pleased to record the order of acquittal of the appellant.

The learned counsel finally submitted that the High Court, on the other
hand, failed to appreciate the evidence in true legal perspective and
wrongly interfered with the well reasoned judgment of acquittal passed by
the Trial Court based on a cogent and detailed reasoning and that the High
Court committed a grave error by acquitting the accused for the offence
under Section 302 IPC. The impugned judgment is contrary to the settled
legal principles as it did not give due weightage to the medical evidence
and rejected the same without ascribing any reason. Thus, interference by
the High Court with the reasoned judgment of acquittal passed by the Trial
Court is unwarranted. Learned counsel submits that in the light of settled
legal principles, the conviction of the appellant by the High Court is
vague and uncalled for and the same requires to be set aside by this Court.
On the other hand, learned counsel appearing for the State, argued that the
judgment of the Trial Court acquitting the appellant was wholly erroneous
as it was passed without taking into account the prosecution evidence in
its right perspective. There was no inconsistency in the evidence of
eyewitnesses who were very much present at the scene of offence and the
Trial Court was not justified in ignoring their evidences. The High Court,
after re-appreciating the entire evidence on record, took a justifiable
stand in convicting the accused under Section 302 of the IPC by a well
reasoned judgment and that there is no illegality or perversity in the
conviction of the accused calling interference by this Court.
We have heard the learned counsel on either side at length and perused the
material available on record. Now it is imperative to look into the scope
of interference by the appellate Court in an appeal against acquittal and
whether the High Court was justified in convicting the accused under
Section 302, IPC by reversing the order of acquittal passed by the Trial
Court.

In the criminal jurisprudence, an accused is presumed to be innocent till
he is convicted by a competent Court after a full-fledged trial, and once
the Trial Court by cogent reasoning acquits the accused, then the
reaffirmation of his innocence places more burden on the appellate Court
while dealing with the appeal. No doubt, it is settled law that there are
no fetters on the power of the appellate Court to review, reappreciate and
reconsider the evidence both on facts and law upon which the order of
acquittal is passed. But the court has to be very cautious in interfering
with an appeal unless there are compelling and substantial grounds to
interfere with the order of acquittal. The appellate Court while passing an
order has to give clear reasoning for such a conclusion.

It is no doubt true that there cannot be any strait jacket formula as to
under what circumstances appellate Court can interfere with the order of
acquittal, but the same depends on facts and circumstances of each case. In
the case on hand, we have to examine the rationale behind the conclusion of
the High Court in convicting the accused and the compelling reasons to
deviate from the order of acquittal passed by the Trial Court.

On a thorough analysis of the judgment impugned, it is evident that the
High Court has not recorded any reasons for partly setting aside the
judgment of the Trial Court which has acquitted all the accused persons
from the same set of facts before it. The High Court which has set aside
the acquittal order of the Trial Court has observed that the Trial Court
has based its reasoning on guess work. We find it that even the High Court
has committed the same mistake and basing on the same facts and guess work
has arrived at the conclusion that the appellant is guilty.

It is specifically urged by the learned counsel for the appellant that as
per the medical evidence, the injuries sustained by the deceased are
possible only when the assaulter stands at a height above the victim. In
this process, the court has guessed that Mahavir Singh (accused-appellant)
and Jagannath (deceased) were of similar height which is nobody’s case and
no evidence is available on record to come to a conclusion that the height
of the two is same. The evidence available on record in this regard is a
statement of Dr. A.K. Upadhyay (PW 12) that the deceased was of average
Height. Now in order to establish that the bullet traveled in a downward
direction, they have explained that the position of the gun usually kept in
a downward position resting on the chest. Now the logical fallacy is to
have assumed the height of the platform whose height has not been recorded
due to sloppy investigation by the Investigating Officers. There exists a
reasonable doubt because of the fact that the height of the platform was
not recorded and the same cannot be guessed at this point of time. Further,
the deposition of the Doctor is very clear that the shooter might have been
at a lower level. While some of the witnesses have suggested that the
deceased was on the ground while others have pointed out to the fact that
he was standing on the platform. Therefore, from the same set of facts, the
Trial Court as well as the High Court have arrived at different
conclusions, such an exercise cannot be undertaken by the High Court in an
Appeal unless the conclusion drawn by the Trial Court cannot be sustained
based on the facts and circumstances and when two conclusions are possible
based on the evidence available on record, the appellate court should be
all the more reluctant to interfere with the findings recorded by the Trial
Court.
It appears to us that the difference of opinion between the Courts below in
deciding whether or not the appellant has committed the offence with which
he is charged, mainly revolves around the presence of alleged direct
eyewitnesses at the spot, possibility of appellant’s inflicting firearm
injury to the deceased in view of the positioning of the injury sustained
by the deceased, the material infirmity, if any, and contradiction in the
ocular and medical evidence. It is, however, clear that though, at the
outset, the accused/appellant absolutely rejected the allegation and
pleaded not guilty by taking the defence of alibi that, on the date of
incident, he was irrigating his field, but his claim has not been supported
by any evidence.

Undoubtedly, Gambhir Singh (PW 7—brother of the deceased) has accepted that
certain criminal proceedings were pending between the accused and his
family members. He also admits that one case had already been filed by the
accused prior to the incident. Admittedly, Shanti Devi (PW 8—wife of the
deceased) also has deposed that there was an altercation between her son
Vijender and Dhullu, on which they killed her husband. Thus, the parties
are admittedly in hostile terms and the incident in question occurred in a
broad day light at the residence of the deceased by doing away his precious
life. The prosecution, in support of its version, has heavily relied upon
the statements of eyewitnesses Gambhir Singh (PW 7-complainant and also
brother of the deceased), Shanti Devi (PW 8-wife of the deceased), Madho
Singh (PW 9) and Bir Singh (PW 11-nephew of the deceased). The learned
Trial Judge disbelieved the presence of eyewitnesses on the spot in view of
delayed recording of their statements by the Investigating Officer (PW 13)
and also they remained unsuccessful in revealing exactly as to where the
bullet had struck the deceased. We also find that nowhere in the First
Information Report, the name or presence of eyewitness Shanti Devi (PW 8)
was mentioned as a witness to the incident.

The High Court has attached a lot of weight to the evidence of the said
Madho Singh (PW 9) as he is an independent witness. On perusal of the
record, it appears that the said person already had deposed for the victim
family on a number of previous occasions, that too against the same
accused. This being the fact, it is important to analyze the jurisprudence
on interested witness. It is a settled principle that the evidence of
interested witness needs to be scrutinized with utmost care. It can only be
relied upon if the evidence has a ring of truth to it, is cogent, credible
and trustworthy. Here we may refer to chance witness also. It is to be seen
that although the evidence of a chance witness is acceptable in India, yet
the chance witness has to reasonably explain the presence at that
particular point more so when his deposition is being assailed as being
tainted.

A contradicted testimony of an interested witness cannot be usually treated
as conclusive. The said Madho Singh (PW 9) has admitted that he has been a
witness in another case against the accused for the deceased. Here it is to
be seen that the said Madho Singh (PW 9) has been acting as a pocket
witness for the family. Further, the credibility of this independent
witness can be challenged on the fact that the commotion was only heard by
the said Madho Singh (PW 9) whereas the rest of the members of the locality
did not come for help. As Madho Singh (PW 9) is a chance witness as well
as an interested witness herein, causes suspicion and does not inspire
confidence. This admission by Madho Singh (PW 9) not only forces us to
doubt the veracity of his own deposition but also has created doubts on the
version of Gambhir Singh (PW 7).

We have thoroughly examined the evidence of expert witnesses as well as
other ocular witnesses. The evidence of Dr. A.K. Upadhyay (PW 12) reveals
that when the deceased sustained bullet injury, he might have been in a
standing position and the bullet would have entered from left side and
exited from right side of the body. This fact, however, corroborated with
the evidences of PW 7 (Gambhir Singh) and PW 8 (Shanti Devi), but the
statements of PW 9 (Madho Singh) and PW 11 (Bir Singh) do not support it.
Similarly, there were contradictions between the statements of Dr. Upadhyay
(PW 12) and that of the eyewitnesses as to the distance and height of the
assaulter while inflicting the grievous injury to the deceased and whether
the deceased was standing on the platform (Chabutara) or came down from it
while receiving the bullet injury. We find from the statement of Dr.
Upadhyay (PW 12) that he was not clear and definite to say exactly from
what position and distance the assaulter could have fired the gun.

Going by the seizure memo (Ex.P/3) apparently one gun, 12 live and 9 empty
cartridges were recovered from the appellant. The evidences of eyewitnesses
support this fact and no question was put to the I.O. after the recovery of
the gun and cartridges, that whether he himself shot from the seized gun to
create evidence. The prosecution’s story is somewhat strengthened by the
ballistic expert’s report (Ex. P/12) which affirms that the gun seized from
the appellant was in perfect order, the empty cartridges bore the same
impression on pin as seized from the accused and the live cartridges were
actually fired by the gun seized from the appellant. But nowhere it was
mentioned that the death of the victim occurred by the bullet released from
the seized gun. Merely the seizure of gun and cartridges from the
appellant, the ongoing enmity between the parties on account of various
criminal litigations and the altercation and exchange of heated words
between the rival groups on the morning of the same day, cannot establish
the guilt of accused beyond reasonable doubt.

The position of law in cases where there is a contradiction between medical
evidence and ocular evidence can be crystallized to the effect that though
the ocular testimony of a witness has greater evidentiary value vis-à-vis
medical evidence, when medical evidence makes the ocular testimony
improbable, that becomes a relevant factor in the process of the evaluation
of evidence. However, where the medical evidence goes far that it
completely rules out all possibility of the ocular evidence being true, the
ocular evidence may be disbelieved [See : Abdul Sayeed v . State of M.P.,
(2010) 10 SCC 259]

In view of contradictory statements by the prosecution witnesses coupled
with the unmatched medical evidence, delay in recording of statements of
witnesses by the I.O., non-availability of proper site plan and in the
absence of authenticated ballistic expert report that the bullet had been
fired with the seized gun of the appellant, the Trial Court had to decide
the case against the prosecution and discharge the appellant from the
charges. The High Court, upon carrying the exercise of reappreciation of
evidence, formed the view that the reasons for delay in recording the
statements of witnesses have been properly explained; that as soon as the
bullet struck on the abdomen of the deceased, he immediately fell down from
the platform. It further observed that though the name of Shanti Devi (PW
8) was not mentioned in the FIR, there is positive evidence on record to
establish her presence at the time of incident along with other
eyewitnesses and this fact has been established by their corroborative
statements and there is no reason to disbelieve their statements. Here it
is worthwhile to mention that both the Courts below formed a common opinion
that the prosecution has failed to prove the charges under Sections 148 and
302/149 of IPC against the co-accused and discharged them from those
charges. The disagreement between the Trial Court and the High Court is
only in respect of the charge under Section 302, IPC against the appellant.

It is the duty of the Apex Court to separate chaff from the husk and to
dredge the truth from the pandemonium of Statements. It is but natural for
human beings to state variant statements due to time gap but if such
statements go to defeat the core of the prosecution then such
contradictions are material and the Court has to be mindful of such
statements [See : Tahsildhar Singh v. State of UP, AIR 1959 SC 1012; Pudhu
Raja v. State, (2012) 11 SCC 196; State of UP v. Naresh, (2011) 9 SCC 698].
The case in hand is a fit case, wherein there are material exaggerations
and contradictions, which inevitably raises doubt which is reasonable in
normal circumstances and keeping in view the substratum of the prosecution
case, we cannot infer beyond reasonable doubt that the appellant caused the
death of the deceased.

Normally, when a culprit perpetrates a heinous crime of murder and takes
away the life of a human being, if appropriate punishment is not awarded to
that offender, the Court will be failing in its duty. Such crime, when
indulged by a criminal blatantly, is not committed against an individual
alone, but is committed against the society as well to which the criminal
and victim are a part. It needs no emphasis from this Court that the
punishment to be awarded for such a crime must be relevant and it should
conform to and be consistent with the atrocity and brutality with which the
crime has been carried out.

Here in the instant case, no doubt, an innocent man has lost his life at
the hands of another man, and looking at the way in which the investigation
was handled, we are sure to observe that it was carried out in a lackluster
manner. The approach of the Investigating Officer in recording the
statements of witnesses, collecting the evidence and preparation of site
map has remained unmindful. The Investigating Officer, dealing with a
murder case, is expected to be diligent, truthful and fair in his approach
and his performance should always be in conformity with the police manual
and a default or breach of duty may prove fatal to the prosecution’s case.
We may hasten to add that in the present case the investigation was carried
out with unconcerned and uninspiring performance. There was no firm and
sincere effort with the needed zeal and spirit to bring home the guilt of
the accused. We feel that there are no compelling and substantial reasons
for the High Court to interfere with the order of acquittal when the
prosecution has miserably failed to establish the guilt of the accused.
Added to this, the accused has already undergone nine years’ of
imprisonment and we feel that it is a fit case inviting interference by
this Court.

Resultantly, the appeal is allowed and the judgment of conviction and order
of sentence passed by the High Court is set aside. Consequently, the
appellant shall be set at liberty forthwith if not required in any other
case.

……………………………..J. (A.K. SIKRI)

…………………………….J. (N.V. RAMANA)
NEW DELHI,
NOVEMBER 09, 2016

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