HARBEER SINGH Vs. SHEESHPAL & ORS
Supreme Court of India (Division Bench (DB)- Two Judge)
Appeal (Crl.), 1624-1625 of 2013, Judgment Date: Oct 20, 2016
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS.1624-1625 OF 2013
HARBEER SINGH … APPELLANT(S)
:Versus:
SHEESHPAL & ORS. … RESPONDENT(S)
WITH
CRIMINAL APPEAL NOS.217-218 OF 2013
STATE OF RAJASTHAN … APPELLANT(S)
:Versus:
SHEESHPAL & ORS. … RESPONDENT(S)
J U D G M E N T
Pinaki Chandra Ghose, J.
1. These appeals, by special leave, are directed against the judgment and
order dated 25th November, 2011, passed by the High Court of
Judicature for Rajasthan, Jaipur Bench, Jaipur, in D.B. Criminal
Appeal No.290/1995 and D.B. Criminal Appeal No.375/1995, whereby the
High Court has quashed and set aside the conviction of the accused
respondents. Criminal Appeal Nos.1624-1625 of 2013 are filed by the
son of the deceased and Criminal Appeal Nos.217-218 of 2013 are filed
by the State of Rajasthan challenging the acquittal order passed by
the High Court.
2. The brief facts of the case as unfolded by the prosecution are as
follows: On 21.12.1993, at 7.55 P.M., Bhagwara Ram (PW-8), the brother
of the deceased Balbir Singh, gave a written report at P.S. Kotwali
Sikar, stating that on 21.12.1993 in the evening at about 6.00 P.M.,
when his younger brother Balbir (deceased) was returning to his house,
two men were standing near the Dhaba of Shankar and he started talking
to them. In the meantime, Sheeshpal (son of Khuba Ram) came from the
side of Sikar driving his Jeep and with an intention to kill, hit
Balbir and dragged him upto the Dhaba of Suresh as a result of which
Balbir died on the spot. The owner of the Dhaba – Suresh Kumar chased
them on his motorcycle. It was further stated that the act was
committed by Sheeshpal in furtherance of his old enmity with Balbir in
connivance with Bhanwarlal, Dhanvir, Mangal (sons of Khuba Ram) and
Bhanwarlal’s brother-in-law Nemichand and Shiv Bhagwan of Village
Gothura Tagalan. It is also mentioned in the written report that at
the time of the incident, Sheeshpal was driving the jeep and
Nemichand, Shiv Bhagwan, Rajendra and Prakash were with him in the
Jeep and it is not mentioned that Bhanwarwal was present in the jeep
or at the place of occurrence. The names of Dhanvir and Mangal were
dropped later on.
3. The Police registered a case under Section 302 of the Indian Penal
Code and began investigation. Formal FIR was registered, place of
occurrence was inspected, site plan was prepared, post-mortem of the
dead body was done, Panchnama of the dead body was prepared and the
vehicle used in the crime along with number plate of the vehicle and
broken parts was seized. Statements of the witnesses were recorded and
during investigation accused persons were taken into custody. After
completion of the investigation, accused Bhanwar Lal was declared
absconding. Charge sheet was filed against the accused persons before
the learned Magistrate and the case was committed to the Sessions
Court for trial. On Bhanwar Lal’s presence, his case was also
committed as above and both the cases were amalgamated and trial
commenced. Charges under Sections 149, 302, 120B of the IPC were
framed against all the accused persons except Bhanwar Lal. Accused
Bhanwar Lal was charged under Sections 302, 120B of IPC. All the
accused persons pleaded ‘not guilty’ and hence they were tried by the
Court of Sessions. The Trial Court convicted the accused persons and
sentenced them to life imprisonment under Section 302 read with
Section 149 of the IPC. They were also sentenced severally under
various sections.
4. Aggrieved by the judgment and order dated 17.06.1995, passed by the
Trial Court, the accused persons filed appeals before the High Court
of Judicature for Rajasthan, Jaipur Bench, Jaipur. The High Court
allowed the appeals, set aside the judgment and order passed by the
Trial Court and acquitted all the accused persons. Hence, these
appeals, by special leave, are filed before this Court.
5. We have heard the learned counsel appearing for the Appellant as also
the learned counsel appearing for the Respondents and perused the oral
and documentary evidence on record.
6. The Trial Court convicted the accused relying upon the successful
establishment of the following facts by the prosecution:
a) Death of the deceased due to unnatural reasons vide the evidence
of PW4 (medical jurist who conducted the post-mortem of the
deceased), Ext. P-12 (post-mortem report), Ext. P-15
(Panchnama), and the evidence of PW8 (complainant);
b) Hatching of criminal conspiracy to commit the murder of the
deceased by accused Bhanwar Lal along with Sheespal, Nemi Chand,
Shiv Bhagwan and Rajendra Kumar vide the evidence of PW3 and
PW9;
c) Existence of enmity between accused persons and the deceased;
d) Formation of an unlawful assembly by the accused Sheeshpal,
Nemichand, Shiv Bhagwan, Rajendra Kumar and Prakash having the
common object of committing the murder of the deceased vide the
evidence of PW8, PW1, PW5, PW6 and PW11;
e) Use of force and violence in furtherance of the common object by
using vehicle RJ–23-C-0203 of Sheeshpal and commission of the
offence defined under Section 300, fourthly, of IPC.
7. However, the High Court gave the benefit of doubt to the Respondents
and acquitted them on the ground that the prosecution was not able to
prove its case beyond all reasonable doubt since the eye-witnesses
were interested in the complainant and hence unreliable, while most
other prosecution witnesses were chance witnesses. The evidence of the
eye-witnesses both as to the fact of the alleged conspiracy and the
murder of the deceased, did not inspire confidence; there were
inconsistencies and improvements in the deposition of the prosecution
witnesses made over their statements recorded under Section 161
Cr.P.C. Further, there was unexplained delay in recording the evidence
of certain prosecution witnesses as well as many important and basic
lapses in investigation that made the prosecution case suspicious.
8. Before proceeding with an analysis of various contentions raised by
the parties or expressing opinion on the appreciation and findings of
fact and law recorded by the Courts below, we wish to reiterate the
scope of interference by this Court in a criminal appeal against
acquittal under Article 136 of the Constitution of India.
9. In Himachal Pradesh Administration Vs. Shri Om Prakash, (1972) 1 SCC
249, it was held by this Court:
“In appeals against acquittal by special leave under Article
136, this Court has undoubted power to interfere with the
findings of fact, no distinction being made between judgments
of acquittal and conviction, though in the case of acquittals it
will not ordinarily interfere with the appreciation of evidence
or on findings of fact unless the High Court ‘acts perversely or
otherwise improperly’.”
10. The above principle has been reiterated by this Court in a number of
judicial decisions and the position of law that emerges from a
comprehensive survey of these cases is that in an appeal under Article
136 of the Constitution of India, this Court will not interfere with
the judgment of the High Court unless the same is clearly unreasonable
or perverse or manifestly illegal or grossly unjust. The mere fact
that another view could also have been taken on the evidence on record
is not a ground for reversing an order of acquittal. [See State of
U.P. Vs. Harihar Bux Singh & Anr., (1975) 3 SCC 167; State of Uttar
Pradesh Vs. Ashok Kumar & Anr., (1979) 3 SCC 1; State of U.P. Vs. Gopi
& Ors., (1980) Supp. SCC 160; State of Karnataka Vs. Amajappa & Ors.,
(2003) 9 SCC 468; State of Uttar Pradesh Vs. Banne @ Baijnath & Ors.,
(2009) 4 SCC 271; State of U.P. Vs. Gurucharan & Ors., (2010) 3 SCC
721; State of Haryana Vs. Shakuntla & Ors., (2012) 5 SCC 171 and Hamza
Vs. Muhammadkutty @ Mani & Ors., (2013) 11 SCC 150].
11. It is a cardinal principle of criminal jurisprudence that the guilt of
the accused must be proved beyond all reasonable doubt. The burden of
proving its case beyond all reasonable doubt lies on the prosecution
and it never shifts. Another golden thread which runs through the web
of the 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 the accused should be adopted. [Vide Kali Ram
Vs. State of Himachal Pradesh, (1973) 2 SCC 808; State of Rajasthan
Vs. Raja Ram, (2003) 8 SCC 180; Chandrappa & Ors. vs. State of
Karnataka, (2007) 4 SCC 415; Upendra Pradhan Vs. State of Orissa,
(2015) 11 SCC 124 and Golbar Hussain & Ors. Vs. State of Assam and
Anr., (2015) 11 SCC 242].
12. Keeping in mind the aforesaid position of law, we shall examine the
arguments advanced by the parties as also the evidence and the
materials on record and see whether in view of the nature of offence
alleged to have been committed by the Respondents, the findings of
fact by the High Court call for interference in the facts and
circumstances of the case.
13. It has been submitted by the learned counsel for the Appellant that
the High Court had erred in ignoring the prosecution evidence which
conclusively proved the guilt of the accused persons who had conspired
to kill the deceased in a garb of accident. Further, the High Court
had also erred in reversing the conviction of the accused persons
despite presence of sufficient evidence which indicated involvement of
all the accused persons and a complete chain of incriminating
circumstances proved by the prosecution.
14. Per contra, the learned counsel for the Respondents has primarily
reiterated the reasons that found favour with the High Court in
recording an order of acquittal in favour of the Respondents viz.
failure of prosecution to prove beyond reasonable doubt that the
accused persons Bhanwarlal, Sheeshpal, Nemichand and Shiv Bhagwan
hatched criminal conspiracy at the Dhani of Sheeshpal at around 7-8
p.m. on 19.12.1993 and that the prosecution case suffered from
contradictions, discrepancies and inconsistencies and, in particular,
that the testimony of eye witnesses did not inspire confidence due to
the reasons recorded by the High Court.
15. We have given careful consideration to the submissions made by the
parties and we are inclined to agree with the observations of the High
Court that PW3 and PW9 were not witnesses to the alleged conspiracy
between the accused persons since not only the details of the
conversation given by these two prosecution witnesses were different
but also their presence at the alleged spot at the relevant time seems
unnatural in view of the physical condition of PW9 and the distance of
Sheeshpal’s Dhani from Sikar road. Besides, it appears that there have
been improvements in the statements of PW3. The Explanation to Section
162 Cr.P.C. provides that an omission to state a fact or circumstance
in the statement recorded by a police officer under Section 161
Cr.P.C., may amount to contradiction if the same appears to be
significant and otherwise relevant having regard to the context in
which such omission occurs and whether any omission amounts to a
contradiction in the particular context shall be a question of fact.
Thus, while it is true that every improvement is not fatal to the
prosecution case, in cases where an improvement creates a serious
doubt about the truthfulness or credibility of a witness, the defence
may take advantage of the same. [See Ashok Vishnu Davare Vs. State Of
Maharashtra, (2004) 9 SCC 431; Radha Kumar Vs. State of Bihar (now
Jharkhand), (2005) 10 SCC 216; Sunil Kumar Sambhudayal Gupta (Dr.) &
Ors. Vs. State of Maharashtra, (2010) 13 SCC 657 and Baldev Singh Vs.
State of Punjab, (2014) 12 SCC 473]. In our view, the High Court had
rightly considered these omissions as material omissions amounting to
contradictions covered by the Explanation to Section 162 Cr.P.C.
Moreover, it has also come in evidence that there was a delay of 15-16
days from the date of the incident in recording the statements of PW3
and PW9 and the same was sought to be unconvincingly explained by
reference to the fact that the family had to sit for shock meetings
for 12 to 13 days. Needless to say, we are not impressed by this
explanation and feel that the High Court was right in entertaining
doubt in this regard.
16. As regards the incident of murder of the deceased, the prosecution has
produced six eye-witnesses to the same. The argument raised against
the reliance upon the testimony of these witnesses pertains to the
delay in the recording of their statements by the police under Section
161 of Cr.P.C. In the present case, the date of occurrence was
21.12.1993 but the statements of PW1 and PW5 were recorded after two
days of incident, i.e., on 23.12.1993. The evidence of PW6 was
recorded on 26.12.1993 while the evidence of PW11 was recorded after
10 days of incident, i.e., on 31.12.1993. Further, it is well-settled
law that delay in recording the statement of the witnesses does not
necessarily discredit their testimony. The Court may rely on such
testimony if they are cogent and credible and the delay is explained
to the satisfaction of the Court. [See Ganeshlal Vs. State of
Mahrashtra, (1992) 3 SCC 106; Mohd. Khalid Vs. State of W.B., (2002) 7
SCC 334; Prithvi (Minor) Vs. Mam Raj & Ors., (2004) 13 SCC 279 and
Sidhartha Vashisht @ Manu Sharma vs. State (NCT of Delhi), (2010) 6
SCC 1].
17. However, Ganesh Bhavan Patel Vs. State Of Maharashtra, (1978) 4 SCC
371, is an authority for the proposition that delay in recording of
statements of the prosecution witnesses under Section 161 Cr.P.C.,
although those witnesses were or could be available for examination
when the Investigating Officer visited the scene of occurrence or soon
thereafter, would cast a doubt upon the prosecution case. [See also
Balakrushna Swain Vs. State Of Orissa, (1971) 3 SCC 192; Maruti Rama
Naik Vs. State of Mahrashtra, (2003) 10 SCC 670 and Jagjit Singh Vs.
State of Punjab, (2005) 3 SCC 68]. Thus, we see no reason to interfere
with the observations of the High Court on the point of delay and its
corresponding impact on the prosecution case.
18. Further, the High Court has also concluded that these witnesses were
interested witnesses and their testimony were not corroborated by
independent witnesses. We are fully in agreement with the reasons
recorded by the High Court in coming to this conclusion.
19. In Darya Singh Vs. State of Punjab, AIR 1965 SC 328 = 1964 (7) SCR
397, this Court was of the opinion that a related or interested
witness may not be hostile to the assailant, but if he is, then his
evidence must be examined very carefully and all the infirmities must
be taken into account. This is what this Court said:
“There can be no doubt that in a murder case when evidence is
given by near relatives of the victim and the murder is alleged
to have been committed by the enemy of the family, criminal
courts must examine the evidence of the interested witnesses,
like the relatives of the victim, very carefully........But
where the witness is a close relation of the victim and is shown
to share the victim’s hostility to his assailant, that naturally
makes it necessary for the criminal courts examine the evidence
given by such witness very carefully and scrutinise all the
infirmities in that evidence before deciding to act upon it. In
dealing with such evidence, Courts naturally begin with the
enquiry as to whether the said witnesses were chance witnesses
or whether they were really present on the scene of the
offence.…..If the criminal Court is satisfied that the witness
who is related to the victim was not a chance-witness, then his
evidence has to be examined from the point of view of
probabilities and the account given by him as to the assault has
to be carefully scrutinised.”
20. However, we do not wish to emphasise that the corroboration by
independent witnesses is an indispensable rule in cases where the
prosecution is primarily based on the evidence of seemingly interested
witnesses. It is well settled that it is the quality of the evidence
and not the quantity of the evidence which is required to be judged by
the Court to place credence on the statement.
21. Further, in Raghubir Singh Vs. State of U.P., (1972) 3 SCC 79, it has
been held that the prosecution is not bound to produce all the
witnesses said to have seen the occurrence. Material witnesses
considered necessary by the prosecution for unfolding the prosecution
story alone need be produced without unnecessary and redundant
multiplication of witnesses. In this connection general reluctance of
an average villager to appear as a witness and get himself involved in
cases of rival village factions when spirits on both sides are running
high has to be borne in mind.
22. The High Court has further noted that there were chance witnesses
whose statements should not have been relied upon. Learned counsel for
the Respondents has specifically submitted that PW5 and PW6 are chance
witnesses whose presence at the place of occurrence was not natural.
23. The defining attributes of a ‘chance witness’ were explained by
Mahajan, J., in the case of Puran Vs. The State of Punjab, AIR 1953 SC
459. It was held that such witnesses have the habit of appearing
suddenly on the scene when something is happening and then
disappearing after noticing the occurrence about which they are called
later on to give evidence.
24. In Mousam Singha Roy and Ors. Vs. State of W.B., (2003) 12 SCC 377,
this Court discarded the evidence of chance witnesses while observing
that certain glaring contradictions/omissions in the evidence of PW2
and PW3 and the absence of their names in the FIR has been very
lightly discarded by the Courts below. Similarly, Shankarlal Vs. State
of Rajastahan, (2004) 10 SCC 632, and Jarnail Singh & Ors. Vs. State
of Punjab, (2009) 9 SCC 719, are authorities for the proposition that
deposition of a chance witness, whose presence at the place of
incident remains doubtful, ought to be discarded. Therefore, for the
reasons recorded by the High Court we hold that PW5 and PW6 were
chance witnesses and their statements have been rightly discarded.
25. In the light of the above and other reasons recorded by the High
Court, we hold that the evidence of the eye witnesses is not truthful,
reliable and trustworthy and hence cannot form the basis of
conviction. Their presence at the scene of occurrence at the time of
the incident is highly unnatural as also their ability to individually
and correctly identify each of the accused from a considerable
distance, especially when it was dark at the alleged place of
occurrence, is itself suspect.
26. Besides these, the prosecution has also been unable to convincingly
connect the jeep of the accused Sheeshpal with the incident beyond
reasonable doubt. Further, owing to other lapses in investigation, as
recorded by the High Court, we are convinced that the prosecution has
been unable to prove its case beyond all reasonable doubt. The view
taken by the High Court in the facts and circumstances of the case
appears to be a reasonably plausible one.
27. Thus, in the light of the above discussion, we are of the view that
the present appeals are devoid of merits, and we find no ground to
interfere with the judgment passed by the High Court. The appeals are,
accordingly, dismissed.
….....….……………………J
(Pinaki Chandra Ghose)
….....…..…………………..J
(Amitava Roy)
New Delhi;
October 20, 2016.
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