SADHU SARAN SINGH Vs. STATE OF U.P. & ORS.

Tags Murder

Supreme Court of India (Division Bench (DB)- Two Judge)

Appeal (Crl.), 1467-1468 of 2005, Judgment Date: Feb 26, 2016

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 1467-1468 OF 2005

SADHU SARAN SINGH … APPELLANT

VERSUS

STATE OF U.P. AND ORS. … RESPONDENTS

JUDGMENT

N.V. RAMANA, J.

1. These appeals are directed against the judgment passed by the High
Court of Judicature at Allahabad in Criminal Appeal Nos.2701 and 5802 of
2003, dated 07.12.2004, by which the High Court has allowed the appeals
filed by the accused- respondents herein and acquitted them for the
offences under Sections 147, 148, 149, 302, 307 and 504 of the Indian Penal
Code, 1860 (for short ‘the IPC’).

2. It is pertinent to mention here that the appellant before us was not
a party before the Courts below and the present appeals have been preferred
by him with the leave of this Court. The locus of the appellant is that he
is the brother of the informant Bhola Singh (PW1) who died during the
pendency of the appeal before the High Court and also paternal uncle of the
three deceased persons (Sons of informant Bhola Singh—PW1).

3. The facts in brief, as unfolded by the prosecution case are that
Bhola Singh (PW1)—the informant is a resident of village Kanso, district
Mau and on 4th October, 1994 at about 8 am when his sons namely Sheo Kumar,
Avdhesh and Yogendra (all three deceased) were repairing the cattle trough
in presence of one Ganga Singh, brother-in-law of the informant and one
Baijnath Singh (PW 2), the accused Ramashraya Singh, Satyendra Singh,
Brijendra Singh along with their father Ramchandra Singh armed with deadly
weapons came to the Baithka of the informant-Bhola Singh with the company
of Kamla Singh and Ram Saran Singh hurling filthy abuses. While Ramchandra
Singh exhorted his sons to eliminate the whole family of the victim, the
accused Ramashraya Singh and Kamla Singh opened fire with guns while
Satyendra Singh and Brijendra Singh attacked with katta upon the three sons
of Bhola Singh (PW1). The other accused also attacked the victim party with
their respective weapons. In the assault, the three sons of PW1 sustained
injuries and fell on the ground and Ganga Singh, brother-in-law of PW1
sustained firearm injuries. During the ongoing tussle, PW1—Bhola Singh ran
into the village and raised hue and cry whereupon the assailants took to
their heels. The attack resulted into the death of two sons of the
informant i.e. Shivshankar and Avadhesh on the spot while another son i.e.
Yogendra breathed his last on the way to the hospital.

4. At the instance of the informant (PW1), a First Information Report
(Ext. Ka-1) was lodged at 9.15 a.m. on the same day at Haldharpur P.S.
wherein PW1 stated that the incident had taken place on account of enmity
over land dispute between the parties. Constable Muharrir Ram Manohar
Maurya (PW-3) prepared the chick report (Ext. Ka-4) and registered the case
as Crime No.219/94 under Sections 147,148, 149, 302, 307 and 504 IPC. The
injured Ganga Singh was then sent for medical check up to the Primary
Health Centre.

5. Sub-Inspector Riyayatullah Khan, the Investigating Officer visited
the place of occurrence, held inquest of the dead bodies, prepared site map
and recorded the statement of the informant. He then collected blood
stained roll of clay and plain clay and prepared memo. Dr. O.P.Singh (PW 6)
who conducted medical examination of the injured Ganga Singh opined in his
report (Ext.Ka-33) that all the injuries were caused by fire arms and were
sustained within a period of 6 hours.

6. Dr. Jitendra Kumar Singh (PW7) conducted post-mortem examination on
the bodies of the three deceased persons. By his reports Ka-34, 35 and 36,
he expressed the opinion that the incident might have occurred at 8.00 a.m.
and that the intestines of all the three deceased contained semi-digested
food material and the injuries suffered by the victims were of firearms and
there was no blunt object injury. On 7-10-1994, the I.O. arrested
Ramchandra Singh and Ramsaran Singh and recorded statements of witnesses.
The I.O. filed charge sheet (Ext. Ka-32) against all the six accused
persons. Since the accused have denied the charges and prayed for trial,
the case was committed to the Court of sessions.

7. The prosecution, in support of its case, had examined two
eyewitnesses, namely, the informant Bhola Singh (PW1), father of all the
three deceased persons and Baijnath Singh (PW 2) and five formal witnesses
i.e. PW 6 Dr.O.P.Singh and P.W.7 Dr.Jitendra Kumar Singh, PW 5 the
Investigating Officer and PW 4 the Sub-Inspector and PW 3 Constable Ram
Manohar Maurya, who prepared the chick FIR and General Diary entry
pertaining to registration of the case. On the other hand, the accused have
produced four witnesses in their defence. During the pendency of trial, one
accused, namely, Ramchandra Singh died.

8. The Trial Court, after a full-fledged trial, came to the conclusion
that the accused were guilty of committing a cruel and heinous offence and
by its detailed judgment dated 22-05-2003 sentenced Ram Saran Singh,
Satyendra Singh and Brijendra Singh to undergo life imprisonment for the
offence under Section 302/149, IPC and imposed fine of Rs.10,000/-. In
default, they were directed to undergo two years’ rigorous imprisonment.
They were also convicted under Section 307/149 IPC and sentenced to seven
years’ rigorous imprisonment and a fine of Rs.5,000/-. In default, to
undergo one year rigorous imprisonment. Conviction under Section 148 IPC
was also recorded against these appellants. They were sentenced to two
years’ rigorous imprisonment and a fine of Rs.1,000/-. In default, six
months’ rigorous imprisonment was imposed on them. Death Sentence was
imposed upon Ramashraya Singh and Kamla Singh under Section 302/149 IPC
with a fine of Rs.10,000/-. In default, the appellants were directed to
undergo two years’ rigorous imprisonment. They were also convicted under
Section 307/149 IPC and were sentenced to 7 years’ rigorous imprisonment
and a fine of Rs.5,000/-. In default, to undergo rigorous imprisonment for
one year. Conviction under Section 148 IPC was also recorded against these
appellants. They were sentenced to two years’ rigorous imprisonment and a
fine of Rs.1,000/-. In default of payment of fine, six months’ rigorous
imprisonment was imposed.

9. Aggrieved thereby, all the five accused persons preferred criminal
appeals before the High Court. The High Court recorded complete
disagreement with the findings given by the Sessions Judge and allowed the
appeals of the accused by setting aside the judgment of the trial Court and
acquitted them of the charges and also rejected the Reference for
confirmation of death sentence of the accused Ramashraya Singh and Kamala
Singh. Dissatisfied with the order of acquittal passed by the High Court,
the brother of the deceased informant filed the present appeals by way of
special leave.

10. We have heard Shri Viswajit Singh, learned counsel for the appellant
and Shri Ranjit Rao, learned Additional Advocate General for the State and
Shri Pramod Swarup, learned senior counsel for the accused—private
respondents herein.

11. Shri Vishwajit Singh, learned counsel for the appellant vehemently
contended that the High Court committed a manifest and grave error in
analyzing the evidences of PW1 and PW2 and acquitted the accused without
proper application of mind. It ought not to have rejected the ocular
evidence of the informant PW 1 Bhola Singh, the ultimate victim and father
of the three deceased persons. The finding of the High Court that PW1 was
not present on the spot is untenable and treating his evidence as
unreliable, is totally perverse and bad in law in view of the true nature
and circumstances of the case. A prudent analysis of evidence of PW-1 would
clearly suggest that there are no discrepancies in his evidence and rather
it abundantly makes clear that he is a wholly reliable witness and his
evidence is trustworthy.

12. Similarly, the view expressed by the High Court that the presence of
PW 2–Baijnath Singh at the scene of occurrence is doubtful and it is an
afterthought, cannot be sustained as perusal of FIR lodged by PW-1 Bhola
Singh unequivocally shows that the name of PW-2 Baijanth Singh was referred
in the FIR and his presence at the place of occurrence was established
beyond any reasonable doubt. Moreover, nothing has been elicited in his
examination-in-chief or cross-examination mounting a doubt on the veracity
of his statement. Moreover, the witness has been consistent in his
statement fully supporting the prosecution story.

13. Lamenting on the view taken by the High Court in disregarding the
abduction of Ganga Singh, the injured witness, learned counsel explained
that Ganga Singh could not be produced in the witness box by the
prosecution for the reason that he was kidnapped by the accused persons
after being threatened and beaten up by them. In this regard, two FIRs,
i.e. one on 6.10.1997 and before that another on 12.9.1997 were also lodged
which would show that Ganga Singh was purposely kidnapped during the period
when the evidence of the witnesses were going on and the High Court has
wrongly mentioned that a photocopy of the final report would show that the
allegation of kidnapping was fabricated and although no such document was
either exhibited before the Trial Court or before the High Court. According
to him, the timing of the aforesaid kidnapping and threatening also
coincided with the fact that the statement of PW-1 Bhola Singh was
completed on 24.7.1997 and the statement of PW-2 Baijnath Singh was
completed on 13.11.1997. Regarding the minor inconsistency between medical
and ocular evidence, it is argued that it cannot derail the case of the
prosecution as the inconsistency is not of an extreme nature and weightage
has to be given to the evidence of eyewitness as per settled law. Merely
for the reason that no blunt injuries were found on the bodies, even when
the complainant had alleged, is of no consequence.

14. Negating the finding of the High Court as to the place of occurrence,
learned counsel submitted that the High Court did not consider the case in
its proper perspective. A perusal of entire evidence on record would
clearly establish the place of occurrence and that the prosecution has
succeeded in proving the guilt beyond all reasonable doubt. The evidence on
record clearly reveals that the Investigating Officer had recovered the
blood stained roll of the clay and the plain clay from the place of
incident, which was sent for examination wherein on analysis, human blood
was found on the same. Even the evidence of eyewitnesses PW-1 Bhola Singh
and PW-2 Baijnath Singh is very much consistent on the said aspect and,
therefore, the High Court was wrong to raise a dispute on the place of
occurrence. Contending further on the doubt raised by the High Court on the
timing of incident, learned counsel submitted that the High Court has laid
a lot of emphasis on the presence of semi-digested food in the medical
report and has held that it totally contradicts the case of prosecution
with regard to the time of occurrence of the offence, whereas the doctors
(PWs 6 & 7) in their examination-in-chief have clearly stated that the
incident might have taken place at 8 a.m. Thus the High Court erred in
recording a finding contrary to the evidence, particularly for the reason
that in villages generally people wake up early in the morning and start
work early after having breakfast and, therefore, presence of half-digested
food cannot be a probable ground to arrive at a conclusion that the
deceased must have died at night. Learned counsel finally submitted that
for all the aforesaid reasons, the High Court ought not to have interfered
with the well-reasoned judgment of the trial Court. In support of his
submissions, learned counsel placed reliance on various authorities of this
Court.

15. The learned counsel for the State supported the contentions of the
appellant and conceded that the High Court erred in acquitting the
respondents-accused ignoring certain relevant circumstances and material
evidence which clearly established the guilt of the accused. According to
him, the High Court has utterly failed to consider the genuine facts that
the FIR was lodged at 9.15 a.m. immediately after the incident without any
unreasoned delay, evidence of both the eyewitnesses i.e. PW-1 AND PW-2 were
reliable as their statements were completely corroborated by the medical
evidence; the injured Ganga Singh though could not be examined by the
prosecution but had been medically examined by PW-6 on the same day
corroborating the prosecution’s story and the motive of the accused to
commit the crime was established as they were having enmity with the victim
party in respect of a land dispute. Learned counsel, therefore, prayed that
considering the abundant and cogent evidence available on record, this
Court should exercise its powers under Article 136 of the Constitution of
India and set aside the impugned judgment and order by convicting the
accused.

16. Per contra, learned counsel appearing for the accused respondents
submitted that the prosecution case is unreliable for the reasons that the
place of occurrence and lodging of FIR is very much disputed, there is
difference between the medical and oral evidence of the witnesses, the so
called injured witness Ganga Singh despite being a relative of the
informant, has not been examined before the Court and the presence of semi-
digested food in the stomach of the deceased suggests that the incident
could have occurred between 2.00 to 4.00 a.m. totally controverting the
stand taken by the prosecution. The High Court has prudently appreciated
these facts and rightly held that the investigation department was hand in
glove with the complainant who wanted to implicate the accused in the
alleged crime. The alleged FIRs purporting to establish kidnapping story of
Ganga Singh cannot be of any consequence as the same were concocted and was
rightly disregarded by the High Court. Moreover, from the statements of PW-
1 Bhola Singh and PW-2 Baijnath Singh, it cannot be inferred that they were
actually present at the scene of offence at the time of occurrence of the
incident since their evidence does not support the same. Disputing the
scene of occurrence, learned counsel contended that as per prosecution
version, all the three deceased were laying clay on the nand but PW-4
Riyatullah Khan, who has prepared the panchnama had not found any clay on
the dead-bodies of the deceased nor in the post-mortem no clay was found
by PW-7 Dr. Jitendra Kumar. Another clinching factor in this regard is that
the place of firing as shown in the sketch map prepared by the I.O. is
contradictory to the place referred by PW-1 and P.W.2. in their statements.
The motive factor also stood not proved beyond reasonable doubt,
considering the statement of PW1 who had categorically stated in his
evidence that there was no dispute with regard to haudi and the land
abutted to that.

17. Learned counsel further contended that General Diary of the case has
been prepared on the plain paper, contrary to the provisions of the Police
Regulation Act. Apart from this, entry of sending the case diary to the
Superintendent of Police has not been made in the G.D., whereas under para
295(16) of the Police Regulation Act, it was necessary that the documents
which are received in the G.D. in the police station, are sent to the
police station after making entries; thus the IO has not complied with the
provisions of para 107 of the Police Regulation Act and due to this reason,
the investigation is vitiated. Learned counsel for the accused therefore
strenuously urged that there is no error in the acquittal order passed by
the High Court which does not call for any interference by this Court.

18. Generally, an appeal against acquittal has always been altogether on
a different pedestal from that of an appeal against conviction. In an
appeal against acquittal where the presumption of innocence in favour of
the accused is reinforced, the appellate Court would interfere with the
order of acquittal only when there is perversity of fact and law. However,
we believe that the paramount consideration of the Court is to do
substantial justice and avoid miscarriage of justice which can arise by
acquitting the accused who is guilty of an offence. A miscarriage of
justice that may occur by the acquittal of the guilty is no less than from
the conviction of an innocent. This Court, while enunciating the principles
with regard to the scope of powers of the appellate Court in an appeal
against acquittal, in the case of Sambasivan and Others V. State of Kerala,
(1998) 5 SCC 412, has held :
“The principles with regard to the scope of the powers of the appellate
Court in an appeal against acquittal are well settled. The powers of the
appellate Court in an appeal against acquittal are no less than in an
appeal against conviction. But where on the basis of evidence on record two
views are reasonably possible the appellate Court cannot substitute its
view in the place of that of the trial Court. It is only when the approach
of the trial Court in acquitting an accused is found to be clearly
erroneous in its consideration of evidence on record and in deducing
conclusions therefrom that the appellate Court can interfere with the order
of acquittal”.

19. This Court, in several cases, has taken the consistent view that the
appellate Court, while dealing with an appeal against acquittal, has no
absolute restriction in law to review and relook the entire evidence on
which the order of acquittal is founded. If the appellate Court, on
scrutiny, finds that the decision of the Court below is based on erroneous
views and against settled position of law, then the interference of the
appellate Court with such an order is imperative.

20. This Court in Chandrappa V. State of Karnataka, (2007) 4 SCC 415,
after referring to a catena of decisions, has laid down the following
general principles with regard to powers of the appellate Court while
dealing with an appeal against an order of acquittal:

“42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate Court while dealing
with an appeal against an order of acquittal emerge :

An appellate Court has full power to review, reappreciate and reconsider
the evidence upon which the order of acquittal is founded.

The Code of Criminal Procedure, 1973 puts no limitation, restriction or
condition on exercise of such power an appellate Court on the evidence
before it may reach its own conclusion, both on questions of fact and of
law.

Various expressions, such as, ‘substantial and compelling reasons’, ‘good
and sufficient grounds’, ‘very strong circumstances’, ‘distorted
conclusions’, ‘glaring mistakes’, etc. are not intended to curtail
extensive powers of an appellate Court in an appeal against acquittal. Such
phraseologies are more in the nature of ‘flourishes of language’ to
emphasise the reluctance of an appellate Court to interfere with acquittal
than to curtail the power of the Court to review the evidence and to come
to its own conclusion.

An appellate Court, however, must bear in mind that in case of acquittal,
there is double presumption in favour of the accused. Firstly, the
presumption of innocence is available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed to
be innocent unless he is proved guilty by a competent Court of law.
Secondly, the accused having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and strengthened by the trial
Court.

If two reasonable conclusions are possible on the basis of the evidence on
record, the appellate Court should not disturb the finding of acquittal
recorded by the trial Court.”

21. Reason is the heartbeat of every conclusion, without proper reason
the conclusion becomes lifeless. Having carefully considered the impugned
judgment and order passed by the High Court as also that of the Trial Court
and after perusing the records and giving anxious consideration to the
facts of the case on hand in the light of well-settled law, in our
considered opinion the judgment of the High Court deserves to be set aside
on the ground of lack of reasoning and for the following compelling and
substantial reasons:

i) The High Court had taken a view that PW 1 – Bhola Singh, father of
the deceased (brother of the appellant before us) had changed his version
at the time of second Chief Examination. Upon giving our anxious
consideration to the chronology of events, we find that after commencement
of the trial, the evidence of PW1 was started on 9.8.1996 and the chief-
examination was concluded on 21.8.1996. On 9.1.1997 the cross-examination
was started and further on 29.5.1997 the second Examination-in-chief was
started as some of the accused had surrendered before the Court in the
meanwhile. Second time Examination-in-chief was conducted on 29.5.1997 and
ended up on 19.06.1997. Second Cross-examination started on 17.07.1997
which was further conducted on 24.7.1997. As seen from the various dates,
the record indicates that the first chief-examination of PW 1, which
started on 09.08.1996, was concluded after completing the second cross-
examination on 24.7.1997. So, it is clear from the evidence of PW 1 itself
that the examination and cross-examination had taken place several times in
a piece-meal manner and the Court was forced to conduct the chief-
examination repeatedly because of the subsequent surrender of some of the
accused persons. While appreciating the evidence of PW1, the Courts must be
conscious of the length of time consumed in recording the evidence of the
prosecution witness. From a perusal of the evidence of PW1, the High Court
was of the opinion that there were discrepancies and deviations in the
evidence of PW1. In our considered opinion, the evidence of PW 1, who is an
eyewitness who lost three sons in the fateful incident was consistent and
there are no major deviations or discrepancies and if at all any minor
discrepancies that occurred in the evidence of PW1 might have been due to
the long gap between the date of incident and the long delay in
examination, more so, those discrepancies are not material in bringing home
the guilt of the accused, we find no reason whatsoever to disbelieve his
evidence. The statements of PW 1 are fairly corroborated by the statements
of PW 2. Hence, we are of the considered opinion that the occurrence had
taken place in front of Baithaka of PW1—Bhola Singh and he had witnessed
the said occurrence along with PW-2 Baijnath and the injured Ganga Singh.

ii) Similarly, we find no reason whatsoever to disbelieve the evidence of
PW2 (brother-in-law of PW1 Bhola Singh), another key eyewitness present at
the time of incident. A valiant attempt is also made by the defence to
discredit his evidence that he is only a chance witness and not an
eyewitness to the incident and his presence is doubtful. But, nothing has
come out in his examination-in-chief or in cross-examination which creates
a doubt on the veracity of his statement. Moreover, he has been consistent
in his version and fully supported the prosecution story. However, his
admission that at the time of panchnama, he has signed as suggested by the
Darogaji and PW1 asked him as to whose names should be written and whose
names should be left out in the panchnama, have to be seen in the context
of preparing the panchnama and shall not be attributed otherwise to
disbelieve his evidence.

iii) We are of the view that the High Court, for acquitting the
respondents, had mainly relied upon the medical evidence in a very
inappropriate manner. When the doctor (PW 7) in his examination-in-chief
had categorically stated that the incident could have occurred at 8.00 a.m.
which corroborated the case of the informant, there was no reason to
disbelieve this fact to hold that the incident occurred between 2.00 to
4.00 a.m. merely basing on a vague statement made by the Doctor in the
cross-examination. Also we believe that merely for the reason that no blunt
injuries were present on the deceased, the whole evidence of PW 1 cannot be
discarded as primacy has to be given to the ocular evidence particularly in
the case of minor discrepancies. This Court in Darbara Singh Vs. State of
Punjab, (2012) 10 SCC 476, wherein this Court has held :

“…. So far as the question of inconsistency between the medical evidence
and the ocular evidence is concerned, the law is well settled that, unless
the oral evidence available is totally irreconcilable with the medical
evidence, the oral evidence would have primacy. In the event of
contradictions between medical and ocular evidence, the ocular testimony of
a witness will have greater evidentiary value vis-à-vis medical evidence
and when medical evidence makes the oral testimony improbable, the same
becomes a relevant factor in the process of evaluation of such evidence. It
is only when the contradiction between the two is so extreme that the
medical evidence completely rules out all possibilities of the ocular
evidence being true at all, that the ocular evidence is liable to be
disbelieved.”

iv) We are also of the opinion that the place of occurrence is proved
beyond doubt in the light of evidences of PW 1 (Bhola Singh), PW 2
(Baijnath), PW 3 (Constable Ram Manohar Maurya) and PW 4 (Riyayatullah
Khan—Sub Inspector). Apart from this, the investigating officer had
recovered blood stained roll of the clay and plain clay from the place of
incident (Ext.Ka-8) and also had recovered cartridges from the place of the
incident. Even as per the forensic report human blood was found on the roll
of clay (Ext.Ka-37). The aforesaid circumstance would clearly establish
that the place of incident was the baithka of the informant and not the
village pakvainar as alleged by the defence.

v) Coming to the issue of non-examination of the injured witness Ganga
Singh, it is relevant to point out that the trial Court had appreciated the
fact that though the prosecution had made an attempt to produce Ganga
Singh, they failed to do so as he was kidnapped at the relevant period.
This stands proved by the registration of two FIRs dated 12.09.1997 and
06.10.1997 which establish the fact that Ganga Singh was threatened and
kidnapped. Therefore, non-examination of injured Ganga Singh could not be
fatal to the case of the prosecution and the same cannot be a ground to
disregard the evidence of PWs 1 & 2. Thus, no adverse inference can be
drawn against the prosecution for not examining Ganga Singh, the injured
witness [Also see : Rajan Rai v. State of Bihar, 2006(1) SCC 191].

vi) As far as the non-examination of any other independent witness is
concerned, there is no doubt that the prosecution has not been able to
produce any independent witness. But, the prosecution case cannot be
doubted on this ground alone. In these days, civilized people are generally
insensitive to come forward to give any statement in respect of any
criminal offence. Unless it is inevitable, people normally keep away from
the Court as they feel it distressing and stressful. Though this kind of
human behaviour is indeed unfortunate, but it is a normal phenomena. We
cannot ignore this handicap of the investigating agency in discharging
their duty. We cannot derail the entire case on the mere ground of absence
of independent witness as long as the evidence of the eyewitness, though
interested, is trustworthy.
vii) It has been vehemently argued by the accused/respondents that the
prosecution has failed to establish any motive for the alleged incident.
However, the complainant had deposed about existence of land dispute
between the parties and regarding the same complaints were made prior to
the incident also. The Trial Court had held that there was land dispute
between the parties and for the same the complainant had made complaints to
the police (Ext. Ka-2 and Ka-3). We concur with the view of the Trial Court
that the accused—respondents had enmity with the complainant party over a
land dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the
incident, could not be an after-thought as both the exhibits bear signature
and dates on which these were received by the police. Thus, in the light of
above discussion, it can be safely held that the accused respondents had
strong motive to commit the offence against the complainant party.

viii) The High Court, while passing the impugned judgment and order, has
failed to consider that the two respondents-accused Ramashray Singh and
Kamla Singh had not succeeded in proving their plea of alibi. It is
evident from the letter of Ministry of Defence addressed to the District &
Sessions Judge, Mau (Doc.263 Ka.) where it has been specifically mentioned
that the accused Ramashray Singh and one Virender Singh (DW-1) had been
directed to proceed to Secunderabad from Pathankot on 4.9.1994. It is
mentioned that on 6.10.1994 said Virender Singh had deposited the fused
missile and Ramashray Singh accused respondent was not present on the said
date and he presented himself at Secunderabad on 11.10.1994. As far as
accused Kamla Singh is concerned, he had taken a plea of alibi stating that
he was posted as a Hawaldar in Jammu. However, he has failed to mark any
evidence in this behalf. Also it was stated by him that he was present at
his quarter in Jammu. However, DW-4 Onkar Singh has stated that he, along
with the accused Kamla Singh, had gone to Vaishno Devi but fails to prove
the same by adducing cogent evidence. Thus, on perusal of the material on
record, we concur with the finding of the trial Court that the accused have
failed to establish their plea of alibi.

ix) We are also of the considered opinion that the reasons given by the
High Court to reverse the conviction and sentence of the accused are
flimsy, untenable and bordering on perverse appreciation of evidence.

x) The trial Court has awarded death sentence to Ramashraya Singh and
Kamla Singh. On this issue, we are not able to concur with the view taken
by the trial Court as the reasoning of the trial Court does not convince us
that this is the rarest of the rare cases which warrants the penalty of
death sentence.

22. For the aforesaid reasons, we reach to the irresistible conclusion
that these appeals deserve to be allowed and the impugned judgment and
order has to be set aside. Accordingly, we allow these appeals by setting
aside the impugned judgment and order passed by the High Court and modify
the judgment and order passed by the Trial Court by convicting all the
accused respondents to life imprisonment under Section 302/149 IPC with a
fine of Rs.10,000/-. In default, they are directed to undergo rigorous
imprisonment for six months. They are also convicted under Section 307/149
IPC and sentenced to seven years’ rigorous imprisonment and a fine of
Rs.5,000/-. In default, they shall undergo rigorous imprisonment for three
months. Conviction under Section 148 IPC is also recorded against the
accused respondents and they are sentenced to two years’ rigorous
imprisonment and a fine of Rs.1,000/-. In default, they have to undergo
three months’ rigorous imprisonment. All the sentences shall run
concurrently.

.…………………J.
(DIPAK MISRA)

…………………J.
(N.V. RAMANA)
NEW DELHI,
FEBRUARY 26, 2016

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