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