STATE OF HARYANA versus KRISHAN

[2008] 15 S.C.R. ~Si

ST ATE OF HARYANA

II. KRIS HAN

(Criminal Appeal No. 915 of 2003)

NOVEMBER 7, 2008

[DR. ARIJIT PASAYAT AND C.K.THAKKER, JJ.)

Penal Code 1860- s. 302 - Conviction under - Acquittal by High Court - On the ground that ii/aqua Magistrate, received FIR after Jong delay; and ocular evidence at variance with medial evidence - Interference with - Held: Not . called for - Cumulative effect of factors highlighted by High Court made prosecution case unreliable - Evidence.

Code of Criminal Procedure, 1973 - s.386 - Appeal [D ]

against acquittal - Interference with - Scope of - Explained.

According the prosecution case, the appellant

caused lathi blow on the head of the deceased resulting . in his death. Trial court convicted the appellant u/s 302 IPC and imposed rigorous imprisonment for 1 O years. High Court set aside the conviction and acquitted the appellant on the ground that illaqua Magistrate received FIR after long delay; and that the ocular evidence was at variance with medical evidence. Hence the present appeal.

Dismissing the appeal, the Court

HELD: 1.1 There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strength~ned by acquittal. The golden thread which runs through the web 951

of administration of justice in criminal cases is that if two views are possible on the evidence adduced· in the case, one p_ointing to the guilt of the accused and the other to his innocence; the view which is favourable to the · accused should be adopted. The paramount consideration of justice is prevented. of the .court .· .. miscarriage i.s to ensure that miscarriage I of . justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In case where admissible : evidence ·.is ignored, .a duty is cast upon the appellate court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are substantial reasons for 0 doing so. If the impugned judgment is clearly ·unreasonable and irrelevant and convincing materials have been unjustifiably eliminated in the process, it is substantial reason for interference. [Para 5] [956-E-~; 957-A, B] .

1.2 Though some of the factors highlighted by. the

High Court may not create dent in the prosecution . version but the cumulative effect certainly casts shadow upon the credibility of the prosecution version. The view taken is possible view. Therefore, no interference is called for. [Para 6] [957-E]

Bhagwan Singh v. State of M.P. 2003 (3) SCC 21; Shivaji

Sahabrao Bobade v. State of Maharashtra 1973 (2) SCC 793; Ramesh Babula/ Doshi· v. State of Gujarat 1996 (9) SCC 225; Jaswant Singh v. State of Haryana 2000 (4) SCC 484; Raj Kishore Jha v. State of Bihar 2003 (11) SCC 519; State of Punjab v. Kamai/ Singh 2003 (11) SCC 271; State of Punjab v. Pho/a Singh 2003 (11) SCC 58; Suchand Pal v, Phani Pal 2003 (11) SCC 527; Sachchey Lal Tiwari v. State of UP. 2004 (11) sec 410, relied on.

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 915 of 2003.

From the final Judgment and Order dated 15.1.2003 of the High Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 374-SB-1989.

Rajeev Gaur 'Naseem' and T.V. George for the Appellant.

Rishi Malhotra and Prem Malhotra for the Respondent.

The Judgment of the Court was delivered by

DR. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to the judgment of learned Single Judge of the Punjab and Haryana High Court holding that the respondent deserves to be acquitted and the judgment of conviction and sentence as recorded by learned Additional Sessions Judge, Bhiwani is not correct. It is to be noted that learned Sessions Judge had found

the respondent guilty of offence punishable under Section 304 of the Indian Penal Code, 1860 (in short the 'IPC') and was sentenced him to rigorous imprisonment for 10 years and.fine with default stipulation. However the two co"".accused persons Jai Bhagwan and Anant Ram were acquitted.

2. Background facts as projected by the prosecution are as follows:

On 22.3.1989, it was PHAG festival. PW-4 Sher Singh, [brother ][of ][Nafe Singh (PW-3) had gone to the Bazar for playing ]PHAG. However, Nafe Singh (PW-3) and his father Chandgi Ram (hereinafter referred to as the 'deceased') remained at the house.

Naresh Kumar, nephew of Nafe Singh, visited them at about 3 pm and informed that Sher Singh (PW 4) had been beaten by carpenters of their village. On receipt of this information, PW-3 Nafe Singh alongwith his father Chandgi Ram went towards the houses of carpenters. His father was · ahead of him, while he was following him. When they reached near the shop ofJai Singh, then he started talking with Jai Singh while Chandgi Ram went ahead. Chandgi enquired from the· carpent~rs about the whereabouts of Sher Singh, PW-4,·upon which carpenters lost temper. Anant Ram and Jai Bhagwan, accused (now acquitted) caught hold of Chandgi Ram from his arms while Krishan, appellant, inflicted Lathi blow, on the head of Chandgi Ram. On. receipt of the Lathi blow, he fell down and the appellant alongwith co-accused ran away. The occurrence was witnessed by Nafe Singh and Jai Singh.

In the meantime, Harish also appeared. Chandgi was put into tempo and was taken to civil hospital, Dadri, where he was admitted and was medico-legally examined. The police reached the hospital. Nafe Singh made statement, Ex.PL, to lnder Singh Saini, Sub Inspector (PW-5) which was signed after

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admitting the same to be correct. lnder Singh Saini (PW-5) made endorsement Ex.PU1 and sent it to the police station for registration of the case, on the basis of which formal FIR, Ex.PU 2 was recorded by Dalip Singh, Sub Inspector.

lnder Singh Saini SI (PW-5), then went to the place of occurrence but none was found there and he stayed in the village. On the next day i.e. on 23.3.1989, he called Chowkidar and Jai Singh also came there and on the pointing out of Jai Singh, he took blood stained earth from the spot after making it into sealed parcel vide memo Ex.PM attested by the witnesses. He also recorded the statement of Sher Singh (PW-4) who had come there and sent him for his medico-legal examination to Civil Hospital Dadri.At about 8 a.m., he received Ruqa through constable Ram Pal, informing him about the death of Chandgi and then he converted the offence into 302 IPC. He went to Civil Hospital, Dadri, and prepared inquest report, Ex.PG, and got conducted postmortem on the dead body of Chandgi. Head constable Parkash Chand handed over one packet to him, which he took into possession vide Memo Ex.PM. He recorded the statements of the witnesses. He apprehended the appellant and his two companions on 27.3.1989. He interrogated the appellant and in pursuance of his disclosure statement, Ex.PQ, recovered Lathi, Ex.P3, which was made into sealed parcel and was taken into possession. Before taking into possession, he prepared rough sketch of the Lathi, Ex.PS and also site plan of the place of recovery, Ex. PT.

As the accused persons pleaded innocence, trial was held. Prosecution examined six witnesses. One Jai Singh was given up as he was supposed to won over. The trial court placed [G ]reliance on the evidence of PW 3 and directed conviction as recorded above.

In appeal the High Court found that there were several factors which made the prosecution version unreliable. It was

Anoted that the First Information Report was purportedly lodgedon 22.3.1989 but the same was received by the Illaqa-magistrate after long time i.e. on 24.3.1989 though the courtof the Illaqa magistrate was situated at less than half akilometer. Additionally the number of injuries as stated.by theBso Called eye witness, PW3 was at great variance with themedical evidence. It also noted that the medical examinationconducted at 3.30 P.M. by Dr. M.M. Sharma, PW 1 showed thatthe injuries were caused within duration of 6 to 12 hours. His__. Specific evidence was that the deceased could have receivedcthe injuries at about 10 AM on 22.3.1989 and he had notreceived injuries within six hours. According to the prosecutionversion the occurrence took place at 3.30 PM and the medicolegal examination was done at 5.30 pm.

D3. Learned counsel for the appellant State submitted thatthe factors highlighted by the High Court to direct acquittal have-nofoundation..a

_ 4,Learned counsel for the respondent counsel for the respondent for the respondent the respondent respondent on the other handsupported the judgment of the High Court.

4,Learned counsel for the respondent counsel for the respondent for the respondent the respondent respondent on the other hand

5. There is no embargo on the appellate court reviewing

_ the evidence upon which an order of acquittal is based.Generally, the order of acquittal shall not be interfered withbecause the presumption of innocence of the accused is further$trengthened by acquittal. The golden thread which runs throughthe web of administration of justicein criminal cases is that iftwo views are possible on the evidence adduced in the case,one pointing to the guilt of the accused and the other to hisinnocence, the view which is favourable to the accused shouldbe adopted. The paramount consideration of the court is toensure that miscarriage ofjustice is prevented. miscarriageof justice which may arise from acquittal of the guilty is no lessthan from the conviction of an innocent. In case whereadmissible evidence is ignored, duty is cast upon theappellate court to re-appreciate the evidence where theaccused has been acquitted, for the purpose of ascertaining

as to whether any of the accused really committed any offence

or not. (See Bhagwan Singh v. State of M.P, 2003 (3) SCC 21). The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are substantial reasons for doing so. \f the impugned judgment is clearly unreasonable and irrelevant and convincing materials have been unjustifiably eliminated in the process, it is substantial reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793), Ramesh Babula/ Doshi v. State of Gujarat (1996 (9) SCC 225), Jaswant Singh v. State of Haryana (2000 (4) SCC 484), Raj Kishore <Jha v. State of Bihar (2003 ( 11) SCC 519), State of Punjab v. Kamai/ Singh (2003 (1'1) SCC 271), State of Punjab v. Pho/a Singh (2003 (11) SCC ·58), Suchand Pal v. Phani Pal (2003 ( 11) SCC 527) and Sachchey Lal Tiwari v. State of U.P. (2004 (11) sec 410).

6. Though some of the factors highlighted by the High Court may not create dent in the prosecution version but the cumulative effect certainly casts shadow upon the credibility of the prosecution version. The view taken is possible view. Therefore no interference is called for.

7. Appeal is dismissed.