STATE OF MADHYA PRADESH versus CHHAAKKI LAL AND ANOTHER

[2018] 12 S.C.R.

STATE OF MADHYA PRADESH

CHHAAKKI LAL AND ANOTHER

(Criminal Appeal Nos.21-22 of 2011)

SEPTEMBER 26, 2018

[R. BANUMATHI AND VINEET SARAN, JJ.]

Penal Code, 1860 – s.302 – Appeal against acquittal – Caseof the prosecution that accused no.1 and 2 shot dead PW-1’sdaughter and three other relatives while they were going alongCwith PW-1 towards the fields to cut crop – Trial court held the accusedpersons guilty u/s.302 – High Court acquitted the accused persons– On appeal, held: It is the case where four people were murderedin broad day light – One of the deceased, PW-1’s grandson was achild of three years – High Court did not appreciate the evidenceDof PW-1, the sole eye witness in proper perspective and erred indisbelieving her version on the contradictions which are not material– Version of PW-1 is corroborated by the medical evidence and theevidence of ballistic expert – In an appeal against acquittal, theappellate court would not ordinarily interfere with the order ofacquittal, but where the approach of the High Court suffers fromEserious infirmity, Supreme court can reappreciate the evidence andreasonings upon which the order of acquittal is based – Judgmentof the High Court suffers from serious infirmity – Judgment of thetrial court restored – Trial court holding the case to be one of the‘rarest of rare cases’ awarded death penalty to the accused personsF– However, occurrence was of the year 2006 and moreover, theappeal against accused no.2 has abated due to his death –Considering the facts and circumstances of the case and the passageof time, award of death penalty is not warranted and imposition oflife sentence upon accused no.1 would meet the ends of justice –Evidence Act – ss.27 and 134.G

FIR – Contents of – Held: FIR is not an encyclopaedia whichis expected to contain all the minute details of the prosecution case– It may be sufficient if the broad effects of the prosecution caseare stated in the FIR.

Allowing the appeals, the Court

HELD: 1.1 It is the case where four people were murderedin the broad day light. One of the deceased was child of threeyears of age. The prosecution case revolves around the solitarytestimony of eye-witness PW-1 which was accepted by the trialcourt as trustworthy. While reversing the verdict of conviction,the High Court held that the evidence of PW-1 is fraught withinconsistencies and hence, her evidence is not reliable. Of course,there is slight improvement in the version of PW-1 before thecourt but the circumstance under which Complaint (Ex.-P1) wasrecorded has to be seen. PW-1 had lost her four kith and kin. Atthe time when Complaint was recorded, PW-1 must have beengrief-stricken and under mental trauma and she might have statedthat she heard four-five gun shots and then saw the dead bodiesof ‘GB’ (PW-1’s daughter) and ‘GS’ (son of jeth of PW-1’sdaughter) and then the accused came near ‘P’ (PW-1’sdaughter-in-law) and child ‘R’ (PW-1’s grandson) and fired at them.[Paras 10, 12 and 14] 192-A, F-G; 193-C-D]1.2 In his evidence, PW-3 stated that the dead bodies of‘GB’ and ‘GS’ were found close to each other and that dead bodiesof ‘P’ and ‘R’ were at distance of 25-30 feet away from the deadbodies of ‘GB’ and ‘GS’. In his statement, Investigating Officer(PW-13) stated that dead body of ‘P’ was at distance of aboutfifty yards from the dead bodies of ‘GB’ and ‘GS’ and that wasmentioned by him in the Site Plan (Ex.-P24). After referring tothe Site Plan, the evidence of PW-3 and PW-13-IO, the trial courtpointed out that the place where ‘P’ and ‘R’ were shot and deadbodies of ‘GB’ and ‘GS’ were found, were at short distance ofabout fifty yards. The trial court observed that since the distancewas not far away, case of the prosecution that ‘GS’, ‘GB’, ‘P’ and‘R’ were all shot by the accused in the course of the sametransaction is established by the oral evidence of PW-1 and alsoby the Site Plan. After referring to the evidence of PW-13-Investigating Officer and Site Plan, when the trial court hadrecorded that the firing of all the four deceased were in the courseof the same transaction, the High Court ought not to have doubtedthe version of PW-1 on the slight improvement made in herevidence. [Paras 17, 18] [194-D-G]

A1.3 FIR is not an encyclopaedia which is expected to containall the minute details of the prosecution case, it may be sufficientif the broad effects of the prosecution case are stated in the FIR.In this case, firing by accused no.1 at child ‘R’ was stated in theFIR and the omission of minute detail that accused no.1 jumpedon the abdomen of child ‘R’ cannot be regarded as fatal to theBprosecution case. The effect of the occurrence on the mind of anold woman like PW-1 cannot be measured in yardstick. Beinggrief-stricken because of the death of her four kith and kin, itmay not have occurred to her to narrate all the minute details ofthe occurrence. The non-mention of accused no.1 throwing theCchild ‘R’ on the ground and jumping on his abdomen due to whichthe intestine came out cannot be regarded as fatal to theprosecution case. Further, when there is proper explanation forthe delay, the prosecution case cannot be doubted on the groundthat there was delay in registration of FIR. In this case, the delayin FIR was properly explained and the same is not fatal to theDprosecution case. [Para 19, 25] [195-C-E; 198-B-C]

1.4 PW-1 was rustic villager and also aged. After seeingher own daughter and daughter in law and grandson being put todeath, she must have been under tremendous shock. She wasdeposing in the court after some time. Naturally, there are boundEto be variations from her earlier version. The trial court whichhad the opportunity to observe the demeanour of the witnessesfound that the evidence of PWs is credible and trustworthy. Whileso, the High Court ought not to have recorded finding raisingdoubts about the credibility of PW-1. Unless the appreciation ofFevidence by the trial court was vitiated by serious error, thefindings recorded by the trial court ought not to have beeninterfered by the High Court. The High Court erred in doubtingthe testimony of PW-1. It would be unreasonable to contend thatmerely because PW-1 is related to the deceased and that therewere contradictions in her evidence, her evidence has to beGdiscarded. Discrepancies which do not shake the credibility ofthe witness and the basic version of the prosecution case are tobe discarded. If the evidence of the witness as whole containsthe ring of truth, the evidence cannot be doubted.[Paras 20-22] [195-F-G; 196-A-C]

Prithu alias Prithi Chand and Another v. State ofHimachal Pradesh (2009) 11 SCC 588 : [2009] 2 SCR765 - relied on.

State of U.P. v. M.K. Anthony (1985) 1 SCC 505 –referred to.

1.5 So far as the place of occurrence is concerned, theevidence of PW-1 is amply corroborated by other evidence. It isnot the number; but the quality of the evidence that matters. Interms of Section 134 of the Evidence Act, “no particular numberof witnesses shall in any case be required for the proof of any fact”.[Para 23] 196-G; 197-A]

Prithipal Singh and Others v. State of Punjab andAnother(2012) 1 SCC 10 – relied on.

Sudip Kumar Sen alias Biltu v. State of West Bengaland Others(2016) 3 SCC 26 – referred to.

1.6 The opinion of the Ballistic expert that the fired kartooswas fired by 0.315 bore katta/desi pistol (Ex.-A4) recovered fromaccused no.1 and the opinion that live kartoos (Ex.-EB1 and EB2)were fired from 12 bore gun (Ex.-A3) recovered from accusedno.2 amply proves the involvement of the complicity of theaccused in the occurrence thereby corroborating the evidenceof PW-1. [Para 27] [199-G-H]

2. In an appeal against acquittal, the appellate court wouldnot ordinarily interfere with the order of acquittal. But wherethe approach of the High Court suffers from serious infirmity,this court can reappreciate the evidence and reasonings uponwhich the order of acquittal is based. miscarriage of justicewhich may arise from the acquittal of the guilty is no less thanfrom the conviction of the innocent. The High Court erred indoubting the version of PW-1, the sole eye witness whoseevidence is corroborated by the medical evidence and theevidence of ballistic expert. The High Court did not appreciatethe evidence of PW-1 in proper perspective and erred indisbelieving her version on the contradictions which are notmaterial. Where the evidence has not been properly analysed orthe High court has acted on surmises and findings of the impugned

Ajudgment is unreasonable, it is the duty of the appellate court toset right the wrong. The order of acquittal by the High courtcannot be sustained and the judgment of the trial court is to berestored. [Paras 35, 36] [202-B-D; E, F]

3. After convicting the accused persons under Section 302BIPC, the trial court held that the case would be one of the ‘rarestof rare cases’ and awarded death penalty. The occurrence was ofthe year 2006 and moreover, the appeal against accused no.2 hasbeen abated due to his passing away. Therefore, considering thefacts and circumstances of the case and the passage of time,awarding of death penalty is not warranted and imposing sentenceCof life imprisonment upon the respondent/accused no.1 wouldmeet the ends of justice. The accused no.1 is sentenced toundergo imprisonment for life. [Paras 37, 38] [202-F-G; 203-B]

Nankaunoo v. State of Uttar Pradesh (2016) 3 SCC317 : [2016] 4 SCR 627 ; V.K. Mishra and Another v.DState of Uttarakhand and Another (2015) 9 SCC 588 :[2015] 8 SCR 1 – relied on.

Case Law Reference

From the Judgment and Order dated 13.08.2008 of the High CourtGof Judicature of Madhya Pradesh at Gwalior in Criminal AppealNo. 254 of 2008 and Criminal Death Reference No. 2 of 2008

WITH

Criminal Appeal Nos.23-24 of 2011.

Ms. Bansuri Swarj, Ms. Swarupama Chaturvedi, B. N. Dubey,Ms. Devika Gulati, Ms. Vaishali Verma Rahul Chitnis, Aaditya A. Pande,Chander Shekhar Ashri, P. K. Sharma, Uday Prakash Yadav, SujitKumar Jha, Ramjee Pandey, Pradeep Kumar Dubey, Advs. for theappearing parties.

The Judgment of the Court was delivered by

R. BANUMATHI, J. 1. These appeals arise out of the judgmentof the High court of Madhya Pradesh in Criminal Death ReferenceNo.2 of 2008 in and by which the High Court has allowed the appealfiled by the respondents-accused thereby acquitting the respondents-accused under Section 302 IPC and setting aside the death penaltyawarded to the respondents/accused and his son accused Akhilesh bythe trial court.

2. During the pendency of these appeals, respondent No.2-Akhilesh had died and by the order dated 28.02.2017, the appeal againstrespondent No.2 was dismissed as abated.

3. Briefly stated case of the prosecution is that on 20.02.2006 atabout 12.00-12.30 p.m., Kesar Bai (PW-1), her daughter-in-law deceasedPhoolwati and grandson Rinku aged three years were going towards thefield to cut the mustard crop. Deceased Ganeshi Bai who was thedaughter of Kesar Bai (PW-1) and deceased Ganga Singh who was theson of the jeth of Ganeshi Bai were little ahead to them. As soon asKesar Bai reached near Madhawala Danda on the public way, she heardthe sound of four to five gun-shots fired and saw the accused firing atGanga Singh and Ganeshi Bai. Thereafter, accused Chhaakki Lal andhis son Akhilesh carrying the guns came towards them from the frontside. Chhaakki Lal told Kesar Bai (PW-1) that they have already killedher daughter, Ganeshi Bai and Ganga Singh and now the turn is hers.Chhaakki Lal-accused No.1 then fired at Phoolwati in her abdomen, thesecond fire was fired by Akhilesh-accused No.2 at Rinku. Then accused-Chhaakki Lal jumped on the child Rinku due to which the intestines ofRinku tossed out because of the impact and as result, he died on thespot. Kesar Bai (PW-1) challenged the accused persons and said ‘whatare you waiting for, kill me now’. Chhaakki Lal is said to have repliedthat he would not kill her as she will die automatically after looking atthese incidents. Complaint - Dehati Nalishi (Ex. P-1) was recorded on20.02.2006 and after initial investigation, FIR was registered under Section

A302 IPC read with Section 34 IPC and Sections 25, 27, 29 and 30 of theArms Act against both the accused persons (Ex. P-25-26).

4. Dr. S.K. Singh Niranjan (PW-6) conducted post-mortem onthe dead bodies of all the four deceased namely Phoolwati, Rinku Singh,Ganeshi Bai and Ganga Singh and noted the injuries and issuedBpost-mortem certificates. Accused Chhaakki Lal and Akhilesh werearrested on 26.02.2006. Based on the disclosure statement of ChhaakkiLal-accused No.1, katta had been seized vide seizure memoEx. P-20. Based on the disclosure statement of Akhilesh-accused No.2,a 12 bore gun along with two live cartridges of 12 bore was seized fromAkhilesh. Also gun licence of accused-Chhaakki Lal had been seizedCfrom Akhilesh vide seizure memo Ex. P-21. According to the FSL reports(Exts. P-31, P-32 and P-33), the fired kartoos Ex.EC-1 to Ex.EC-4 hadbeen fired by pistol Ex. A-4, the two live kartoos Ex. LR-1 and LR-2could be fired by 12 bore gun/bandook (Ex. A-3), Exs. EB-1 and EB-2was fired by rifle weapon. Ex.-EB-3 can be part of Ex.-EB-2.

5. To bring home the guilt of the accused, prosecution has examinedPW-1 to PW-13 and exhibited number of documents. The accused werequestioned under Section 313 Cr.P.C. about the incriminating evidenceand circumstances and the accused denied all of them. Accused in theirdefence stated that deceased Ganga Singh was person of criminalEcharacter who was also in collusion with dacoits and engaged in theftand snatching. The accused persons have stated that due to previousenmity, they have been falsely implicated. Upon consideration ofevidence of Kesar Bai (PW-1) and other evidence adduced by theprosecution, the trial court held accused Nos.1 and 2 guilty under Section302 IPC read with Section 34 IPC. The trial court held that the caseFwould come under the category of ‘rarest of rare cases’ and awardeddeath penalty to both the accused persons apart from imposing fine ofRs.5,000/- each. In appeal, the High court allowed the appeal preferredby the accused. The High Court found that the evidence of sole eyewitness Kesar Bai (PW-1) is not reliable and that the same is full ofGcontradictions and omissions. The High Court held that Kesar Bai (PW-1) is not reliable witness and on those findings reversed the verdict ofconviction and acquitted the accused persons.

6. Heard learned counsel for the State of Madhya Pradesh andlearned counsel for the respondents/accused. Learned counsel for the

State of Madhya Pradesh submitted that the evidence of Kesar Bai(PW-1) was credible and acceptable and the same was supported byother evidence and circumstances and the High Court erred in disbelievingthe evidence of Kesar Bai (PW-1). It was further contended that thedelay in sending the weapons for examination to Forensic ScienceLaboratory on 19.04.2006 which were recovered on 01.03.2006 was amistake/omission on the part of B.L. Dhanele - Investigating Officer(PW-13) and the benefit of such omission cannot be given to the accused.It was urged that the High court was wrong in believing the story of thedefence to the effect that all the four deceased were killed by the dacoitsas the deceased Ganga Singh had illegal relations with the dacoits andthe High court has failed to see that the story of the defence was withoutany basis.

7. Contention of the respondent/accused is that Kesar Bai(PW-1) is not an honest and trustworthy witness because there are lotof improvements on important aspects in her court depositions on vitalaspects. Assailing the evidence of Kesar Bai (PW-1), the learned counselinter alia made the following submissions:-

· In her court deposition, Kesar Bai (PW-1) claimed that she hadwitnessed the murder of Ganga Singh and Ganeshi Bai whereasin the police complaint, she stated that she heard four to five gunshots and thereafter when she reached there, she saw therespondents/accused Chhaakki Lal and Akhilesh proceedingtowards them;

· Improved version of Kesar Bai (PW-1) as to the overt actattributed to Chhaakki Lal that he threw Rinku on the ground andjumped upon his abdomen region as result of which hisintestines came out did not find place in the FIR.

8. The learned counsel appearing for the respondents-accusedsubmitted that the evidence of sole witness Kesar Bai (PW-1) could nothave formed the basis for conviction and the High Court has rightlydiscarded the evidence of Kesar Bai (PW-1) and has rightly set asidethe conviction and acquitted the accused.

9. We have carefully considered the rival contentions and perusedthe impugned judgment, evidence and materials placed on record. Thepoint falling for consideration is whether the High court was right in

Areversing the verdict of conviction of the respondents-accused andacquitting them from the charges under Section 302 IPC.

10. It is the case where four people were murdered in the broadday light. One of the deceased - Rinku was child of three years of age.Case of the prosecution is based upon the sole testimony of Kesar BaiB(PW-1). In her evidence, Kesar Bai (PW-1) has stated that Ganga Singhand Ganeshi Bai had gone ahead for cutting the neem tree and that she(PW-1), her daughter-in-law Phoolwati and grandson Rinku werefollowing them. Kesar Bai (PW-1) stated that when they reached atMadhawala Danda, Ganga Singh was at distance of 10-15 feet andthat she saw accused Chhaakki Lal and Akhilesh firing gun-shot at GangaCSingh and thereafter firing gun-shot at Ganeshi Bai. Then accused-Chhaakki Lal and Akhilesh came towards Phoolwati and Chhaakki Lalfired the bullet in the abdomen of Phoolwati. Akhilesh also fired atPhoolwati. Akhilesh fired at Rinku and Chhaakki Lal had thrown Rinkuon the ground. Chhaakki Lal also fired at Rinku. Chhaakki Lal climbedDover Rinku and jumped, due to which, his intestines came out. WhenKesar Bai (PW-1) told them to kill her also by firing, Chhaakki Lal repliedthat they would not kill her and that she had to see all these things andthen she would die automatically.

11. Thakurdas (PW-2) who is Village Chowkidar stated that heEhad heard about the incident from Kesar Bai (PW-1) and gone to theplace of the incident and saw the dead bodies of Ganga Singh, GaneshiBai, Phoolwati and Rinku. Thakurdas (PW-2) stated that when hereached the village, Kesar Bai (PW-1) was weeping and she told himthat Chhaakki Lal and his son Akhilesh had committed all the four murderswhen they were going towards the field.F

12. The prosecution case revolves around the solitary testimonyof eye-witness Kesar Bai (PW-1) which was accepted by the trial courtas trustworthy. While reversing the verdict of conviction, the High Courtheld that the evidence of Kesar Bai (PW-1) is fraught with inconsistenciesand hence, her evidence is not reliable. The High court pointed out thatGthe evidence of Kesar Bai (PW-1) is exaggerated and that accused-Chhaakki Lal fired at Rinku is totally missing in her statement (Ex.-P1).The High Court also pointed out further inconsistencies.

13. In her evidence before the court, Kesar Bai (PW-1) statedthat when she and her daughter-in-law Phoolwati and grandson RinkuH

reached near Madhawala Danda, other deceased persons namelyGaneshi Bai and Ganga Singh were only ten paces away from them andthat she saw both the accused firing at Ganga Singh and Ganeshi Baiand thereafter the accused came towards her. In Dehati Nalishi-complaint(Ex.-P1), Kesar Bai (PW-1) stated that she heard four-five gun shotsand then saw the accused coming towards her telling that they havekilled Ganeshi Bai and Ganga Singh and then fired at Phoolwati andchild Rinku. The High Court held that in the version of Kesar Bai(PW-1) before the court, there is material improvement and that theevidence of Kesar Bai (PW-1) is not reliable.

14. Of course, there is slight improvement in the version ofKesar Bai (PW-1) before the court but the circumstance under whichDehati Nalishi-complaint (Ex.-P1) was recorded has to be seen. KesarBai (PW-1) has lost her four kith and kin. At the time when DehatiNalishi-complaint (Ex.-P1) was recorded, Kesar Bai (PW-1) must havebeen grief-stricken and under mental trauma and she might have statedthat she heard four-five gun shots and then saw the dead bodies ofGanga Singh and Ganeshi Bai and then the accused came near Phoolwatiand child Rinku and fired at them.15. Learned counsel for the respondent/accused submitted that inher cross-examination, Kesar Bai (PW-1) stated about one assailantKailash and also named in Dehati Nalishi and the said Kailash wasdetained by the police for one or two days after the incident but later letoff by the police because of the pressure. It was submitted that mentionof another assailant Kailash by Kesar Bai (PW-1) raises serious doubtsabout the prosecution case. Ex.-P1-Dehati Nalishi was an earliest onelodged on the date of incident on 20.02.2006 at 05.15 pm. Name ofKailash is not mentioned in Ex.-P1-Dehati Nalishi. FIR (Ex.-P25-26)also does not contain the name of alleged assailant Kailash. Since nameof Kailash was not mentioned either in the Dehati Nalishi or FIR, theanswers elicited from Kesar Bai (PW-1) in the cross-examinationregarding Kailash does not affect her credibility. It is also pertinent topoint out that in her cross-examination, though Kesar Bai (PW-1) hadstated that Kailash was taken to police custody after two to three daysof complaint, Kesar Bai (PW-1) stated that she cannot say that whetherpolice had taken Kailash to custody in connection with her case or othercase.

EFG

A16. Though much arguments are advanced regarding the allegedinvolvement of Kailash and that he was taken to custody, the entireargument advanced qua one Kailash is based upon certain answerselicited from Kesar Bai (PW-1). The Investigating Officer has alsodenied that he has brought Kailash and one Ardaman and kept them incustody for 4-5 days. He has also denied that based on the statement ofBKesar Bai (PW-1), he kept their guns. Investigating Officer has deniedthat he released both Kailash and Ardaman due to some pressure andfalsely involved respondents/accused. Investigating Officer has alsodenied that Kesar Bai (PW-1) had told him that Kailash and Ardamanhad done the incident through dacoits. Investigating Officer has alsoCdenied that Kesar Bai (PW-1) had named Kailash and Ardaman in herstatement and the same was not written by him. In the light of categoricaldenial by the investigation, there is no merit in the contention of therespondent/accused as to the alleged involvement of Kailash.

17. In his evidence, Ram Naresh (PW-3) stated that the deadDbodies of Ganeshi Bai and Ganga Singh were found close to each otherand that dead bodies of Phoolwati and Rinku were at distance of25-30 feet away from the dead bodies of Ganeshi Bai and Ganga Singh.In his statement, B.L. Dhanele - Investigating Officer (PW-13) has statedthat dead body of Phoolwati was at distance of about fifty yards from

the dead bodies of Ganeshi Bai and Ganga Singh and that has beenEmentioned by him in the Site Plan (Ex.-P24).

18. After referring to the Site Plan (Ex.-P24) and the evidence ofRam Naresh (PW-3) and PW-13-IO, the trial court pointed out that theplace where Phoolwati and Rinku were shot and dead bodies of GaneshiBai and Ganga Singh were found, were at short distance of about fiftyFyards. The trial court observed that since the distance was not faraway, case of the prosecution that Ganga Singh, Ganeshi Bai, Phoolwatiand Rinku were all shot by the accused in the course of the sametransaction is established by the oral evidence of Kesar Bai (PW-1) andalso by the Site Plan (Ex.-P24). After referring to the evidence ofGPW-13-Investigating Officer and Site Plan (Ex.-P24), when the trialcourt has recorded that the firing of all the four deceased were in thecourse of the same transaction, the High Court ought not to have doubtedthe version of Kesar Bai (PW-1) on the slight improvement made in herevidence. For the sake of arguments, even assuming that PW-1 could

not have seen the firing at Ganeshi Bai and Ganga Singh, her evidence isto be accepted to the extent of the occurrence of firing at deceasedPhoolwati and child Rinku. In her statement Kesar Bai (PW-1) hasstated that after gun shot fired at deceased Rinku, accused-ChhaakkiLal threw the child Rinku on the ground and also jumped on his abdomen,as result of which intestines came out. The learned counsel for therespondents-accused submitted that Chhaakki Lal jumping on theabdomen of the child Rinku was not mentioned in Dehati Nalishi (Ex.P.1)and FIR and this material omission suggests that Kesar Bai (PW-1)exaggerated her version about throwing of child Rinku on the floor andjumping on his abdominal region.

19. FIR is not an encyclopaedia which is expected to contain allthe minute details of the prosecution case, it may be sufficient if thebroad effects of the prosecution case are stated in the FIR. In this case,firing by accused-Chhaakki Lal at child Rinku was stated in the FIR andthe omission of minute detail that Chhaakki Lal jumped on the abdomenof child Rinku cannot be regarded as fatal to the prosecution case. Asdiscussed earlier, the effect of the occurrence on the mind of an oldwoman like Kesar Bai (PW-1) cannot be measured in yardstick. Beinggrief-stricken because of the death of her four kith and kin, it may nothave occurred to Kesar Bai (PW-1) to narrate all the minute details ofthe occurrence. The non-mention of accused-Chhaakki Lal throwingthe child Rinku on the ground and jumping on his abdomen due to whichthe intestine came out cannot be regarded as fatal to the prosecutioncase.

20. The High Court acquitted the accused merely on the groundthat the evidence of Kesar Bai (PW-1) is fraught with contradictions.Kesar Bai (PW-1) was rustic villager and also aged. After seeing herown daughter and daughter in law and grandson being put to death, shemust have been under tremendous shock. Kesar Bai (PW-1) wasdeposing in the court after some time. Naturally, there are bound to bevariations from her earlier version. The trial court which had theopportunity to observe the demeanour of the witnesses found that theevidence of PWs is credible and trustworthy. While so, the High Courtought not to have recorded finding raising doubts about the credibilityof Kesar Bai (PW-1).

A21. The trial court had the opportunity of seeing and observing thedemeanour of the witnesses and the views of the trial court as to thecredibility of the witnesses is entitled to great weight. Unless theappreciation of evidence by the trial court was vitiated by serious error,the findings recorded by the trial court ought not to have been interferedby the High Court.B

22. In our considered view, the High court erred in doubting thetestimony of Kesar Bai (PW-1). It would be unreasonable to contendthat merely because Kesar Bai (PW-1) is related to the deceased andthat there were contradictions in her evidence, her evidence has to bediscarded. Discrepancies which do not shake the credibility of the witnessCand the basic version of the prosecution case are to be discarded. If theevidence of the witness as whole contains the ring of truth, the evidencecannot be doubted. In Prithu alias Prithi Chand and Another v. Stateof Himachal Pradesh (2009) 11 SCC 588, it was held as under:-“14. In Bharwada Bhoginbhai Hirjibhai v. State of GujaratD(1983) 3 SCC 217, it was observed that undue importance shouldnot be attached to omissions, contradictions and discrepancieswhich do not go to the root of the matter and shake the basicversion of the prosecution witnesses. witness cannot beexpected to possess photographic memory and to recall theEdetails of an incident verbatim. Ordinarily, it so happens that awitness is overtaken by events. witness could not haveanticipated the occurrence which very often has an element ofsurprise. The mental faculties cannot, therefore, be expected tobe attuned to absorb all the details. Thus, minor discrepancieswere bound to occur in the statement of witnesses.”FThe same principle was reiterated in State of U.P. v. M.K. Anthony(1985) 1 SCC 505.

23. The High court proceeded on the footing that the evidence ofKesar Bai (PW-1) being the solitary witness is not reliable to base theGconviction unless corroborated in material particulars. As discussed above,so far as the place of occurrence is concerned, the evidence of PW-1 isamply corroborated by other evidence. It is fairly well settled that it isnot the number; but the quality of the evidence that matters. In terms ofSection 134 of the Evidence Act, “no particular number of witnesses

shall in any case be required for the proof of any fact”. The testwhether the evidence has ring of truth is cogent and trustworthy. InPrithipal Singh and Others v. State of Punjab and Another (2012) 1SCC 10, it was held as under:-

“49. This court has consistently held that as general rule thecourt can and may act on the testimony of single witness providedhe is wholly reliable. There is no legal impediment in convicting aperson on the sole testimony of single witness. That is the logicof Section 134 of the Evidence Act. But if there are doubts aboutthe testimony, the court will insist on corroboration. In fact, it isnot the number or the quantity, but the quality that is material. Thetime-honoured principle is that evidence has to be weighed andnot counted. The test is whether the evidence has ring of truth,is cogent, credible and trustworthy or otherwise. The legal systemhas laid emphasis on value, weight and quality of evidence, ratherthan on quantity, multiplicity or plurality of witnesses. It is, therefore,open to competent court to fully and completely rely on solitarywitness and record conviction. Conversely, it may acquit theaccused in spite of testimony of several witnesses if it is notsatisfied about the quality of evidence.”

The same principle was reiterated in Sudip Kumar Sen aliasBiltu v. State of West Bengal and others (2016) 3 SCC 26.

24. The version of the prosecution was doubted by the High Courton the ground that FIR was registered after much delay. As per DehatiNalishi-complaint (Ex.-P1), time of incident was at about12.00-12.30 pm on 20.02.2006 and Dehati Nalishi-complaint (Ex.-P1)was written at 05.15 pm on the same day. PW-13-IO stated that on20.02.2006, he was on duty at Health Mela in Senwdha and on receiptof information from SDO Smt. Rekha Singh, he reached the place ofoccurrence and wrote Dehati Nalishi-complaint (Ex.-P1). After theinquest and the preliminary investigation like preparation of spot map,seizure etc. on 20.02.2006, FIR was registered on 21.02.2006 at about02.00 pm. Ramveer (PW-8), son of Kesar Bai (PW-1) was not presentin the village and that he had gone to see his sister. When all the familymembers of PW-1 were killed and her son Ramveer (PW-8) away fromthe village, it cannot be accepted from Kesar Bai (PW-1) seventy

Ayears old rural woman to leave the dead bodies of family members atthe spot and go to the police station situated at distance of ten kilometresto lodge the complaint. As pointed out by the trial court, the delay inregistration of FIR has been properly explained.

25. Delay in setting the law in motion by lodging the complaint orBregistration of FIR is normally viewed by courts with suspicion becausethere is possibility of concoction of the case against the accused. Butwhen there is proper explanation for the delay, the prosecution casecannot be doubted on the ground that there was delay in registration ofFIR. In this case, the delay in FIR has been properly explained and thesame is not fatal to the prosecution case.C

26. The High Court referred to the evidence of Mewalal (PW-11)who in his cross-examination has stated that he saw PW-1 weeping at08.00-09.00 am and that PW-1 told him that accused persons have killedGanga Singh, Ganeshi Bai, Phoolwati and Rinku. Be it noted that Mewalal(PW-11) in his chief-examination stated that at about 12.00-12.30 pm,Dwhen he was present at his home in village Ruhera, he heard the firingsound of five-six gun shots and that PW-1, mother-in-law of Phoolwatipassed from the passage crying and saying that the accused ChhaakkiLal and Akhilesh had committed the murder of her daughter-in-lawPhoolwati, her grandson Rinku, Ganeshi Bai and Ganga Singh inEMandawali Dang. Resiling from his version in the chief-examination, incross-examination, PW-11 stated that at about 08.00-09.00 am, when hewas in his house, PW-1 came to his house saying that accused ChhaakkiLal and Akhilesh have committed murder of her daughter-in-lawPhoolwati, her grandson Rinku, Ganeshi Bai and Ganga Singh. Thelearned counsel appearing on behalf of the respondent/accused submittedFthat the prosecution has not treated PW-11 hostile and the statement ofPW-11 in his cross-examination throws serious doubts about the timeand the manner of occurrence. Of course, PW-11 was not treated hostile;but his prevaricating version stood in the cross-examination neither affectshis version in the chief-examination nor does it affect the prosecutionGcase. The High court was not right in doubting the prosecution case andthe trustworthiness of Kesar Bai (PW-1) based on the evidence of aninfirm witness like PW-11.

27. The accused were arrested on 26.02.2006 and on the basis ofthe disclosure statement recorded under Section 27 of the EvidenceHAct, on 01.03.2006, one 0.315 bore katta/desi pistol (Ex.-A4) was seized

at the instance of accused Chhaakki Lal vide seizure memo Ex.-P20.One 12 bore gun (Ex.-A3) along with two live cartridges (Ex.-EB1 andEB2) and gun licence of accused Chhaakki Lal have been seizedunder seizure memo Ex.-P21 from accused Akhilesh. One petal khokaof 0.315 bore (Ex.-P8) was recovered from the dead body of Phoolwati.Two fired cartridges of 0.315 bore (Ex.-P7) were found near the deadbodies of deceased Ganeshi Bai and Ganga Singh respectively. InEx.-P32 and Ex.-P33, the Ballistic expert opined that the fired kartoos(Ex.-EC1 to EC4) have been fired from 0.315 bore katta/desi pistol(Ex.-A4). Likewise, in Ex.-P32 and Ex.-P33, the Ballistic expert opinedthat the two live kartoos (Ex.-LR1 and LR2) could have been firedfrom 12 bore gun (Ex.-A3). The opinion of the Ballistic expert tallyingwith the arms recovered from the accused is seen from the following:-

The opinion of the Ballistic expert that the fired kartoos has beenfired by 0.315 bore katta/desi pistol (Ex.-A4) recovered from accusedChhaakki Lal and the opinion that live kartoos (Ex.-EB1 and EB2) werefired from 12 bore gun (Ex.-A3) recovered from accused Akhilesh amplyproves the involvement of the complicity of the accused in the occurrencethereby corroborating the evidence of PW-1.

A28. As pointed out earlier, country made pistol of 315 bore wasrecovered from Chhaakki Lal on 01.03.2006 (seizure memo Ex.-P20)and 12 bore gun was recovered from Akhilesh (Ex.-P21). Contentionof the learned counsel for the respondent is that Ex.-P20 refers torecovery of 315 bore katta whereas the FSL report (Ex.-P32) speaksabout the examination of country made pistol of 0.315 bore. FurtherBcontention of the respondent/accused is that it has not been explained asto how country made pistol of 315 bore has been transformed into 0.315bore during FSL report (Ex.-P32).

29. Of course, in Ex.-P20, it is stated that 315 bore katta wasrecovered from Chhaakki Lal and the same is also mentioned in theCsanction order under the Arms Act (Ex.-P14). No doubt, in FSL report(Ex.-P32), the gun which was examined by the ballistic expert is statedas 0.315 bore katta. There seems to be no variation in the pistol whichwas seized by the police and the one that was examined by the ballisticexpert. The difference seems to be only in the description of 315 boreDkatta and 0.315 bore katta. Investigating Officer who seized theweapon and the one who wrote Ex.-P20 are not ballistic experts and areonly laymen in so far as the examination of guns/pistol. Any slight variationin the description of katta recovered from Chhaakki Lal does not makeit different katta from the one which was examined by the ballisticexpert (0.315 bore katta).E

30. Contention of the respondent/accused is that the FSL Reportdoes not say anything about the use of rifle by any of the assailants. Itwas submitted that EB-1 and EB-2 cannot be fired by country madepistol of 0.315 bore or gun of 12 bore and that EB-1 and EB-2 musthave been fired from some other big size gun. It was submitted thatFKesar Bai (PW-1) has named one Kailash in her cross-examination thatthe said Kailash was kept in custody for about four to six days and thepossibility that the gun recovered from Kailash was planted on ChhaakkiLal cannot be ruled out. It was further submitted that country madepistol examined by the FSL must have been recovered only from KailashGand the discrepancies between the recovery and the FSL report has notbeen properly explained.

31. It appears that there is no 315 bore gun but only 0.315 boregun. The description given by the police that the recovered gun fromChhaakki Lal was 315 bore gun is only mistaken description.

32. Investigating Officer has stated that Kesar Bai (PW-1) told inher statement recorded by him that the accused used big guns. KesarBai (PW-1) being rustic village woman may not have been in positionto give proper description of the gun; the accused cannot take advantageof the answers elicited from Kesar Bai (PW-1) that “the accused personswere holding big size gun” as it was only manner of description by arustic villager like Kesar Bai (PW-1). The contention of the respondentsthat only “big sized gun” stated by Kesar Bai (PW-1) could have beenthe gun of Kailash who was taken to custody by the police along with hisgun and later released. This contention does not merit acceptance.Investigation Officer has categorically denied that the big guns were ofKailash and Ardaman. Investigating Officer has also denied that becauseof pressure he did not implicate Kailash and Ardaman and falselyimplicated the accused.33. For reversing the verdict of conviction, the High Court haspointed out that there was delay in sending the seized gun and pistol(recovered on 01.03.2006) which was sent to the FSL only on 19.04.2006.The High Court has doubted the case of prosecution by observing thatapart from delay in sending the seized guns/pistol, there is no materialshowing as to where the seized weapons were kept during the periodfrom 01.03.2006 to 19.04.2006. Such delay in sending the recoveredweapons to FSL could only be an omission or lapse on the part of theInvestigating Officer. Such omissions or lapses in the investigation cannotbe ground to discard the prosecution case which is otherwise credibleand cogent. InNankaunoo v. State of Uttar Pradesh (2016) 3 SCC317, it was held as under:-

“9. ……Any omission on the part of the investigating officer cannotgo against the prosecution case. Story of the prosecution is to beexamined dehors such omission by the investigating agency.Otherwise, it would shake the confidence of the people not merelyin the law enforcing agency but also in the administration ofjustice”.

34. In V.K. Mishra and Another v. State of Uttarakhand andAnother (2015) 9 SCC 588, it was held as under:-

“38. The investigating officer is not obliged to anticipate all possibledefences and investigate in that angle. In any event, any omissionon the part of the investigating officer cannot go against the

202SUPREME COURT REPORTS

Aprosecution. Interest of justice demands that such acts or omissionof the investigating officer should not be taken in favour of theaccused or otherwise it would amount to placing premium uponsuch omissions”.

35. We are conscious that in an appeal against acquittal, theBappellate court would not ordinarily interfere with the order of acquittal.But where the approach of the High Court suffers from serious infirmity,this court can reappreciate the evidence and reasonings upon which theorder of acquittal is based. miscarriage of justice which may arisefrom the acquittal of the guilty is no less than from the conviction of theinnocent. Upon reappreciation of the evidence and the reasonings ofCthe trial court and the High Court, in our considered view, the judgmentof the High Court suffers from serious infirmity. The High Court erredin doubting the version of PW-1-the sole eye witness whose evidence iscorroborated by the medical evidence and the evidence of ballistic expert.The High Court did not appreciate the evidence of PW-1 in properDperspective and erred in disbelieving her version on the contradictionswhich are not material. The High court erred in rejecting the credibleevidence of Kesar Bai (PW-1), which in our considered view resulted inserious miscarriage of justice, where four persons were murdered.

36. Where the evidence has not been properly analysed or theEHigh court has acted on surmises and findings of the impugned judgmentis unreasonable, it is the duty of the appellate court to set right the wrong.In the instant case, the High court has ignored the credible evidence ofKesar Bai (PW-1) and unnecessarily laid emphasis on the minorcontradictions and omissions. However, the order of acquittal by theHigh court cannot be sustained and the judgment of the trial court is toFbe restored.

37. After convicting the accused Chhaakki Lal and Akhilesh underSection 302 IPC, the trial court held that the case would be one of the‘rarest of rare cases’ and awarded death penalty. The occurrence wasof the year 2006 and moreover, the appeal against second accused –GAkhilesh has been abated due to his passing away. Therefore, consideringthe facts and circumstances of the case and the passage of time, we areof the view that awarding of death penalty is not warranted and imposingsentence of life imprisonment upon the respondents/accused ChhaakkiLal would meet the ends of justice.

38. In the result, the impugned judgment is set aside and theseappeals are allowed. The judgment of the trial court convicting therespondent/accused Chhaakki Lal under Section 302 IPC is restoredand the respondent/accused is sentenced to undergo imprisonment forlife. The respondent/accused Chhaakki Lal shall surrender himselfforthwith within week to serve the remaining sentence failing whichhe shall be taken into custody.

Divya Pandey

Appeals allowed.