STATE OF UTTARAKHAND versus DARSHAN SINGH

[2019] 14 S.C.R.

STATE OF UTTARAKHAND

DARSHAN SINGH

(Criminal Appeal No. 1856 of 2013)

NOVEMBER 07, 2019

[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]

Penal Code, 1860 – ss.147, 148, 149 and 302 – Murder –Acquittal of accused by the High Court – Prosecution case was thatCPW-1, his father, mother and maternal uncle-PW-4 were going on atractor and PW-2 was following them on cycle – Father of PW-1was driving the tractor, when they found that bullock cart hadblocked their passage – The tractor stopped near the bullock cart– The accused persons, who were hiding, armed with pistols andother sharp-edged weapons attacked father of PW-1 – ConsequentDto which, father of PW-1 died – FIR was lodged u/ss. 147, 148, 149and 302 IPC – The Trial Court convicted accused persons u/s.302r/w. ss.148 and 149 IPC – However, High Court acquitted theaccused – On appeal, held: There were material variations in theevidence of PW-1 and PW-2 – There were contradictions in theEevidence of PW-1 and PW-2 as to who wrote the report in the policestation – PW-1 stated that he, his mother, maternal uncle and one‘IS’ went to the police station and report was written by ‘IS’ – Therewas no mention of PW-2 by PW-1, however, PW-2 stated that he hadalso gone to the police station and stated in his cross-examinationFthat report was written by PW-1 – PW-4, one of the witness, turnedhostile – PW-1, his mother, PW-4 and PW-2 after the incident didnot rush to the hospital with the victim and post-mortem reportrevealed that the body reached the hospital next day in the afternoon– These aspects strengthened the judgment of the High Court –Another contradiction came from the testimony of PW-2, who statedGthat one of the accused fired the shot from behind after climbing inthe tractor which had struck at the back of deceased whereas PW-1 deposed that all the accused stood at front and all three had firedthe shot – The gunshot injury no.4 at the back of deceased remainedunexplained – Further, no role was attributed to the two accused

persons, however, when evidence opened PW-1 had gone on toattribute specific overt act to them also – PW-2 had also stated thathe and other relatives had left the tractor at spot and had not takenit to the police station to lodge the report as the dead body was onit – On the other hand, according to PW-5-investigating officer, thesite of the dead body was the paddy field – Considering the apparentvariations in the evidence, the appellant was not able to make out acase to interfere with the judgment of the High Court – Resultantly,appeals were dismissed.

Law of Evidence – Medical and ocular evidence – discussed.

Dismissing the appeals, the Court

HELD: 1. The incident allegedly unfolded when thedeceased along with PW1, his wife, and brother-in-law (PW4) werecoming back in tractor. The case of the prosecution further isthat the accused came forward and committed the acts attributedto them. There is an allegation that some relatives accompanyingthe deceased were sitting on the mudguard of the tractor. Thereis case for the prosecution that the deceased fell from the tractorwhen PW1 was asked how he went to the Police Station to lodgethe report and whether he had taken the tractor, his answer wasthat since the body of his father was lying on it, they did not takethe tractor and they went on foot. Therefore, it must be takenthat the body was on the tractor. PW5-the Investigating Officer,on the other hand, deposed that the dead body of the deceasedwas lying in the paddy field at the side of the road. PW5-originalInvestigating Officer does not speak word about the tractor.According to PW1, the tractor was left behind as the dead bodywas lying on it. As noted, PW5 speaks otherwise and the deadbody was found at the paddy field at the side of the road. Whether,therefore, the tractor was in fact used as claimed by theprosecution? There is no evidence regarding any investigationconducted by the Officer in regard to the tractor. The nature andsize of the tractor remains mystery. [Para 42][363-D-H]

2. There are contradictions in the evidence of PWs 1 and 2as to who wrote the report. Did PW1 himself write the report as

Aclaimed by PW2 in his cross-examination or was it written by‘IS’, who according to PW1 wrote the report? There arecontradictory answers given by PWs 1 and 2. [Para 43][364-A]

3. If the incident had happened, as projected by theprosecution, and PW1, his mother and PW4 were accompanyingBthe deceased apart from PW2 and other cyclists, would they notimmediately rush the body to the nearest hospital? In fact, fromthe post-mortem report, it would appear that the body reachedthe hospital only next day in the afternoon. These aspects createdoubts in our minds and strengthens the judgment of the HighCourt further. [Para 45][364-E-F]C

4. The doubt arises about the prosecution version from theoral testimony itself. As noticed already, PW1 is alreadyunambiguous when he states that all the accused came at frontand all the three had fired the shots. The firing, PW1 was specific,was done from the front. He claims that other people climbed onDthe tractor. This can mean that the people who had not done thefiring and who were otherwise armed according to his version,climbed on the tractor. In his earlier version, in the chiefexamination, he, on the other hand, states that when his fatherfell down, the accused armed with pistols and the other sharpEedged weapons assaulted his father. This itself manifests acontradiction. [Para 47][364-H; 365-A-B]

5. The real contradiction comes in the form of testimony ofPW2. PW2 states that one of the accused ‘R’ fired the shot frombehind after climbing in tractor which had struck at the back ofFdeceased whereas PW1 has deposed that all the accused camestood at front and all the three had fired the shot. This is aninconsistency which goes to the root of the matter. If the aboveversion of PW1 is believed, it is the deposition of PW2 whichcomes under cloud. More importantly, injury no.4, viz., thegunshot injury at the back remains unexplained. For this, thisGCourt does not have to go into the contents of the medicalevidence. It is not doubt true that that the medical evidence alsopoints to the injury no.4 being sustained by the deceased on hisback side. [Para 49][365-E-F]

6. It is to be noted that in the FIR, ‘R’ is stated to havefired the shot which struck at the back of the deceased. No rolehas been attributed in the FIR to the two accused persons whereaswhen the evidence opened, PW1 has gone on to attribute specificovert acts to them also. While FIR is not to be an encyclopaediaof all that transpired, the omission to mention about actual overtacts to the specific two accused, creates serious doubt about theversion. Further, PW2 also stated that they had left the tractor atthe spot and had not taken it to the Police Station to lodge thereport as the dead body was on it. On the other hand, the site ofthe dead body is the paddy filed, according to PW5. The tractoris not referred to by PW5. [Paras 50 and 51][366-C-E]

7. As regards the deceased falling down on being shot atand assaulted, PW5 would state that PW1 did not tell him anything(apparently, in the 161 statement about the fact of the deceasedfalling down).[Para 52][366-F]

8. In the state of evidence, in this case otherwise, asdiscussed, particularly bearing in mind the nature of the limitedjurisdiction this Court exercises qua the order of acquittalrendered by the High Court, the appellant has not made out acase in interfering with the impugned judgment of the High Court.[Para 57][367-G]

The State Government, Madhya Pradesh v. Ram KrishnaGanpatrao Limsey and others AIR 1954 SC 20; Stateof Uttar Pradesh v. Guru Charan and others (2010) 3SCC 721 : [2010] 2 SCR 1110 – relied on.

Gosu Jayrami Reddy and another v. State of AndhraPradesh (2011) 11 SCC 766 : [2011] 9 SCR 503;Mangoo v. State of Madhya Pradesh AIR 1995 SC 959;Abdul Sayeed v. State of Madhya Pradesh (2010) 10SCC 259 : [2010] 13 SCR 311; Tehseen Poonawalla v.Union of India and another (2018) 10 SCC 498 : [2018]12 SCR 204 – referred to.

Case Law Reference

[2011] 9 SCR 503AIR 1995 SC 959

BCRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1856 of 2013.

From the Judgment and Order dated 02.01.2012 of the High Courtof Uttarakhand at Nainital in Criminal Appeal No. 175 of 2002.

With

Criminal Appeal No. 1857 of 2013.

Krishnam Mishra, Kamlendra Mishra, Rahul Kaushik, Advs. forthe Appellant.

Ms. N. Annapoorani, Adv. for the Respondent.D

The Judgment of the Court was delivered by

K. M. JOSEPH, J.

1. Since these appeals involve the same impugned judgment ofthe High Court acquitting the respondents of offences under SectionE147, 148, 149 and 302 of the Indian Penal Code, 1860 (hereinafter referredto as ‘the IPC’, for short), we deem it fit to dispose of the same by acommon judgment.

PROSECUTION CASE IN BRIEF

2. The complaint in this case, which led to the trial, was lodged byFone Swarn Singh-PW1. The complaint in brief is as follows:

On 22.08.1992, when he, along with his father, mother andmaternal uncle, were going on tractor from Nanakmatta to theirvillage and his father was driving the tractor, when the tractorreached one kilometre from their house, they found that bullockGcart has blocked their passage. The tractor stopped near the bullockcart. One of the accused-Pahalwan Singh appeared. The otheraccused, along with him, were hiding near tree. He was havinga sword in his hand. Resham Singh, who is the third respondent inCriminal Appeal No. 1857 of 2013, had country-made pistol inHhis hands. Daleep Singh had ballam (a sharp edged weapon),

his son Jagir Singh carried country-made pistol. Darshan Singhalso had country-made pistol. Veer Singh was having sharp-edged weapon (campa). They started hurling abuses on the familyof the complainant. Resham Singh fired with his country-madepistol. Pahalwan Singh and Darshan Singh fired with their country-made pistol, and Veer Singh Singh with his campa, inflicted blowson the complainant’s father-Singhara Singh. He fell from the tractorand died. On raising alarm, all the accused fled away on the bullockcart. The complainant, his father and maternal uncle did not dareto fight the assailants.

3. The First Information Report (FIR) came to be lodged underSections 147, 148, 149 and 302 of the IPC. The Trial Court framedcharges under Sections 147, 148, 302 read with 149 of the IPC. Separatecharges were also framed under Section 25 of the Arms Act,1959(hereinafter referred to as ‘the Arms Act’, for short). PWs 1 to 6 wereexamined from the side of the prosecution. Statements of the accusedwere taken under Section 313 of the Code of Criminal Procedure, 1973(hereinafter referred to as ‘the Cr.PC.’, for short).

4. The Trial Court convicted Pahalwan Singh, Resham Singh,Daleep Singh, Veer Singh and Darshan Singh for offences under Sections302 read with 148 and 149 of the IPC. Resham Singh and DarshanSingh were acquitted of the charge under Section 25 of the Arms Act.

5. The High Court, by the impugned order, has acquitted theaccused. The judgment reveals that the following aspects weighed withthe High Court in its decision to acquit the accused:

i.There were material variations in the evidence of PWs 1and 2.

ii.PW2 was not non-partisan witness. He is distantly relatedto the informant.

iii.PW4 is none other than maternal uncle referred to by thecomplainant as having travelled along with him on theGtractor. He has turned hostile and has not supported theprosecution version.

iv.The case of the prosecution that after the firing and theinflicting the wound injuries on the deceased, the accusedfled away in the bullock cart, could not be believed.

Av.PW1 deposed that the lights of the tractor were on. PW2,on the other hand, deposed that the bulb of the tractor wasoff.

vi.Injury no.4 was gunshot wound on the left side of theback of the deceased.B

vii.According to prosecution evidence, accused blocked theway of the tractor and accused fired while standing in frontof the tractor. There was material inconsistency betweenocular and medical evidence in this regard.

viii.It is noticed by the High Court that PW3-Doctor, in hisCevidence, does not support the case of the prosecution.

ix.The High Court noticed, according to the prosecutionevidence, that the deceased was driving the tractor and hisclose relatives, viz., his wife, the complainant, who has beenexamined as PW1, and maternal uncle, were travelling alongDwith the accused. However, none of the relatives, who weresitting on the tractor and on the mudguard, have sufferedany injuries. This also persuaded the High Court to acquitthe accused.

6. We have heard the learned counsel appearing for the State/Eappellant and the learned counsel appearing for the accused/respondents,in both the appeals.

7. The learned counsel for the State has pointed out that respondentno. 2, in Criminal Appeal No. 1857 of 2013, has passed away and wehave also taken note of the same in our order dated 28.08.2019 that theFappeal stands abated as against him.

8. The learned counsel for the State would contend as follows:

(i)There was no actual inconsistency in the ocular evidenceof PW1 and medical evidence. He has maintained thataccused-Resham Singh has fired shot which hit theGdeceased at the back.

(ii)Merely on account of minor contradictions in the statementof PW1 and medical evidence depicting the injuries, HighCourt ought not have interfered in the matter, having regardto the nature of the injuries inflicted, the recovery of the

weapons and the conclusion in the FSL Report, which fullycorroborates the case of the prosecution.

(iii)PW1-son of the deceased was only 17 years of age at thetime of the incident. The court may bear in mind that this isa case where accused ambushed them and carried deadlyweapons hurling threats. Meticulous narrative of theincident, in such circumstances, may not be insisted upon.He relied upon judgment of this Court in Gosu JayramiReddy and anotherv. State of Andhra Pradesh1 and Mangoov. State of Madhya Pradesh2.

(iv)At the place of the incident., an empty cartridge of 12-borepistol was recovered by the Investigating Officer. Arecovery was effected from the accused on the basis ofstatement by the accused including the 12- bore pistol. FSLReport states that the shot has been fired from the 12-borepistol which was recovered. The High Court has not foundthe recovery to be vitiated. This means that recovery canbe acted upon.

(v)There is no material for the inconsistency between theevidence of PWs 1 and 2. The only variation is that PW2has deposed that Resham Singh has climbed up to the tractorand fired the shot which caused injury no.4 on the back ofthe body of the deceased. In this regard, he relied uponjudgment of this Court in Abdul Sayeedv. State of MadhyaPradesh3 to contend if there is inconsistency between ocularand medical evidence, ocular evidence must prevail unlessmedical or scientific evidence completely renders impossibleaction upon ocular testimony.

(vi)The statement of PW1 that the shots were fired from 5-7steps from near the bullock cart, was also explained, asfound by the Trial Court, by holding that PW1 was describingthe distance between the place of the bullock cart and theplace of the shot fired.

1 (2011) 11 SCC 766

2 AIR 1995 SC 959

3 (2010) 10 SCC 259

A(vii)The FIR was lodged within three hours on 22.08.1992 itself.The incident took place at 05.30 P.M.. The promptness,with which the FIR was lodged, was not given the dueimportance.

(viii) Lastly, the reasoning of the High Court that none of theBrelatives suffered injuries, is attacked on the basis that whenthe incident unfolded with the accused coming out with thearmed weapons, it would be unnatural to expect that hisrelatives would have remained glued to their position. Thefact that the relatives were unhurt is consistent with theirnormal behaviour when faced with assailants armed withCdeadly weapons, hurling threats and firing.

9. Per contra, learned counsel for the accused would submitthat the incident is of the year 1992. She supports the order of the HighCourt. Learned counsel for the accused/respondents would submit that:

a. There were four persons travelling on the tractor and only thedeceased is seen injured.

b. There is no motive established.

c. There was no connection with the ocular and medical evidence.

d. She reminds the Court that the accused have been acquittedEunder the Arms Act, 1959.

10. Before we discuss the evidence, we think it appropriate torefer to the injuries actually suffered by the deceased. PW3 is the Doctor.The following are the injuries noted by PW3, which are noted as antemortem injuries besides his evidence inter alia:F

“External Examination:-

One middle-aged person, upon dead body R.M. staining was presentand upon his body stiffness was there stomach was swollen andleft eye was not there. Upon the body of deceased. During bodyGexamination following pre death injuries were found:-

(1) Cut wound 15 cm x 2 cm in the upper part of dead and deadbone was broken.

(2) Cut wound 16 cm x 2 cm left side of the face which wasextended from behind the ear to face. Due to that larbon ofHear and bone of mandible jaw had been broken.

(3) Cut wound 3 cm x 2 cm at right side of the face, in whichbone of right jaw had been broken.

(4) Gunshot wound entry 3 cm x 2.5 cm at left side of back 6 cmfrom shoulder bone towards lower side. Upon putting pronein that was coming toward upper side and front side. Uponcutting the bone one tikle of plate was found blacking totemwas present. No scorching was there.

(5) Gunshot wound of entry on right side of chest which hadfractured the color bone and rib. Upon proning it was goingto backside and lower side.

(6) Cut wound 3 cm x ½ cm right side of chest in the side ofnipple.

External Examination

(1) Scull bone was broken brain membrane was torn. In the chestthird and fourth rib and fifth. Towards left and first. Secondof right side was broken. Both the lungs were torn, heart alsowas torn. 16/15 teeth in the mouth were there. There was nofood in the stomach.

In my opinion death of the deceased was caused because ofshock due to pre-death injuries and excessive bleeding. Atthe time of examination, Examination report was preparedby me, which is in my handwriting and signature. It was beforeme on the file. Upon this Ex. Ka 3 was put.

During body examination 2 tikle card board and 34 pallet hadremoved which were sealed and was handed over toconcerned constable and clothes of deceased shirt, tahmad,underwear, kada, kripall. Total 5 piece and police documentsand dead body was handed over to police people.

Above injuries are possible to be caused with sword, pistol,spear and sharp weapon on 22.8.92 at 5:30 PM in the evening.

The detail of possible symptom of post-death is given abovein the column in postmortem report, 12 hrs difference in periodof death, then said, six hour difference can be, that is, deathis possible to be also in the night of 22.8.92. The shirt ofdeceased was cut or not, he does not remember. The injury

ANo. 5 can be caused in such condition when striking personassault by standing in height. The injury No. 4 is from downto up side, i.e. Striking person fire the short from down sideupon injured, then above both injuries can be caused by firingfrom the distance of 3 feet. The above injuries are of totaltwo fire. Deceased would have taken the food before 8 hours,Bbecause in his stomach no contents were found. After 8 hrsof having food, food is digested.”

11. It was found that the skull bone was broken, brain membranewas torn. In the chest, third and fourth rib and fifth. Towards left andsecond of right side was broken. Both the lungs were torn. Heart alsoCwas torn. 16/15 teeth in the mouth were there. There was no food in thestomach. He says further that in his opinion, death was caused becauseof shock due to pre-death injuries and excessive bleeding.

12. perusal of the description of the injuries would show thatinjuries 4-5 were gunshot injuries. The other four injuries were cutDwounds.

13. This is case of direct evidence.

14. PW1, 17-year old son of the deceased, has deposed, interalia, as follows:

He along with his father (deceased), mother and maternaluncle were travelling in tractor with his deceased father drivingit. bullock cart was there on the road which was parked in thecentre. This cause them to stop the tractor. Resham Singh, DarshanSingh, Jagir Singh with pistols in their hands and the other accusedwith other deadly weapons, appeared. PW1 further says thatResham Singh fired the shot from the pistol which struck the backof his father and he fell down from the tractor. At that time, PW2and one Gurdeep Singh were coming on cycles behind their tractor.When the deceased fell down, then, Pahalwan Singh with sword,Darshan Singh and Jagir Singh with pistol, Veer Singh and DaleepSingh with other deadly weapons, assaulted his father. Being emptyhanded, as they were not having any arms, they could not savehis father. PW1 says that he knew the accused because theywere their neighbours. There was enmity between the deceasedand the accused acted due to not getting the road constructed andhaving passage.

In the cross-examination, he, inter alia, states as follows:

He has stated in the complaint that after firing shot byResham Singh and falling down of his father, the other accusedhad fired and assaulted. He gave same statement to the Darogaji.He has no explanation for the statement not being in the FIR.PW2 is married to his father’s sister. He lives about 2 to 2½kilometres away from his village. Gurdeep Singh lives 10 to 12kilometres away from his village. He is alive. After half quarter toone hour, Police came to the spot of incident. That it was quarterto nine. Police filled-up Panchnama at the spot which was filled inthe night. Panchnama was filled in the torch light. The Panchnamawas filled-up and PWs 1 and 2 are the witnesses to thePanchnama. Three of the two accused were arrested on the nextday. They were Daleep Singh, Jagir Singh and Darshan Singh.They went to the Police Station on cycles. Ishwar Singh, PreetamSingh (PW4-maternal uncle) and the mother of the PW1,accompanied him. Ishwar Singh is the resident of village Kisanpurwhich is 7 kilometres further from his village. For lodging thereport, he went to Nanakmatta Police Station. They were comingfrom Nanakmatta. From their itself, they went back to lodge thereport. Ishwar Singh was standing in the way at the house ofmaternal uncle in village Sunkari which is village adjacent to theroad. Ishwar Singh went to the Police Station with him. IshwarSingh lodged the report at the Police Station. He and his motherand maternal uncle had told Ishwar Singh about the incident. Houseof the accused and their house, are located nearby. Suggestionthat they had made three other persons flee from the village andhad taken possession of their land, due to which there was enmity,was denied. There was no other tree except semal tree on thespot. Bushes are there on both sides of the road. The Semal treeis on the eastern side of the road. They took one hour in coming toNanakmatta from the village. PW1 was sitting on the right side inthe tractor. PW4-maternal uncle and father of PW1 were sittingon the left side of the tractor. There were no rains at that time.The bullock cart was empty. They had stopped the tractor at thedistance of 4-5 steps. The light of the tractor was burning. All theaccused came, stood at front and all the three had fired the shot.Firing was done from the front.The other people climbed upon

Athe seat of the tractor itself, assault was done with sword, spear,etc.. His father had fallen down at the seat of the tractor itself.Accused ran away. The shots were fired from the distance of 5-7 steps near to the bullock cart. The Darogaji had seen the bloodon tractor at the spot. The assaults with the sword, spear andBsabre were done one to two times. They had not taken the tractorto the Police Station because the dead body was lying on it.

15. PW2, who was referred to by PW1 as one of the personswho were following them on cycle, corroborates PW1 that the deceasedwas driving the tractor, and along with him, PW1, his mother and maternalCuncle were sitting. He deposes about the bullock cart. The tractor stopped.The threat by the accused who came out, is referred to. The firing byResham Singh at the back of the deceased, and Darshan Singh andJagir Singh, firing the shots from the front, and the others assaulting aredeposed to. He claims to have gone along with PW1 to lodge the report.The report was got written from Ishwar Singh. He has told the names ofDthe accused at the time of the filling of the Panchnama. He earlier saysthat on the day of the incident, at the spot also, Police did the inquiryafter filling the Panchnama. At that time, Police did not enquire with himabout the incident. He denies as incorrect that the name and the addressof the accused was not known till the filling of the Panchnama, and it isEon account of that, that the name of the accused is absent in thePanchnama. PW1 and his parents had not met him at Nanakmatta onthe day of the incident. PW4-maternal uncle also had not met. Tractorlight was not burning. All the accused were standing behind the bullockcart, when they saw. There is tree also nearby. After giving threat,firing started. They were standing near in front of tractor. Resham SinghFhad fired the shot from behind after climbing in tractor which had struckat the back of the deceased. Firing was done thrice. Daleep Singhattacked with spear. Jagir Singh attacked with spear from front in thestomach. Veer Singh attacked with sabre from behind on the head. Therewere no bushes on both sides but crop was there. Accused had struckGone-one time with sword, sabre and spear. Swarn Singh-PW1, his motherand PW4 had gone on foot to lodged the report. He had also gone withthem on foot holding the cycle. Four people went. The report was writtensitting at the Police Station. PW1 had written the report. PW1 is educated.Police had remained at the spot till 08.00 A.M. in the morning. It did notHrain on that day.

16. PW4 is the maternal uncle. He, in chief examination, statedthat at 05.30 P.M., he was at home on 22.08.1992. He had not seen anyincident. In cross by prosecution, he would say that PW1 went to lodgethe report in the morning. He also came to know in the morning that thedeceased had died. PW1, Veera Kaur-mother of PW1 and GurdeepSingh, all came to know about the incident in the morning and had gonenear the dead body in the field and thereafter gone to file the report.

17. PW5 is the Sub-Inspector of Police. During investigation, hedeposes that he had taken the statement of PW1. He deposes about therecovery statement by Darshan Singh which leads to the recovery ofthe pistol. Likewise, on the statement of Pahalwan Singh, the swordwas recovered. Case under Section 25 of the Arms Act was registeredat 1930 hours against Darshan Singh on 23.08.1992. On 28.08.1992,Resham Singh, Daleep Singh, Jagir Singh and Veer Singh were arrestedat 08.05 P.M. in the night. He speaks about the recovery of the 12-borepistol on the statement of Resham Singh, one spear on the statement ofDaleep Singh and one sabre on the statement of Veer Singh. Therecovered goods were sealed separately. Case was registered againstResham Singh under Section 25 of the Arms Act, 1959. He prepared thesite map which was produced as Ka-18. He states that he had reachedthe place of incident in the night of 22.08.1992 and due to dark, thePanchnama of the body could not be done on the same day. Theinvestigation was done by PW5 till 28.08.1992. Thereafter, it was handedover to one Davendra Singh. In cross-examination, he would say asfollows:

No serial number is there upon any pistol. Pistol withoutopening cannot be closed. Another pistol open with rust is there.Barrell is not getting opened. At this time, both the pistols are notin working condition. He does not remember as to after how manydays of recovery, the pistols and empty cartridges were sent toAnalyzer. It was sent on 25.11.1992 by Special Messenger throughthe Munsif Magistrate Khateena which was received on28.11.1992. He is neither Ballastic Expert or did he have anyspecial training in this regard.

In Ka 6, in “Death” column, time of death has not beenmentioned. Time of dispatch of body from “Police Headquarters”,is not recorded.

A18. He had filled-up the Panchnama on the next day in the morning.When he had reached there, due to insufficient light on the spot,Panchnama could not be filled at that night. The dead body was lying inthe paddy field at the side of the road. On eastern side of the road,semal tree is there. Neither the ox and the bullock cart were found andtaken into possession.B

19. PW6 is Devendra Singh who carried on the investigation asper orders of the Magistrate dated 11.09.1992. He prepared Site Map-Ka 19. PW6 continued with the investigation, and in cross-examination,he states as follows inter alia:

C“The statement of Shri Kamal Ram Arya, S.I. and S.O.Nanakmatta was taken on 7.10.92. I had taken the statements ofwitnesses Pratap Singh on 7.10.92. Witnesses Veera Kaur, PratapSingh, Preetam Singh, Harnam Singh and Munsha Singh had nottold me the number of the tractor. Veera Kaur had deposed methat Resham Singh had fired upon my husband, who was sittingDon the tractor and Pahalwan Singh had assaulted with sword, dueto that her husband fell down from the tractor. Same way PratapSingh also had given the statement.”

20. It may be true that evidence regarding the statement in Section161 Cr.PC is permissible only as contemplated in Setion 162 of the Cr.PCEand Section 145 of the Indian Evidence Act, 1872. What is relevant isthe fact that the mother of PW1 who is the wife of the deceased and,more importantly, who was allegedly travelling in the tractor, was themost important witness and she was not examined.

21. This is case where the Trial Court convicted the accusedFand the High Court has, in appeal filed by the accused, acquitted them.This appeal is generated by special leave. What are the contours of thejurisdiction of this Court in this matter? We would only refer to twojudgments of this Court in this regard.

22. In The State Government, Madhya Pradeshv. Ram KrishnaGGanpatrao Limsey and others4, this is what this Court, inter alia, held:

“5. … The exercise of this extraordinary jurisdiction is not justifiablein criminal cases unless exceptional or special circumstances areshown to exist or that substantial and grave injustice has been

H4 AIR 1954 SC 20

done. In the case of an order of acquittal where the presumptionof the innocence of an accused person is reinforced by an orderof acquittal of High Court, the exercise of this jurisdiction wouldnot be justified for merely correcting errors of fact or law. Anoccasion for interference with an acquittal order may arise,however, where High Court acts perversely or otherwiseimproperly or has been deceived by fraud.”

23. In State of Uttar Pradeshv. Guru Charan and others5, wenoticed the following discussion at paragraphs 41 to 43:

“41. In Banne case [(2009) 4 SCC 271: (2009) 2 SCC (Cri)260], the settled legal position which has been crystallised in anumber of judgments has been reconsidered and reiterated. Theprinciples emerging are restated in the following words: (SCC p.286, paras 27-28)

“27. The following principles emerge from theaforementioned cases:

1. The appellate court may review the evidence in appealsagainst acquittal under Sections 378 and 386 of the CriminalProcedure Code, 1973. Its power of reviewing evidence is wideand the appellate court can reappreciate the entire evidence onrecord. It can review the trial court’s conclusion with respect toboth facts and law.

2. The accused is presumed to be innocent until provedguilty. The accused possessed this presumption when he wasbefore the trial court. The High Court’s acquittal bolsters thepresumption that he is innocent.

3. There must also be substantial and compelling reasonsfor reversing an order of acquittal.

This Court would be justified in interfering with the judgment ofacquittal of the High Court only when there are very substantialand compelling reasons to discard the High Court’s decision.

28. Following are some of the circumstances in whichperhaps this Court would be justified in interfering with thejudgment of the High Court, but these are illustrative not exhaustive:

(i) The High Court’s decision is based on totally erroneousview of law by ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidenceand documents on record;

(iii) The entire approach of the High Court in dealing withthe evidence was patently illegal leading to grave miscarriage ofjustice;

(iv) The High Court’s judgment is manifestly unjust andunreasonable based on erroneous law and facts on the record ofthe case;

(v) This Court must always give proper weight andconsideration to the findings of the High Court;

(vi) This Court would be extremely reluctant in interferingwith case when both the Sessions Court and the High Courthave recorded an order of acquittal.”

42. We may also notice here the observations made by this Courtin State of U.P. v. Harihar Bux Singh [(1975) 3 SCC 167 : 1974 SCC(Cri) 799] with regard to the scope of interference by this Court underArticle 136 of the Constitution. It is observed as follows: (SCC p. 170,para 14)E

“14. In an appeal under Article 136 of the Constitution, this Courtdoes not interfere with the finding of acquittal recorded by theHigh Court unless that finding is vitiated by some glaring infirmityin the appraisement of evidence. The fact that another view couldalso have been taken on the evidence on record would not justifyFinterference with the judgment of acquittal.The judgment of theHigh Court in the present case has not been shown to suffer fromany such weakness as might induce us to interfere. The appealconsequently fails and is dismissed.”

43. The same view has been reiterated by this Court in State ofU.P. v. Gopi [1980 Supp SCC 160 : 1979 SCC (Cri) 630] wherein it isobserved as follows: (SCC p. 161, para 2)

“2. … There may be something to be said for this view of theHigh Court and, if we were sitting as court of appeal, we mayhave taken different view and may have accepted the statements

of PWs 4 and 6.But that is no reason to set aside the judgment ofthe High Court for after consideration of the various aspects ofthe case it cannot be said that the view taken by the High Courtwas not reasonably possible.”

(Emphasis supplied)

24. Having set out the boundaries of this Court’s jurisdiction in thematter, let us examine what weighed with the High Court.

25. In the first place, it is stated that there were material variationsin the evidence of PWs 1 and 2. As to what these variations are, theyhave not been culled out in the judgment. We, however, find the followingaspects:

a. PW1 has stated that after half quarter to one hour, Policemenhave come to the place of incident. Police had filled thePanchnama at the spot which was filled in the night. ThePanchnama was filled in the torch light. PW2, on the otherhand, says that Panchnama of the dead body was done on thenext day in the morning. PW5-the Police Inspector, who didthe Panchnama, has stated that on 23.08.1992 (next day), atthe place of incidence, after filling the Panchnama of the deadbody recorded and after reading, got the signatures of thePanches done. He further reiterates this when he says that hehad reached the place of incidence in the night of 22.08.1992,and due to dark, the Panchnama of body could not be done onthe same day. Sub-Inspector and PAC were posted forsecurity of the dead body.

b. PW1 says that he had got report written of the incident fromIshwar Singh and gave to the Police Station. Ishwar Singhwent to the Police Station with him. He wrote the report at thePolice Station. PW1, his mother and maternal uncle had told toIshwar Singh about the incident. PW2, on the other hand, wouldsay that along with PW1, he also went to lodge the report. Healso said that PW1 got the report written from Ishwar Singhand gave it to the Police Station. In cross-examination, however,he stated that PW1, his mother and maternal uncle had goneon foot to lodge the report. PW2 had also gone with him onfoot holding the cycle. Four people had gone. PW1, no doubt,does not appear to refer to PW2 as having accompanied him

DEFG

Ato the Police Station. PW2 further says that the report hadbeen written sitting at the Police Station. More importantly, hedeposed that PW1 had written the report and that PW1 iseducated. As can be noticed, according to PW1, the reportwas got written through Ishwar Singh. PW2 also, in hisexamination, has given the same version but in cross-Bexamination, as noticed, he states that the report was writtenby PW1.

c. According to PW1, the light of the tractor was burning.According to PW2, bulbs were, however, off.

Cd. According to PW1, there were bushes on both sides of theroad. PW2, however, deposes that there were no bushes nearbyof road but crop was there.

e. PW1 deposed that they went to the Police Station on cycles.However, PW2 has deposed that PW1, his mother and PW4Dhad gone on foot to lodge the report and that PW2 had gonewith them on foot holding the cycle.

f. Coming to the most important aspect of the matter, viz., as theactual unfolding of the incident, PW1 has stated that ReshamSingh fired the shot from pistol which struck at the back of hisEfather. When his father fell down, then, others attacked. Allthe accused stood at front and all the three had fired the shot.He further deposes that the firing was done from the front.Other people climbed on the tractor. Upon the seat of the tractoritself, assault was done with spear, sword, etc. Total three shotswere fired. The shots were fired from the distance of 5-7 stepsFnear to the bullock cart.

26. PW2, who was coming on cycle, according to the prosecution,behind the tractor and witnessed the incident, also has deposed thatResham Singh fired the shot by the pistol at the back of the deceased.Darshan Singh and Jagir Singh fired from the front. Pahalwan Singh andGDaleep Singh attacked with other weapons from the front. When theysaw them, then, all the accused were standing behind the bullock cart.Then, he says, Resham Singh had fired the shot from behind after climbingin the tractorwhich had struck at the back of the deceased. There weretotal three fires done. Daleep Singh attacked with spear from the frontin the stomach. Veer Singh assaulted with sabre from behind on theHhead.

27. These are apparently the variations which appear to haveimpressed the High Court.

28. Before we deal with them, let us have look at the otheraspects which weighed with the High Court. PW2 was found to be nota non-partisan witness being related to the informant. PW4 is the maternaluncle of PW1, who, according to PW1, was travelling with him in thetractor. He has turned hostile. It is worthwhile to advert to what PW4has deposed:

“On 23.08.1992 Darogi had not recovered any sword andpistol in front of me from the chhappar of Pahalwan Singh andDarshan Singh. No incident had taken place before me.

Darogaji had not asked anything from me about the incident.His statement under section 361 Cr.P.C. was read. He said, Icannot say the reason that how my such statement was recorded.It is wrong to say that after meeting the accused today I am nottelling this thing.

About the incident, I came to know in the morning. ThatSingara Singh had died. His dead body is lying in the field. SwarnSingh went to lodge the report in the morning. He also came toknow in the morning only that Singara Singh had died.”

29. The further circumstance is the improbability of the accusedfleeing away in the bullock cart after inflicting wounds and firing.

30. The next circumstance relied upon by the High Court is thefact that PW1 deposed that the light of tractor was on whereas PW2deposed that the bulbs of the tractor being off. Trial Court has got overit by reasoning that if the bullock cart was standing blocking, then, blowingthe horn and burning the light by the driver is natural and possible. PW2was coming on the cycle behind the tractor and it may not have beenpossible for him to know that the tractor lights were burning or not. Atany rate, this by itself is not significant contradiction or circumstance aswould merit consideration in the matter of reversing conviction.

31. The next circumstance relied on by the High Court is thataccording to the prosecution case, PW1, his mother and PW4-his uncle,were travelling along with the deceased in the tractor. They were sittingon the tractor and on the mudguard. If there was firing, as projected inthe prosecution case, the High Court found it unnatural that these personswould not suffer any pellet injury when firing was done from the front.

A32. Then, we come to the circumstances which relate to theinconsistency between the ocular evidence and also the medical evidence.PWs 1 and 2 have both deposed that three shots were fired. The medicalevidence, undoubtedly, would show that there were two gunshot injuries,viz., injury no.4 and injury no.5, which we have set out earlier. Gunshotwound entry is on the left side of the back from the shoulder bone towardsBthe lower side. No scorching was found. Injury no.5 was the gunshotwound of entry on the right side of the chest which had fractured thecollarbone and rib. Upon pruning, it was going to back side and lowerside.

33. Regarding the injury (injury no.4), being suffered in the back,Cthe High Court has noted that the case of the informant is that the accusedcame abusing in front of the tractor and then inflicted injuries with theweapons which they were carrying. The court records that the learnedAGA was gracious enough to admit that the medical evidence did notsupport the eyewitness account. It is also found that injuries sustainedDby the sharp-edged weapons were from down to top and not up to down,and therefore, there was inconsistency between the eyewitness accountand medical evidence in this respect also. The High Court further reasonsthat if PW1 is believed that Resham Singh’s bullet hit at the back of thedeceased, then, there is no explanation for ante mortem injury no.5 whereEthe wound of entry is on the right of the chest with blackening andtattooing present. There was no explanation found for injury no.6 incisedwound of 3 cm. x ½ cm. on the right side of the chest near the nipple. Inother words, it is found that if PW1 is believed, then, there would be noante mortem injuries on the front of the deceased [This is apparently amistake]. In normal course, if the assailants have attacked from theFfront, as is the prosecution case, there is justification for injuries nos. 5and 6. But there is no justification for injury no.4. The High Court furtherreasons that if the prosecution witness is believed that the deceasedwas hit from the front, then, the injury no.4 should not have been there.It is further noted by the High Court that it is not the case of theGprosecution that the deceased, while driving the tractor, bent in such away that the bullet hit his back. The statement by PW2 that ReshamSingh stepped into the tractor and fired from behind which hit thedeceased, appeared to the High Court new development. PW3-Doctor,in his cross-examination, deposed that injury no.5 was possible when theassailants hit the victim from height. Injury no. 4 was possible, accordingH

to the medical officer, when the assailants fired on the victim from below(comparatively low level). It is on this basis, the High Court reasons thatreasonable suspicion arises whether the incident took place in the mannerdepicted by the eyewitness. Medical evidence does not support theeyewitness account, it was found. It is on this basis, that the High Courthas taken view that the accused deserve to be acquitted.

34. PWs 1, 2 and 4 are the witnesses for the prosecution whowere stated to have witnessed the incident. There can be no doubt thatthe deceased died brutal death. The nature of the injuries leaves uswith no doubt in this regard. The only question is whether these injurieswere caused by the accused and whether the incident took place in themanner spoken to by the prosecution witnesses.

35. The mother of PW1, who was travelling along with thedeceased, has not been examined even though her statement has beentaken as is proved by the statement of the Investigating Officer. PW4-brother-in-law of the deceased, as noticed by us, has turned hostile. Hedenied that any such incident happened before him. He has deposedthat he came to know in the morning that the death has taken place. Hefurther has deposed that the dead body was lying in the field and thatPW1 went to lodge the report in the morning and he has also come toknow in the morning only about the death. He further deposed that thewife of the deceased and the cyclists, all came to know about the incidentin the morning and thereafter they went to lodge the report.

36. In the FIR, contradiction was noticed by the Trial Courtitself vis-à-vis the deposition of PW1. In the testimony of PW1, he hasattributed overt acts by Jagir Singh and Daleep Singh whereas it is notso found in the FIR. In the FIR, what is recorded is, inter alia, thatResham Singh fired the shot which struck at the back of the deceased.Then, he says Pahalwan Singh with sword, Darshan Singh with pistoland Veer Singh with sabre (Kappa), assaulted. No acts are attributed inthe FIR, as is, in fact spoken to by PW1 in the court against DaleepSingh and Jagir Singh. In the court, PW1 has stated that when his fatherfell down, then, Pahalwan Singh with sword, Darshan Singh with pistol,Veer Singh with sabre, Jagir Singh with pistol and Daleep Singh withspear, assaulted his father. PW2 has also sought to implicate Jagir Singhand Daleep Singh. Thus, the nature of the involvement of Jagir Singhand Daleep Singh, according to version of PWs 1 and 2, involves adeparture from the case set out in the FIR.

A37. Another aspect to be noticed is that PW2 was panch witness.Panchnama was held, as already concluded by us, on 23.08.1992. Thereis no dispute in this case about identification. In other words, there is nocase for the accused that PW2 did not know them. Thus, PW2, it mustbe taken, knew them. PW2 was admittedly panch witness. However,PW2 does not name any of the accused when the Panchnama tookBplace on 23.08.1992. According to him, he did name them but PW5 saysotherwise. The Trial Court has overcome this anomaly by holding thatthe purpose of holding the Panchnama (inquest) would not comprehendwithin it, an inquiry into who has committed the offence.

38. It is true that this Court has repeatedly held that the purposeCof inquest under Section 174 of the Cr.PC, as contained in the saidprovision, the person holding the inquest, in short, is not to make aninquiry about who are the accused (See in this regard the judgment inTehseen Poonawallav. Union of India and another6). But is equally truethat PW2 has not taken the names of any of the accused before the

DInvestigating Officer contrary to his evidence as is proved by the evidenceof the Officer.

39. It is also pressed before us by the State that the High Courthas ignored the aspect relating to recovery of the weapons used by theaccused. PW5-Investigating Officer has spoken about recovery beingEeffected from Darshan Singh and Pahalwan Singh. From Darshan Singh,the pistol was got recovered. From Pahalwan Singh, the sword was gotrecovered. This is done pursuant to the arrest on 23.08.1992. On28.08.1992, Resham Singh, Daleep Singh, Veer Singh and Jagir Singhwere found and arrested. Pursuant to interrogation, PW5 speaks abouttheir stating that they had committed the murder along with Daleep SinghFand Pahalwan Singh on 22.08.1992. PW5 speaks about recovery of 12-bore pistol from Resham Singh, one spear by Daleep Singh and onesabre by Veer Singh. In fact, the High Court has indeed not adverted tothe recoveries, as such.

40. Appellant-State seeks support from judgment in Mangoov.GState of Madhya Pradesh(supra). Therein, this Court took the view thatwhen the medical evidence was not in entire conflict with the ocularversion of child witness, it would not be fatal to the prosecution. It wasa case where there were discrepancies regarding the number of blowsinflicted and which side of the weapon was used in the first instance.H6 (2018) 10 SCC 498

41. In Abdul Sayeedv. State of Madhya Pradesh7, this Courtdiscussed elaborately the case law on the subject of conflict betweenmedical evidence and ocular evidence:

“Medical evidence versus ocular evidence

32. In Ram Narain Singh v. State of Punjab [(1975) 4SCC 497 : 1975 SCC (Cri) 571 : AIR 1975 SC 1727] this Courtheld that where the evidence of the witnesses for the prosecutionis totally inconsistent with the medical evidence or the evidenceof the ballistics expert, it amounts to fundamental defect in theprosecution case and unless reasonably explained it is sufficientto discredit the entire case.

33. In State of Haryana v. Bhagirath [(1999) 5 SCC 96 :1999 SCC (Cri) 658] it was held as follows: (SCC p. 101,para 15)

“15. The opinion given by medical witness need notbe the last word on the subject. Such an opinion shall be testedby the court. If the opinion is bereft of logic or objectivity, thecourt is not obliged to go by that opinion. After all opinion is whatis formed in the mind of person regarding fact situation. If onedoctor forms one opinion and another doctor forms differentopinion on the same facts it is open to the Judge to adopt theview which is more objective or probable. Similarly if the opiniongiven by one doctor is not consistent with probability the court hasno liability to go by that opinion merely because it is said by thedoctor. Of course, due weight must be given to opinions given bypersons who are experts in the particular subject.”

(Emphasis added)

34. Drawing on Bhagirath case [(1999) 5 SCC 96 : 1999SCC (Cri) 658] , this Court has held that where the medicalevidence is at variance with ocular evidence,

“it has to be noted that it would be erroneous to accord undueprimacy to the hypothetical answers of medical witnesses toexclude the eyewitnesses’ account which had to be testedindependently and not treated as the ‘variable’ keeping the medicalevidence as the ‘constant’”.

35. Where the eyewitnesses’ account is found credible andtrustworthy, medical opinion pointing to alternative possibilitiescannot be accepted as conclusive. The eyewitnesses’ accountrequires careful independent assessment and evaluation for itscredibility, which should not be adversely prejudged on the basisof any other evidence, including medical evidence, as the soletouchstone for the test of such credibility.

“21. … The evidence must be tested for its inherentconsistency and the inherent probability of the story; consistencywith the account of other witnesses held to be creditworthy;consistency with the undisputed facts, the ‘credit’ of the witnesses;their performance in the witness box; their power of observation,etc. Then the probative value of such evidence becomes eligibleto be put into the scales for cumulative evaluation.”

[Vide Thaman Kumar v. State (UT of Chandigarh) [(2003) 6SCC 380:2003 SCC (Cri)1362] and Krishnan v. State [(2003) 7SCC 56:2003 SCC (Cri) 1577] at SCC pp. 62-63, para 21.]

36. In Solanki Chimanbhai Ukabhai v. State of Gujarat[(1983)2 SCC 174:1983 SCC (Cri) 379: AIR 1983 SC 484] thisCourt observed: (SCC p. 180, para 13)

“13. Ordinarily, the value of medical evidence is onlycorroborative. It proves that the injuries could have been causedin the manner alleged and nothing more. The use which the defencecan make of the medical evidence is to prove that the injuriescould not possibly have been caused in the manner alleged andthereby discredit the eyewitnesses. Unless, however the medicalevidence in its turn goes so far that it completely rules out allpossibilities whatsoever of injuries taking place in the manneralleged by eyewitnesses, the testimony of the eyewitnessescannot be thrown out on the ground of alleged inconsistencybetween it and the medical evidence.”

(Emphasis added)

37. similar view has been taken in Mani Ram v. State ofU.P. [1994 Supp (2) SCC 289: 1994 SCC (Cri) 1242] , KhambamRaja Reddy v. Public Prosecutor [(2006) 11 SCC 239 : (2007) 1SCC (Cri) 431] and State of U.P. v. Dinesh [(2009) 11 SCC 566: (2009) 3 SCC (Cri) 1484] .

38. In State of U.P. v. Hari Chand [(2009) 13 SCC542:(2010) 1 SCC (Cri) 1112] this Court reiterated theaforementioned position of law and stated that: (SCC p. 545, para13)

“13. … In any event unless the oral evidence is totallyirreconcilable with the medical evidence, it has primacy.”

39. Thus, the position of law in cases where there is acontradiction between medical evidence and ocular evidence canbe crystallised to the effect that though the ocular testimony of awitness has greater evidentiary value vis-à-vis medical evidence,when medical evidence makes the ocular testimony improbable,that becomes relevant factor in the process of the evaluation ofevidence. However, where the medical evidence goes so far thatit completely rules out all possibility of the ocular evidence beingtrue, the ocular evidence may be disbelieved.”42. There are certain other aspects which strike us. The incidentallegedly unfolded when the deceased along with PW1, his wife, andbrother-in-law (PW4) were coming back from Nanakmatta in tractor.The case of the prosecution further is that the accused came forwardand committed the acts attributed to them. There is an allegation thatsome relatives accompanying the deceased were sitting on the mudguardof the tractor. There is case for the prosecution that the deceased fellfrom the tractor when PW1 was asked how he went to the Police Stationto lodge the report and whether he had taken the tractor, his answer wasthat since the body of his father was lying on it, they did not take thetractor and they went on foot. Therefore, it must be taken that the bodywas on the tractor. PW5-the Investigating Officer, on the other hand,deposed that the dead body of the deceased was lying in the paddy fieldat the side of the road. PW5-original Investigating Officer does not speaka word about the tractor. Was an effort made to trace the tractor and tomake it available in evidence as the details about the tractor would haveshed light on the position of the deceased and of the others and facilitatedthe proving of the prosecution case. According to PW1, the tractor wasleft behind as the dead body was lying on it. As noted, PW5 speaksotherwise and the dead body was found at the paddy field at the side ofthe road. Whether, therefore, the tractor was in fact used as claimed bythe prosecution? There is no evidence regarding any investigationconducted by the Officer in regard to the tractor. The nature and size ofthe tractor remains mystery.

43. We have already noticed that there are contradictions in theevidence of PWs 1 and 2 as to who wrote the report. Did PW1 himselfwrite the report as claimed by PW2 in his cross-examination or was itwritten by Ishwar Singh, who according to PW1 wrote the report? Thereare contradictory answers given by PWs 1 and 2 as already noticed.

B44. Another aspect which strikes us is as follows:

According to PW1, his mother who was travelling with himand his father and who has witnessed the entire incident, issupposed have walked good seven to eight kilometres to thePolice Station, if PW2 is believed.

PW1 claims that he, his mother and his maternal uncle (PW4)had told Ishwar Singh about the incident, and after writing thereport, PW1 appended his signatures. As already noticed, PW4-maternal uncle has turned hostile. PW1 does not speak aboutPW2 accompanying them to the Police Station. PW2, on the otherDhand, would state that he also went along with them (not ridingthe cycle but on foot). Is it likely that the mother of PW1, who haswitnessed the ghastly murder of her husband and who would beshell-shocked, would undertake the journey seven to eightkilometres long or would she rather not prefer to stay near thebody of her husband? She has not been examined.

45. If the incident had happened, as projected by the prosecution,and PW1, his mother and PW4 were accompanying the deceased apartfrom PW2 and other cyclists, would they not immediately rush the bodyto the nearest hospital? In fact, from the post-mortem report, it wouldappear that the body reached the hospital only on 23.08.1992 in theFafternoon. These aspects create doubts in our minds and strengthensthe judgment of the High Court further.

46. As far as injury no.4 is concerned, quite indisputably, it hasbeen sustained by the deceased on the back side. The site of the injuryis not the subject matter of any controversy. Both, oral testimony andGthe medical evidence, establish this fact. In regard to this fact, there isno contradiction between the oral version of the witnesses and the Expertopinion.

47. In fact, the doubt arises about the prosecution version fromthe oral testimony itself. As noticed already, PW1 is already unambiguousHwhen he states that all the accused came at front and all the three had

fired the shots. The firing, PW1 was specific, was done from the front.He claims that other people climbed on the tractor. This can mean thatthe people who had not done the firing and who were otherwise armedaccording to his version, climbed on the tractor. In his earlier version, inthe chief examination, he, on the other hand, states that when his fatherfell down, the Pahalwan Singh with sword, Darshan Singh with pistol,Veer Singh with Sabre, Jagir Singh with pistol and Daleep Singh withspear, assaulted his father. This itself manifests contradiction.

48. PW1 deposed that upon the seat of the tractor itself, assaultwas done with sword, spear, etc. His father fell down on the seat of thetractor. If the version of PW1 is accepted, it is difficult to explain howinjury no.4, viz., gunshot injury could be sustained by his father on theback. It is to be immediately noticed that this does not involve alluding tothe medical evidence as it is not the prosecution version that injury no.4was not sustained in the back side. It is to be noticed that according toPWs 1 and 2, the first shot was fired by Resham Singh. PW1 states thathe fired from the pistol which struck at the back of his father. Accordingto the prosecution version, deceased was driving the tractor. We havealready noticed the non-availability of the details of the tractor.Incidentally, PW1 gives the number of the tractor as 1815.

49. The real contradiction comes in the form of testimony of PW2.PW2 states that Resham Singh fired the shot from behind after climbingin tractor which had struck at the back of deceased whereas PW1 hasdeposed that all the accused came stood at front and all the three hadfired the shot. This is an inconsistency which goes to the root of thematter. If the above version of PW1 is believed, it is the deposition ofPW2 which comes under cloud. More importantly, injury no.4, viz., thegunshot injury at the back remains unexplained. For this, we do not haveto go into the contents of the medical evidence. It is not doubt true thatthat the medical evidence also points to the injury no.4 being sustainedby the deceased on his back side.

50. We have already noticed that PW2 has initially stated thatPW1 got the report written by Ishwar Singh. We have further noticedthat contrary to the evidence of PW1 that the Panchnama of the deadbody (inquest) was done on the very same night in torch light, both PWs2 and 5 have deposed that Panchnama was done only on the nextmorning. PW2 takes stand that he had told the names of the accusedat the time of the inquest. There is not much dispute that the inquest

Adoes not bear him out in this regard. PW2 has deposed that ReshamSingh fired the shot from behind after climbing in the tractor which hadstruck at the back of the deceased. PW1, on the other hand, has statedthat the shots were fired from the distance of five to seven steps near tothe bullock cart. Even proceeding on the basis on what the Trial Courthas accepted, viz., that five to seven steps near to the bullock cart is notBto be understood as five to seven steps around the bullock cart but itwould be away from the bullock cart, and therefore, near to the tractor,PW1 has no case that Resham Singh has fired the shot after climbing inthe tractor, thus, striking at the back of the deceased. PW2 speaks aboutDaleep Singh assaulting with spear and Veer Singh assaulting with sabreCfrom behind on the head. It is to be noted that in the FIR, Resham Singhis stated to have fired the shot which struck at the back of his father.Pahalwan Singh with sword, Darshan Singh with pistol and Veer Singhwith sabre assaulted. No role has been attributed in the FIR to DaleepSingh and Jagir Singh whereas when the evidence opened, PW1 hasgone on to attribute specific overt acts to them also. While FIR is notDto be an encyclopaedia of all that transpired, the omission to mentionabout actual overt acts to Daleep Singh and Jagir Singh, creates seriousdoubt about the version.

51. PW2 also stated that they had left the tractor at the spot andhad not taken it to the Police Station to lodge the report as the dead bodyEwas on it. On the other hand, the site of the dead body is the paddy filed,according to PW5. The tractor is not referred to by PW5.

52. As regards the deceased falling down on being shot at andassaulted, PW5 would state that PW1 did not tell him anything (apparently,in the 161 statement about the fact of the deceased falling down).F

53. The bullock cart was not taken into possession by the Officer.

54. The next aspect is about the recoveries attributed to theaccused based on the statements. PW5 has stated, inter alia, as follows:

“Darshan Singh had told that pistol through which I hadGfired that has been kept hiding in the heap of straw (Bhoosa) inthe house of Pahalwan Singh, can give after taking out andPahalwan Singh told that the sword from which I had killed SingaraSingh. That I have kept hiding in the heap of straw (Bhoosa) nearmy house, can give after taking out. We people went with accusedand amongst the accused Pahalwan Singh had given one swordH

from the heap of straw near to his house and Darshan Singh hadgiven one pistol 12 bore after taking out and said that it is, thatpistol and sword which was used in the murder of Singhara Singh.”

55. PW5 has spoken about the recoveries effected from ReshamSingh, Daleep Singh and Veer Singh. Recovery of pistol was effectedaccording to PW5 on the basis of statement given by Resham Singh;spear on the basis of statement given by Daleep Singh and sabre on thebasis of the statement by Veer Singh.

56. The manner of effecting recovery has been described by PW5in the following words:

“In Ex. Ka 12 Darshan Singh and Pahalwan Singh told thatwe can given sword and pistol which has been kept hiding nearthe house of Pahalwan Singh. Accused moved ahead and wentnear to chhapper. Only one memo of recovery of Pahalwan Singhand Darshan Singh is there. Before preparing this memo, thestatement of accused were not recorded on separate paper. Inthe same way memo of accused Resham Singh, Daleep Singhand Veer Singh also is one and not noted anywhere separately.But all the three said that we can give after going and all threeaccused moved ahead and carried at the place of recovery.”

The finding in the FSL Report that the cartridge (apparentlyrecovered from the site) has been fired from the 12-bore pistol no.1/69,would not be sufficient for us to hold that the prosecution version in thiscase stands established and that too in an appeal against the acquittal.

In criminal trial, the prosecution can succeed only if the guilt ofthe accused is brought home. That the accused may have done thecrime barely suffices. The case of the prosecution as sought to be madeout must be established.

57. In the state of evidence, in this case otherwise, as discussed,particularly bearing in mind the nature of the limited jurisdiction this Courtexercises qua the order of acquittal rendered by the High Court, theappellant has not made out case in interfering with the impugnedjudgment of the High Court. Resultantly, the appeals fail and areaccordingly dismissed.

Ankit Gyan