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Sections 302 and 307 read with Section 34 of the Indian Penal Code (IPC) and under Sections 25 and 27 of the Arms Act – Apex court set aside the orders of conviction and confirmed the lower court acquittal orders – Joginder Singh … Appellant Versus State of Haryana …Respondent – http://judis.nic.in/supremecourt/imgst.aspx?filename=40895

Sections 302 and 307 read with Section 34 of the Indian Penal Code (IPC) and under Sections

 

English: The supreme court of india. Taken abo...

English: The supreme court of india. Taken about 170 m from the main building outside the perimeter wall (Photo credit: Wikipedia)

 

25 and 27 of  the  Arms Act – Duty of High court while reversing  the acquittal judgement based on sound principles – not to be disturbed  with out settling the issues on material aspects  – Non- examination of material witnesses can not be over looked – discrepancy in ballistic report and ocular evidence should not be brushed aside – origin of offence when differs should not be kept aside – Apex court set aside the orders of conviction  and confirmed the lower court acquittal orders  =

 

 

 

whether the High Court while  dislodging  the  reasons  and

 

                 substituting the findings has appositely re appreciated  the

 

                 oral and documentary evidence brought on record to come  to

 

                 the conclusion that the view taken  by  the  learned  trial

 

                 Judge is neither a plausible nor  a  reasonable  one.  =

 

 

 

in  exercising  the  power

 

                   conferred  by  the  Code   and   before   reaching   its

 

                   conclusions upon fact, the High Court  should  and  will

 

                   always give proper  weight  and  consideration  to  such

 

                   matters as 

 

(1) the views of the trial judge  as  to  the

 

                   credibility of the witnesses;  

 

(2)  the  presumption  of

 

                   innocence  in  favour  of  the  accused,  a  presumption

 

                   certainly not weakened by the  fact  that  he  has  been

 

                   acquitted at his trial; 

 

(3) the right of the accused  to

 

                   the benefit of any doubt; and 

 

(4)  the  slowness  of  an

 

                   appellate court in disturbing a finding of fact  arrived

 

                   at by a judge  who  had  the  advantage  of  seeing  the

 

                   witnesses.  

 

To state this, however, is only to say  that

 

                   the High Court in its conduct of the appeal  should  and

 

                   will act in accordance with rules  and  principles  well

 

                   known and recognized in the administration of justice.”

 

It is urged by  him  that  though  the  High

 

                 Court has enumerated the reasons given by the  trial  court

 

                 and thereafter unsettled them, yet the reasons ascribed  by

 

                 the High Court for taking a different  view  is  not  sound

 

                 inasmuch as there has been really no  proper  consideration

 

                 of the evidence which is obligatory  on  the  part  of  the

 

                 appellate  court  to  do  while  dislodging  the   findings

 

                 recorded by the trial court.

 

 

 

Non- Examination of material witness – fatal to prosecution = 

 

whether  such  non-

 

                     examination  of  a  witness  would  carry  the  matter

 

                     further  so  as  to  affect  the  evidence  of   other

 

                     witnesses and if the evidence of a witness  is  really

 

                     not essential to  the  unfolding  of  the  prosecution

 

                     case, it cannot be considered a material witness

 


non-examination  of  the  material

 

                 witnesses is of significance.  

 

It is so  because  PW-11  is

 

                 really an interested witness though the High Court has  not

 

                 agreed with the same.  

 

It appears from the material brought

 

                 on  record  that  he  had  an  axe  to  grind  against  the

 

                 appellant.  

 

That apart, Chander, who was present  from  the

 

                 beginning, would have been in a position to  disclose  more

 

                 clearly about the genesis of the  occurrence.  

 

 He  is  the

 

                 husband of the deceased and  we  find  no  reason  why  the

 

                 prosecution had withheld the said witness.  

 

Similarly,  the

 

                 other three witnesses who are said to be injured  witnesses

 

                 when available should have come and deposed.  

 

Therefore, in

 

                 the obtaining factual  matrix  that  their  non-examination

 

                 gains significance.

 

 

 


The case of the prosecution was  that  Mohinder  Singh

 

                 had snatched away the gun and fired  at  Mithan  Singh  and

 

                 Bimla.   

 

The   learned   trial   Judge   disbelieving   the

 

                 prosecution version had acquitted him.  

 

The High Court  has

 

                 given him benefit of  doubt.   

 

 

 

there was no  reason  to  extend

 

                 the said benefit of doubt to the appellant.  

 

The High Court

 

                 has fallen into error on that score.

 


             27. In view of the aforesaid analysis, the appeal  is  allowed,

 

                 the judgment passed by the High Court is set aside and that

 

                 of the learned trial Judge is restored.  

 

As  the  appellant

 

                 is on bail, he be discharged of the bail bonds.

 

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1148 OF 2007

 
Joginder Singh … Appellant
Versus
State of Haryana …Respondent

 
J U D G M E N T

 
Dipak Misra, J.

 
The present appeal under Section 379 of the Code of Criminal
Procedure, 1973 (for short “CrPC”) is directed against the judgment of
conviction and order of sentence dated 9.5.2007 passed by the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal No. 702-
DBA of 1997 whereby the High Court has partly reversed the judgment of
acquittal dated 9.6.1997 recorded by the learned Additional Sessions
Judge, Kaithal in Sessions Trial No. 15 of 1993 instituted for
offences punishable under Sections 302 and 307 read with Section 34 of
the Indian Penal Code (IPC) and under Sections 25 and 27 of the Arms
Act against the appellant and two others and convicted the appellant
alone under Section 302 IPC and sentenced him to undergo rigorous
imprisonment for life.

 

2. Filtering the unnecessary details the broad essential
facts, as put forth by the prosecution, are that there was
a dispute about the vacant plot of shamlat land where the
complainant and his family members used to store their
respective kurris (heap of rubbish). The said land was
given to Guru Ravidass Mandir by the Gram Panchayat vide
resolution dated 22.03.1989. Accused Joginder Singh and
Mohinder Singh, both real brothers kept on asserting their
ownership over the said land and were not prepared to
surrender it. Both the accused were booked twice under
sections 107 and 151 of CrPC relating to the said land. On
15.11.1991 about 4:00 pm., Joginder Singh parked his
combine harvester on the disputed land which was objected
to by deceased Kamla wife of Chander, Murti, wife of
Dharambir, Bala, daughter of Sita Ram and other ladies
present at that time. But Joginder Singh did not pay any
heed to the objection raised by the women, and abused them.
In the meantime Chander, Dharambir, PW-3, and Mithan Singh,
PW-2, came outside and asked accused Joginder Singh not to
park his combine harvester on the disputed land. At that
juncture, Mohinder Singh and Anokh Singh, nephew of the
accused, arrived at the scene and all of them started
abusing the complainant and other women. The initial
altercation took a violent turn and both the parties
grappled with each other. During the fight accused persons
ran away to their houses and returned with weapons.
Joginder Singh came armed with a DBBL .12 bore gun while
the other two accused did not bring any weapon. As the
prosecution story proceeds, both of them raised a ‘lalkara’
in filthy language to kill the members of other side.
Accused Joginder Singh fired two shots from his gun pellets
of which hit in the chest of Kamla and Bala and also in the
chest and mouth of Mithan Singh, PW-2. Accused Mohinder
Singh snatched the gun from Joginder Singh and fired two
shots that hit the back of Bimla and the stomach region and
thigh of Murti. The injured persons fell down on the ground
on receipt of gunshot injuries. After hearing the gunshot
number of villagers came to the place of occurrence
whereafter the accused persons took to their heels. Kamla
succumbed to her injuries on the spot and her husband was
asked to stay back to guard the dead body of his wife.
Pritam Singh, PW-1, Karambir, Mamu Ram and others took the
other injured persons in a vehicle to Civil Hospital,
Kaithal. Pritam Singh went to Police Station to lodge the
FIR and his statement was recorded by the Inspector of
Police, Prem Chand, PW-16, and an FIR was registered at
8:30 pm.

 

3. After the criminal law was set in motion, the investigating
agency commenced the investigation and in course of
investigation, Prem Chand, PW-16, prepared the inquest
report, got the site plan done, collected the blood-stained
earth and the pellets lying at the spot, sent the dead body
for the post mortem and forwarded the articles to the
Forensic Science Laboratory for examination, arrested the
accused persons, recovered DBBL .12 bore gun and live
cartridges, recorded the statements of other witnesses and
after completing all other formalities laid the charge
sheet for the offences punishable under Sections 302 and
307 read with Section 34 IPC and Sections 25 and 27 of the
Arms Act before the competent court which, in turn,
committed the same to the Court of Session. The accused
persons pleaded not guilty to the charges and claimed to be
tried.

 

4. To substantiate the charges the prosecution examined as
many as 16 witnesses. The main witnesses are Pritam Singh,
PW-1, the complainant, Mithan Singh, PW-2, Dharambir, PW-3,
the eye witnesses to the occurrence, Dr. B.B. Kakkar, PW-4,
who examined the injured, Dr. A.K. Leel, PW-8, who had
conducted the post-mortem and also had examined the other
injured witnesses; Zile Singh, PW-11, Sarpanch of the Gram
Panchayat and Inspector Prem Chand, PW-16, the
investigating officer of the case. The prosecution had
exhibited number of documents which included the report of
the Chemical Examiner, Ex. P.TT and report of Serology, Ex.
P.TT/1 and report of Ballistic Expert, Ex. P.UU.

 

5. The accused in their statements recorded under Section 313
CrPC denied the incriminating evidence appearing against
them. They admitted that Joginder Singh and Mohinder Singh
are real brothers and Anokh Singh is their sister’s son.
Accused Joginder Singh took the plea that he had been using
the land where the combine harvester was installed since
long and the Harijan community wanted to forcibly occupy
the said land. On the date of occurrence, people belonging
to Harijan Community, both men and women, armed with fire-
arms and other weapons came to his house and fired and he
was compelled to hide himself in his house to save his
life. Persons of Harijan community started firing
indiscriminately at his house where he was hiding. In that
process the injured and deceased received injuries. He did
not use his gun at all nor was his gun taken by Mohinder
Singh at any time. Accused Mohinder Singh and Anokh Singh
took the plea that they had no concern with the land or
with the combine harvester and they were not present at the
spot.

 

6. Learned Addl. Sessions Judge, Kaithal, considering the
evidence brought on record, acquitted all the accused of
the charges under sections 302 and 307 read with Section 34
IPC and Sections 25 and 27 of the Arms Act on the ground
that the prosecution had failed to prove its case against
the accused beyond all reasonable doubt. To come to such a
conclusion the learned trial Judge, after due perusal of
the evidence and material brought on record, took note of
various aspects, namely, a litigation was pending as
regards the possession between the Guru Ravidass Mandir
Sabha and the accused persons and the complainant had
nothing to do with the land; that there had been dispute
between Joginder Singh on one hand and Harijan community on
the other with regard to the plot which is situate in front
of the house of Joginder where the alleged occurrence had
taken place; that after coming from Pakistan the father of
the accused Joginder Singh had settled in the village at
the very site; that a Civil Suit No. 191 of 1990 titled as
“Guru Ravidass Sabha Sangan vs. Joginder Singh and Mohinder
Singh” was filed in the Court of Civil Judge, Senior
Division, Kaithal and an interim order of stay was passed
in favour of the Sabha which was vacated by order dated
15.3.1991 directing the parties to maintain status quo till
the decision of the suit and, eventually, the suit was
dismissed on 24.10.1994 for want of prosecution; that
though some resolutions were passed by the Gram Panchayat
in favour of the Guru Ravidass Sabha, yet the land was in
possession of Joginder Singh and there was no record that
Panchayat had delivered possession to anyone; that the
complainant, Pritam Singh, PW-1, was concealing the truth
from the court inasmuch as he denied the obvious fact
reflectible at a mere glance of the photographs, Exts. DA
to DC, to the effect that there were pellets marks on the
wall of the house of the accused; that Mithan Lal, PW-2,
who had stated that he had received injury on his left eye
and had lost his eye sight though was able to identify
other things yet expressed his inability to identify the
photographs Exts. DA to DC that show the house of the
accused; that Zile Singh, PW-11, was an interested witness
as Joginder Singh had got an enquiry conducted against him
while Zile Singh was the Sarpanch of the village and he had
deliberately not identified the house of the accused in the
photographs, Exts. DA to DC, on the ground that his eye
sight was weak. These findings were recorded to highlight
that the accused-appellant was in possession of the land in
dispute and the members of the Harijan community came armed
with weapons to forcibly take possession.

 

7. The learned trial Judge thereafter addressed to the
injuries sustained by various injured persons and found
that the case that was put forth initially by the
prosecution and the medical report were different and he
did not think it prudent to believe such evidence. He also
noticed that there were irreconcilable discrepancies
between the weapon used and the injuries sustained. He
also noticed that Dr. Leel, PW-8, had sent a report, Ext.
P2 by which he had sent two pellets recovered from the body
of Murti in a sealed parcel to the SHO, Police Station,
Sadar, but the serology report Ext. P.TT/1 showed that
there was no blood on the pellets and further the said
witness had deposed that he had not put any identification
mark on the pellets.

 

8. Thereafter, the learned trial Judge, relying on the
ballistic report, Ext. P.UU, opined that the .12 bore fired
cartridges cases C1 to C4 were fired from a fire-arm but
not from DBBB gun W/1, Ext 15, the weapon that was seized
from the custody of the accused Joginder Singh. He also
took note of the fact that the ballistic report though
referred to the mutilated pellets that had hit the
deceased, yet did not give any opinion. These findings
were recorded to form an opinion that the members of
Harijan community armed with weapons were present at the
spot and the injuries inflicted upon the deceased occurred
in a different way than the one projected by the
prosecution. Being of this view he found that the
prosecution had failed to establish its case beyond
reasonable doubt against the main accused Joginder Singh
and resultantly against the other accused persons also and,
accordingly, acquitted all of them.

 

9. The High Court, in appeal, enumerated the reasons of
acquittal given by the learned trial Judge and thereafter
came to hold that rejection of the version of the eye
witnesses was not valid; that factum of motive was of no
significance as there was direct evidence on record; that
the discrepancies which were taken note of by the learned
trial Judge were incorrect; that the learned trial Judge
had misdirected himself by relying on the medical opinion
when the account of the eye witnesses was credible and
trustworthy; that the learned trial Judge had not kept
himself alive to the principle that while appreciating the
evidence that injuries when caused by fire-arms there can
be variety of wounds depending upon the nature of fire-arm
used, distance, direction, manner and other factors; that
the trial Judge had also erroneously appreciated the nature
of gunshot injuries, for such appreciation is contrary to
the medical jurisprudence; that there was a serious dispute
with regard to possession and the trial court had wrongly
presumed the factum of possession; that the reason given
that when the accused persons had left the place of
occurrence it is a normal conduct of a person to go back to
his house is contrary to the acceptable norms of
appreciation of evidence; that the pellet marks on the wall
shown in the photographs do not improbablise the version of
the prosecution, more so, when none of the accused persons
were injured; that the discrepancy noted in the injuries
sustained by Pritam Singh, PW-1, was inconsequential; that
there was no justification to reject the testimony of Zile
Singh, PW-11, on the ground that he was inimically disposed
towards the accused; that the nature of injuries sustained
by Dharambir, PW-3, should not have been disbelieved on the
ground that the nature of weapon described was different;
that the report of ballistic expert showed that the
cartridges were fired from the same weapon but not from W-
1, would not belie the prosecution version; and that the
discrepancy of range of gun and distance of the injured as
found by the learned Judge was not material. After
unsettling the said reasons the High Court opined that the
view expressed by the learned trial Judge was not a
plausible one and the case of the prosecution stood fully
established against the appellant, as far as causing the
death of Kamla is concerned and, accordingly, convicted him
under Section 302 IPC and sentenced him to suffer life
imprisonment and also to pay a fine of Rs.5000/-, in
default of payment of fine, to further undergo rigorous
imprisonment for one year. However, the High Court gave
benefit of doubt to Mohinder Singh and Anokh Singh.

 

10. We have Heard Mr. Neeraj Jain, learned senior counsel
appearing for the appellant and Mr. Rajeev Gaur ‘Naseem’,
learned counsel appearing for the State of Haryana.

 

11. Mr. Neeraj Jain, learned counsel for the appellant, has
submitted that the High Court has fallen into grave error
by opining that the view expressed by the learned trial
Judge was perverse and not a plausible one though the
learned trial Judge has scrutinized the evidence in a
detailed manner and the opinion expressed is a well
reasoned one. It is urged by him that though the High
Court has enumerated the reasons given by the trial court
and thereafter unsettled them, yet the reasons ascribed by
the High Court for taking a different view is not sound
inasmuch as there has been really no proper consideration
of the evidence which is obligatory on the part of the
appellate court to do while dislodging the findings
recorded by the trial court. It is urged that the major
discrepancies in the statement of three star witnesses of
the prosecution, namely, Pritam Singh, PW-1, Mithan Singh,
PW-2, and Dharambir, PW-3, with regard to the genesis of
occurrence has been overlooked by the High Court. He has
further put forth that the photographs of the site plan
were taken by the investigating agency and nothing had come
on record that the accused persons had caused the pellet
marks and, therefore, when the witnesses deliberately did
not identify the photographs despite being proven and
brought on record makes the version of the defence that the
complainant party was also armed with weapons and attacked
on the house of the accused-person cannot be ignored. The
learned counsel would emphatically argue that the High
Court has cryptically ignored the ballistic report which
clearly showed that the empty cartridges recovered from the
spot were found not to have been fired from the gun of the
accused-appellant which fortifies the defence version that
the accused never fired. That apart, submitted Mr. Jain,
that the ballistic report has not been discussed by the
High Court, for the said report does not connect the
mutilated pellets found from the body of the deceased with
the weapon seized from the appellant. He also canvassed
that an important aspect has not been taken note of by the
High Court, as is evincible from the evidence of Inspector
Prem Chand, PW-16, the Investigating Officer, that he was
pressurized to proceed against the appellant and his
relations and it is further obvious as the prosecution has
not examined Chander, husband of the deceased, and three
other women, namely, Bala, Murti and Bimla who were alleged
to have sustained injuries in the occurrence. To bolster
his contentions, he has commended us to the decisions
rendered in Sheo Swarup & others v. King Emperor[1],Chandu
v. State of Maharashtra[2], Murugesan S/o Muthu and others
v. State through Inspector of Police[3], Rathinam @Rathinam
v. State of Tamilnadu and another[4], Ram Narain Singh v.
State of Punjab[5], Brijpal Singh v. State of Madhya
Pradesh[6] and Mahendra Pratap Singh v. State of Uttar
Pradesh[7].

 

12. Mr. Rajeev Gaur ‘Naseem’, learned counsel appearing for the
State, supporting the judgment of the High Court, submitted
that though there is a discrepancy in the ballistic report,
yet the substantive evidence of the three eye witnesses,
including one injured eye witness, cannot be rejected. He
has relied on the authority in Ram Bali v. State of Uttar
Pradesh[8]. It is his further submission that the High
Court has correctly opined that the judgment of acquittal
rendered by the learned trial Judge was perverse and
deserved to be interfered with.

 

13. Before we proceed to consider the rivalised contentions
raised at the bar and independently scrutinize the relevant
evidence brought on record, it is fruitful to recapitulate
the law enunciated by this Court pertaining to an appeal
against acquittal. In Sheo Swarup (supra), it has been
stated that the High Court can exercise the power or
jurisdiction to reverse an order of acquittal in cases
where it finds that the lower court has “obstinately
blundered” or has “through incompetence, stupidity or
perversity” reached such “distorted conclusions as to
produce a positive miscarriage of justice” or has in some
other way so conducted or misconducted himself as to
produce a glaring miscarriage of justice or has been
tricked by the defence so as to produce a similar result.
Lord Russel, authoring the judgment for the Prevy Council,
opined thus: –

 

“Sections 417, 418 and 423 of the Code give to the High
Court full power to review at large the evidence upon
which the order of acquittal was founded, and to reach
the conclusion that upon that evidence the order of
acquittal should be reversed. No limitation should be
placed upon that power, unless it be found expressly
stated in the Code. But in exercising the power
conferred by the Code and before reaching its
conclusions upon fact, the High Court should and will
always give proper weight and consideration to such
matters as (1) the views of the trial judge as to the
credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption
certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to
the benefit of any doubt; and (4) the slowness of an
appellate court in disturbing a finding of fact arrived
at by a judge who had the advantage of seeing the
witnesses. To state this, however, is only to say that
the High Court in its conduct of the appeal should and
will act in accordance with rules and principles well
known and recognized in the administration of justice.”

 

14. The said principle has been followed in subsequent
pronouncements in Balbir Singh v. State of Punjab[9], Khedu
Mohton and others v. State of Bihar[10], Ram Narain Singh
(supra), Ganesh Bhavan Patel and another v. State of
Maharashtra[11], Awadhesh and another v. State of Madhya
Pradesh[12], Ram Kumar v. State of Haryana[13], Bhagwan
Singh and others v. State of M.P.[14], State of Goa v.
Sanjay Thakran and another[15], Puran Singh v. State of
Uttaranchal[16], Mahendra Pratap Singh (supra), Murugesan
C/o Muthu (supra) and Shivasharanappa and others v. State
of Karnataka[17].

 

15. It is also worth noticing that in Murugesan’s case the
Court referred to the decision in State of Rajasthan
through Secretary, Home Department v. Abdul Mannan[18]
wherein distinction between the statutory appeal and the
legislative intent was dealt with. The subsequent Division
Bench reproduced a passage from Abdul Mannan’s case which
is extracted below: –

 

“12. As is evident from the above recorded findings,
the judgment of conviction was converted to a
judgment of acquittal by the High Court. Thus, the
first and foremost question that we need to consider
is, in what circumstances this Court should interfere
with the judgment of acquittal. Against an order of
acquittal, an appeal by the State is maintainable to
this Court only with the leave of the Court. On the
contrary, if the judgment of acquittal passed by the
trial court is set aside by the High Court, and the
accused is sentenced to death, or life imprisonment
or imprisonment for more than 10 years, then the
right of appeal of the accused is treated as an
absolute right subject to the provisions of Articles
134(1)(a) and 134(1)(b) of the Constitution of India
and Section 379 of the Code of Criminal Procedure,
1973. In light of this, it is obvious that an appeal
against acquittal is considered on slightly different
parameters compared to an ordinary appeal preferred
to this Court.”

 

16. In the case at hand, it is noticeable that the High Court
has compartmentalized the reasons ascribed by the learned
trial Judge and thereafter dislodged the same one by one.
The approach of the High Court in this regard cannot be
flawed, but a pregnant one, it is required to be examined
whether the High Court while dislodging the reasons and
substituting the findings has appositely reappreciated the
oral and documentary evidence brought on record to come to
the conclusion that the view taken by the learned trial
Judge is neither a plausible nor a reasonable one. The
learned trial Judge, analyzing the evidence on record, had
recorded a finding that neither the complainant nor his
family members nor the members of the Harijan community had
any right on the land inasmuch as the controversy in the
civil suit was between Guru Ravidass Mandir Sabha and the
accused persons. The trial court had observed that no
document was brought on record to show that possession of
the disputed land was handed over to the complainant or his
family members in pursuance of the alleged resolution of
the Gram Panchayat. The learned trial Judge had also
observed that the plea of the accused persons that they had
settled there since the time of their predecessors-in-
interest who had migrated from Pakistan was acceptable.
Thus, the learned trial Judge returned a finding in favour
of the accused persons. This finding, needless to say, has
been arrived only to nullify the allegation of the
prosecution that the accused persons forcibly put their
combine harvester on the disputed land. The High Court, as
is perceptible, has observed that there is a serious
dispute with regard to possession. The High Court has
failed to appreciate that on earlier occasion there was an
order of injunction which was vacated and the suit stood
dismissed. It may be noted that even if there was a serious
dispute relating to possession, the learned trial Judge on
the analysis of the material on record had not accepted the
prosecution version that the accused persons forcibly
entered upon the land and installed the combine harvester.
In fact, as the evidence would reveal, the combine
harvester was installed much prior to the date of
occurrence. The view taken by the learned trial Judge in
this regard for the aforesaid limited purpose is a
plausible one. The said finding by itself is of no
consequence but it has been recorded to support and sustain
the finding that the accused-appellant and his relations
did not by force enter upon the disputed land and put the
combine harvester. The learned trial Judge, on the
aforesaid base, had held that there was no intention on the
part of the accused persons and the High Court has opined
that the question of motive or intention is inconsequential
when there is direct evidence on record. It is settled in
law that when there is direct evidence, the proof of
intention is not necessary. However, the analysis of the
learned trial Judge would go a long way to show that he had
meticulously scrutinized the evidence relating to factum of
possession to highlight that the accused persons had no
intention to forcibly enter upon the land and assert their
right. True it is, it has come on record that both the
parties were fighting over possession, the complainant and
others, on the ground that it was given to them by Guru
Ravidass Mandir Sabha to construct a temple thereon and the
accused persons were resisting the construction of temple.
The said controversy was the subject-matter of the civil
lis. As is evincible from the deposition of the witnesses
that the combine harvester was there on the disputed land
and the accused persons had not encroached upon the land to
assert their possession. To that extent the finding of the
learned trial Judge cannot be found fault with.

 

17. At this juncture, we are obliged to state that though there
has been compartmentalization of the reasoning, basically
there are three aspects which require scrutiny. The
learned trial Judge had not accepted the credibility of the
prosecution witnesses about the involvement of the accused
in firing as a result of which the deceased and the injured
persons sustained injuries. For supporting the same he had
given emphasis on certain discrepancies, which the learned
counsel for the State would submit, are absolutely minor in
nature. It is worthy to note that the learned trial Judge
had recorded the discrepancies and referred to the
ballistic report to support his conclusion that the
prosecution had not established the case and in all
possibility had tried to protect the real assailants. To
test the justifiability of the said finding and the
ultimate conclusion it is necessary to evaluate the
evidence brought on record. PW-16, the investigating
officer, had clearly deposed that he had seized four empty
cartridges – C-1 to C-4 from the spot where he arrived in
quite promptitude. On a perusal of the ballistic report,
it is manifest that ]they were not fired from the weapon,
Ext.-15, seized from the house of the accused-appellant.
The learned trial Judge had taken note of the fact that the
pellets marks were there on the walls of the house of the
appellant, which were visible from the photographs, Ext.-DA
to DC. These aspects show that there were also other
persons present at the spot who had come with arms. It is
demonstrable from the material brought on record that there
were people from the Harijan community who had come to the
disputed land and fired at the house of the accused
persons. The said conclusion is buttressed from the fact
that the empties found from the spot were not fired from
the gun of the accused.

 

18. Quite apart from the above, cross-examination of the eye-
witnesses it is also clear that the members of the Harijan
community had licensed guns and they hearing the shout had
gathered at the spot. The High Court while lancinating
the finding of the learned trial Judge on this score has
only given a cryptic opinion without any reason that it
does not create a dent on the prosecution case. In our
considered opinion, such unsettling of a reasonable finding
in a cryptic manner is not acceptable. We are of the
considered view that it creates a grave dent on the version
advanced by the prosecution.

 

19. Another aspect needs to be addressed. The learned trial
Judge has disbelieved the version of the prosecution
relating to firing by the appellant on deceased Kamla and
other injured persons on two counts, namely, the range from
which it was fired on deceased Kamla, and there is no
material on record to connect the injuries with the seized
fired arms. The High Court has overturned the distance
part but has not really dwelled upon the other aspect. As
far as the facet of the distance is concerned, the opinion
of the High Court seems to be sound. But the fact remains
that there is no material on record to connect that the
gunshot injuries suffered by the deceased are due to the
shots fired from the gun of the appellant. It is also
discernible that though the pellets were recovered but the
same have not been connected with the weapon. Thus, we
find there is a material contradiction in the oral evidence
adduced by the prosecution on one hand and the ballistic
report on the other.

 

20. In Brijpal Singh’s case, the High Court had affirmed the
conviction of the appellant therein. It was the case of
the prosecution that A-1 at the exhortation of A-3 shot the
deceased from point plank range on the head of the deceased
from a mouser gun which shattered the right side of the
head causing death on the spot. This Court, after
examining the ballistic report, opined that on a perusal of
the said report it was clear that the weapon alleged to
have been used in causing the fatal injury would not have
been the mouser gun carried by A-1 because the definite
report of the ballistic expert that the discharged empties
of cartridge found near the dead body were not that fired
from the mouser gun. The Court also took note of the fact
that A-2 therein who had fired which missed him but got
embedded in the wall of the house, according to the
ballistic report the embedded cartridges could have been
fired from the mouser gun and not from a .12 bore gun which
was used for firing. This was treated as a serious
contradiction between the oral evidence and the ballistic
report. Be it noted, a contention was advanced by the
learned counsel for the State that if the oral evidence is
found to be acceptable by the court any contradiction to
the ballistic reports, the acceptable oral evidence should
always be preferred. Dealing with the contention the court
agreed with the argument by stating that normally, if the
eye witness’s evidence is acceptable, the argument of the
State would be accepted but as the factual position
revealed the witnesses were interested persons and
independent witnesses had not been examined and further
there was inter se contradiction in the evidence of certain
eye witnesses. Eventually, the Court while acquitting the
appellant therein observed thus: –

 

“Then, we notice the prosecution has not bothered to
clarify the report of the ballistic expert even
though the same was contradictory to the oral
evidence which creates a very serious doubt in our
mind as to the presence of eye-witnesses at the place
of incident. Keeping in mind the partisan nature of
eye-witnesses and contradictions in their evidence,
we think this appellant is also entitled to benefit
of doubt.”

 

21. In the instant case, the ballistic report, Ext. P.UU,
though refers to the mutilated pellets stated to have been
recovered from the body of the deceased Kamla and also the
two different leads pellets from the body of Murti, but is
not definite that .12 bore DBBL gun, Ext. W/1, that was
seized from the appellant, was used for firing such
gunshots. This fact has been totally ignored by the High
Court in an extremely cryptic manner.

 

22. At this juncture, we may note with profit another aspect
that has been highlighted by the learned counsel for the
respondent. The prosecution has not examined Chander,
husband of the deceased, a relevant eye witness, Bala,
Murti and Bimla, three other injured witnesses. No
explanation has been given by the prosecution. Though
there have been certain suggestions to PW-16 in the cross-
examination, but his answer is evasive. It is well settled
in law that non-examination of the material witness is not
a mathematical formula for discarding the weight of the
testimony available on record howsoever natural,
trustworthy and convincing it may be. The charge of
withholding a material witness from the court levelled
against the prosecution should be examined in the
background of the facts and circumstances of each case so
as to find whether the witnesses are available for being
examined in the court and were yet withheld by the
prosecution. (See: State of H.P. v. Gian Chand[19])

 

23. In this context, we may also note with profit a passage
from Takhaji Hiraji v. Thakore Kubersing Chamansing[20]: –

 

“19… It is true that if a material witness, who would
unfold the genesis of the incident or an essential part
of the prosecution case, not convincingly brought to
fore otherwise, or where there is a gap of infirmity in
the prosecution case which could have been supplied or
made good by examining a witness who though available
is not examined, the prosecution case can be termed as
suffering from a deficiency and withholding of such a
material witness would oblige the court to draw an
adverse inference against the prosecution by holding
that if the witness would have been examined it would
not have supported the prosecution case. On the other
hand if already overwhelming evidence is available and
examination of other witnesses would only be a
repetition or duplication of the evidence already
adduced, non-examination of such other witnesses may
not be material. In such a case the court ought to
scrutinize the worth of the evidence adduced. The
court of facts must ask itself – whether in the facts
and circumstances of the case, it was necessary to
examine such other witness, and if so, whether such
witness was available to be examined and yet was being
withheld from the court? If the answer be positive
then only a question of drawing an adverse inference
may arise. If the witnesses already examined are
reliable and the testimony coming from their mouth is
unimpeachable the court can safely act upon it,
uninfluenced by the factum of non-examination of other
witnesses.”

 

24. Recently in Manjit Singh and Anr. v. State of Punjab and
Anr.[21], this Court, after referring to earlier decisions,
has opined thus: –

 

“…it is quite clear that it is not the number and
quantity but the quality that is material. It is the
duty of the Court to consider the trustworthiness of
evidence on record which inspires confidence and the
same has to be accepted and acted upon and in such a
situation no adverse inference should be drawn from
the fact of non-examination of other witnesses. That
apart, it is also to be seen whether such non-
examination of a witness would carry the matter
further so as to affect the evidence of other
witnesses and if the evidence of a witness is really
not essential to the unfolding of the prosecution
case, it cannot be considered a material witness (see:
State of U.P. v. Iftikhar Khan and others[22]).”

 

25. In the case at hand, non-examination of the material
witnesses is of significance. It is so because PW-11 is
really an interested witness though the High Court has not
agreed with the same. It appears from the material brought
on record that he had an axe to grind against the
appellant. That apart, Chander, who was present from the
beginning, would have been in a position to disclose more
clearly about the genesis of the occurrence. He is the
husband of the deceased and we find no reason why the
prosecution had withheld the said witness. Similarly, the
other three witnesses who are said to be injured witnesses
when available should have come and deposed. Therefore, in
the obtaining factual matrix that their non-examination
gains significance.

 

26. In this regard, another aspect requires to be taken note
of. The case of the prosecution was that Mohinder Singh
had snatched away the gun and fired at Mithan Singh and
Bimla. The learned trial Judge disbelieving the
prosecution version had acquitted him. The High Court has
given him benefit of doubt. We are of the considered
opinion that regard being had to the totality of evidence,
both oral and documentary, there was no reason to extend
the said benefit of doubt to the appellant. The High Court
has fallen into error on that score.

 

27. In view of the aforesaid analysis, the appeal is allowed,
the judgment passed by the High Court is set aside and that
of the learned trial Judge is restored. As the appellant
is on bail, he be discharged of the bail bonds.

 
……………………………….J.
[K.S. Radhakrishnan]

 
……………………………….J.
[Dipak Misra]
New Delhi;
October 24, 2013.

 

———————–
[1]

 

[2] AIR 1934 PC 227
[3]

 

[4] (2002) 9 SCC 408
[5]

 

[6] 2012 (10) SCALE 378
[7]

 

[8] (2011) 11 SCC 140
[9]

 

[10] (1975) 4 SCC 497
[11]

 

[12] (2003) 11 SCC 219
[13]

 

[14] (2009) 11 SCC 334
[15]

 

[16] AIR 2004 SC 2329
[17]

 

[18] AIR 1957 SC 216
[19]

 

[20] (1970) 2 SCC 450
[21]

 

[22] (1978) 4 SCC 371
[23]

 

[24] (1988) 2 SCC 557
[25]

 

[26] 1995 Supp (1) SCC 248
[27]

 

[28] (2002) 4 SCC 85
[29]

 

[30] (2007) 3 SCC 755
[31]

 

[32] (2008) 3 SCC 795
[33]

 

[34] (2013) 5 SCC 705
[35]

 

[36] (2011) 8 SCC 65
[37]

 

[38] (2001) 6 SCC 71
[39]

 

[40] (2001) 6 SCC 145
[41]

 

[42] JT 2013 (11) SCALE 394
[43]

 

[44] (1973) 1 SCC 512

 

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