Penal Code, 1860 – s. 302 r/w s.149, s.307 r/w s.149 and s.148 – Arms Act, 1959 – ss.25 and 30 – Code of Criminal Procedure, 1973 – s.293 – Murder of five persons – Seven accused – The deceased belonged to or were associated with the same family; two of them were brothers, the third was their minor son and the other two were their close family friends – Trial Court acquitted all the accused – Appeal against acquittal – High Court reversed the findings of the trial court and convicted all the accused under ss.148,
302 read with 149, 307 read with 149 of the IPC, and sentenced them to life imprisonment – Propriety of – Held: High Court was justified in exercising its appellate jurisdiction in reversing the order of acquittal as there were certain glaring mistakes, and distorted conclusions in the decision of the Trial Court – High Court was duty-bound to reverse the decision as there existed very substantial and compelling reasons to do so, failing which it would have caused a grave miscarriage of justice – Prosecution proved the presence of PW-1 at the place of occurrence and of him being an injured eye-witness to the incident – Facts narrated in the FIR were fully corroborated by much of the documentary evidence and were fully in consonance with the testimony of the prosecution witnesses – The High Court was correct in rejecting the submission that the prosecution failed to prove a common object and unlawful assembly – The arrests of A6, A10, A7 and A8 were concurrently and consistently spoken by all the witnesses, PW-10, PW-11 and PW-12 – Conclusion drawn by trial court that the arrest and recovery were doubtful were glaring mistakes – Rejection of the FSL (ballistic) report was another grave mistake of the Trial Court – Conclusion of Trial Court that the ballistic report was inadmissible as it is not in consonance with the requirement of s.293 Cr.P.C. was entirely wrong – The ballistic report was in complete compliance of the statutory provision – High Court had to necessarily step in to prevent a grave miscarriage of justice.
Appeal – Appeal against acquittal by trial court – Jurisdiction of the High Court – Discussed.
Criminal Law – Motive – Sufficiency or insufficiency of motive does not have a direct bearing on the actual evidence against the accused, particularly when the prosecution relies on direct evidence of injured eyewitnesses.
Criminal Law – Investigation – Defective investigation by investigating authorities by itself does vitiate the case of the prosecution when there are credible eye-witness testimonies as well as other compelling pieces of evidence.
Evidence – Witness – Testimony of injured eye-witness – Appreciation – Held: When there are credible ocular witnesses whose statements are corroborated by other contemporaneous evidence, certain minor variations, such as non-recovery of blood-stained clothes, certain other weapons etc. will not be fatal to the case of the prosecution.
Code of Criminal Procedure, 1973 – s.293 – Statutory requirement under – Compliance – FSL (ballistic) report – On facts, the report came from the office of the Assistant Director of a Forensic Lab bearing his seal – Conclusion of the Trial Court that the ballistic report was inadmissible as it was not in consonance with the requirement of Section 293 Cr.P.C., is entirely wrong – Ballistic report was in complete compliance of the statutory provision – Trial Court erred in rejecting the ballistic report.
Dismissing the appeals, the Court
HELD: 1. In the instant case, the High Court was justified in exercising its appellate jurisdiction in reversing the order of acquittal as there were certain glaring mistakes, and distorted conclusions in the decision of the Trial Court. The High Court was duty-bound to reverse the decision as there existed very substantial and compelling reasons to do so, failing which it would have caused a grave miscarriage of justice. [Para 174][1109-C]
2. Even though the prosecution placed material to establish the existence of a motive on the part of the accused party to murder five members of the Shukla family and associates, the motive part is treated secondary in view of the fact that this is a case of direct evidence of injured eye-witnesses. [Para 174][1109D-E]
3. The place of the incident is not disputed. In fact, the Trial Court itself returned findings about the first as well as the second event of the incident. These findings were affirmed by the High Court. Therefore, the only question related to the persons involved and the manner of commission of the offence. [Para 174][1109-E-F]
4. Having examined the contentions relating to (a) discrepancies in the number of dead bodies brought to the hospital
(b) improbability of the time taken to prepare the tehreer (c) alleged omissions in the FIR (d) and the discharge timing mentioned in the Bed Head Ticket, casting doubt on the time of lodging the FIR, it is found that the prosecution has explained all the discrepancies beyond a reasonable doubt. The conclusions of the Trial Court were based on surmises and conjectures, and therefore, the High Court is justified in reversing the judgment of the Trial Court. [Para 174][1109-G-H; 1110-A]
5. Having considered the four submissions in support of the contention that PW-1 and PW-2 are not the eyewitnesses to the incident, being (a) discrepancy on the bullets marks on the jonga, (b) bullet injuries on the deceased and eyewitnesses on the basis of PW-1 statement, (c) timing of the X-ray and Bed Head Ticket, and (d) evidence relating to the failure of electricity at the time of the incident, it is found that these submissions are contrary to evidence on record. The prosecution has proved the presence of PW-1 at the place of occurrence and of him being an injured eye-witness to the incident. The inferences drawn by the Trial Court were based on a misreading of the evidence, and therefore, the High Court was obliged to reverse the finding to prevent a grave miscarriage of justice. [Para 174][1110-B-C]
6. Having examined the alternative story of the defence based on the fax, said to have been sent from the office of the SP and introduced through the defence witness DW-3, it is clear that the facts mentioned in the fax are not supported by any evidence. On the contrary, the facts narrated in the FIR are fully corroborated by much of the documentary evidence and are fully in consonance with the testimony of the prosecution witnesses. As there is no evidence to corroborate the events mentioned in the fax and the evidence of DW-3 does not inspire confidence, to say the least. The conclusion of the Trial Court that the prosecution could not prove the case is totally erroneous. Such a finding is a glaring mistake as held by this Court in Chandrappa and Ors. v. State of Karnataka obligating the High Court to interfere with an order of acquittal. [Para 174][1110-D-F]
7. The High Court was correct in rejecting the submission that the prosecution failed to prove a common object and the unlawful assembly. The decision of the High Court on this issue is unexceptionable on fact and law. [Para 174][1111-A-B]
8. The conclusion of the Trial Court about the recovery of the weapon is based on a perverse finding as it misunderstood the 8x60-bore rifle to be distinct from a 0.315 bore rifle. The technical material prove beyond doubt that there is no difference at all. The distinction is only in the measurement system, one being British and the other being the Continental system. In view of such a perverse finding, the High Court had very substantial and compelling reasons to reverse the findings of the Trial Court. [Para 174][1111-B-D]
9. The arrests of Naseem (A6), Bhan Singh (A10), Shyam Singh (A7) and Sahab Singh (A8) were concurrently and consistently spoken by all the witnesses, PW-10, PW-11 and PW12. The conclusion drawn by the Trial Court that the arrest and recovery were doubtful were glaring mistakes. The High Court was, therefore, completely justified in reversing the decision of the Trial Court. [Para 174][1111-D-E]
10. The rejection of the FSL (ballistic) report is another grave mistake of the Trial Court. The conclusion of the Trial Court that the ballistic report is inadmissible as it is not in consonance with the requirement of Section 293 Cr.P.C. is entirely wrong. The ballistic report is in complete compliance of the statutory provision. The High Court had to necessarily step in to prevent a grave miscarriage of justice. [Para 174][1111-F-G]
M.G.Agarwal v. State of Maharashtra [1963] 2 SCR
405 – followed.
Chandrappa and Ors v. State of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630; Ghurey Lal v. State of UP (2008) 10 SCC 450 : [2008] 11 SCR 499; Amzad Ali Alias Amzad Kha and Ors v. State of Assam (2003) 6 SCC 270; Bhargavan and Ors v. State of Kerala (2004)
12 SCC 414 : [2003] 5 Suppl. SCR 535; Bhupendra Singh and Ors v. State of U.P. (2009) 12 SCC 447 : [2009] 6 SCR 262 and State of Himachal Pradesh v. Mast Ram (2004) 8 SCC 660 : [2004] 4 Suppl. SCR 269 – relied on.
State of U.P. v. Gokaran and Ors (1984) Supp SCC 482; Masalti v. State of U.P. [1964] 8 SCR 133; Praveen Kumar v. State of Karnataka (2003) 12 SCC 199; Menoka Malik and Ors v. State of West Bengal and Ors (2019) 18 SCC 721 : [2018] 10 SCR 707; N.
Vijaykumar v. State of Tamil Nadu (2021) 3 SCC 687; Nawab Ali v. The State of U.P. (1974) 4 SCC 600 : [1974] 3 SCR 734; State of Rajasthan v. Shiv Charan and Ors. (2013) 12 SCC 76 : [2013] 8 SCR 336; Shivaji Genu Mohite v. The State of Maharashtra (1973) 3 SCC 219; State of Uttar Pradesh v. Kishanpal and Others (2008) 16 SCC 73: [2008] 11 SCR 1048; Sheo Shankar Singh v. State of Jharkhand and Anr. (2011) 3 SCC
654 : [ 2011] 4 SCR 312; Darbara Singh v. State of Punjab (2012) 10 SCC476 : [2012] 7 SCR 541; Rammi Alia Rameshwar v. State of M.P. (1999) 8 SCC 649 : [1999] 3 Suppl. SCR 1; Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 : [2010]
13 SCR 311; Rajendra Alia Rajappa & Ors v. State of Karnataka (2021) 6 SCC 178; Rana Pratap and Ors. v. State of Haryana (1983) 3 SCC 327; Karnel Singh v. State of M.P.(1995) 5 SCC 518 : [1995] 2 Suppl. SCR 629; C. Muniappan and Others v. State of Tamil Nadu (2010) 9 SCC 567 : [2010] 10 SCR 262; Saddik alias Lalo Gulam Hussein Shaikh and Ors v. State of Gujarat (2016) 10 SCC 663 : [2016] 5 SCR 421; Lakshman Singh v. State of Bihar (2021) 9 SCC 191 and M Nageswara Reddy v. State of AP 2022 SCC OnLine SC 268 – referred to.
W.H.B. Smith, Mauser Rifles and Pistols (The
Stackpole Company, Pennsylvania, United States of America, 4th edn, 1954, pg nos. 156,157) – referred to.
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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