Penal Code, 1860: ss. 302/34 – Four accused – Acquittal by Trial Court – During pendency of State’s appeal before High Court, accused no. 1 to 3 died – Reversal of acquittal of fourth accused by High Court – Appeal against conviction – Held: Prosecution witnesses fully supported the case of prosecution – It was established and proved by prosecution by leading evidence that the incident had taken place on the road near Primary Pathshala – The dead body was recovered from the road near the Pathshala and blood stained clothes were also recovered from that place – Thus prosecution proved the place of incident as stated in the FIR – PW4 was eye-witness – He was found to be trustworthy and reliable – In view of clinching evidence of eyewitnesses, mere non-examination of some of the witnesses/independent witnesses and/or in absence of examination of any independent witnesses would not be fatal to prosecution case – Appellant-accused no. 4 was named right from the beginning in the FIR – He was attributed specific role – The same was established and proved from the evidence of PW-4 – In the facts and circumstances of the case, and on re-appreciation of the evidence, High Court came to conclusion that findings recorded by trial court while acquitting the accused were perverse and even contrary to the evidence on record and/or misreading of the evidence – No reason to interfere with the order of High Court.
Dismissing the appeal, the Court
HELD: 1. Each and every ground on which trial court acquitted the accused has been elaborately dealt with by the High Court and on reappreciation of the entire evidence on record the High Court specifically came to the conclusion that the findings recorded by the trial Court were perverse and thereafter the High Court interfered with the judgment and order of acquittal passed by the trial Court. The High Court rightly observed that when there is a direct evidence in the form of eyewitnesses and the eyewitnesses are trustworthy and reliable, absence of motive is insignificant. In the present case, in the 313 statement itself, the appellant- original accused no.4 also stated that there was an enmity. Therefore, even according to the accused also, there was an enmity. [Paras 8 and 9][592-D-F]
Manjit Singh v. State of Punjab (2019) 8 SCC 529 : [2019] 11 SCR 554; Surinder Kumar v. State of Punjab (2020) 2 SCC 563 : [2020] 1 SCR 307; Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627; State of H.P. v. Pardeep Kumar (2018) 13 SCC 808 : [2018]
2 SCR 656 – relied on.
2.1 The prosecution witnesses fully supported the case of the prosecution, more particularly PW2 & PW4 and they are found to be trustworthy and reliable, non-examination of the independent witnesses is not fatal to the case of the prosecution. Nothing is on record that those two persons, as mentioned in the FIR reached the spot were mentioned as witnesses in the chargesheet. In any case, PW2 & PW4 fully supported the case of the prosecution and therefore non-examination of the aforesaid two persons shall not be fatal to the case of the prosecution. [Para 11][593-D-F]
Dashrath Singh v. State of U.P. (2004) 7 SCC 408 : [ 2004] 3 Suppl. SCR 561; Takhaji Hiraji v. Thakore Kubersing Chamansing (2001) 6 SCC 145 – referred to.
2.2 The investigating officer -PW7 in his examination-inchief specifically stated that when they tried to arrest the said accused at 4:00 a.m. in the early morning near the bridge, the said accused tried to run away; after scuffle he was arrested and that during that scuffle and arrest, he sustained injuries. A suggestion was put to him in the cross-examination that at the time of arrest the accused ‘M’ did not receive any injury, however, the same has been specifically denied that it is not true that he did not receive injury at the time of his arrest. Similar suggestions were made to other witnesses and the same were denied. Therefore, as such, it cannot be said that the prosecution failed to explain the injury on the said accused. Even the aforesaid aspect was considered in detail by the High Court and the said statement was appreciated by the High Court on re-appreciating the entire evidence on record, more particularly the medical evidence and even the deposition of the doctors examined by the prosecution as well as by the defence. [Para 12][593-G-H; 594-A-B]
3.1 The place of occurrence of the incident has been established and proved by the prosecution as per the case of the prosecution. The accused have failed to lead any evidence that the incident had occurred near the door of the house of one of the accused. Even the place of incident suggested by the accused, if the Panchnama is concerned, it does not support the case of the defence. The aforesaid aspect has been elaborately dealt with by the High Court in the impugned judgment. It was established and proved by the prosecution by leading the evidence that the incident had taken place on the road near Primary Pathshala. The dead body was recovered from the road near Primary Pathshala and the blood stained Gamchha and tahmad were also recovered from that place. On the point of place of recovery of the dead body and recovery of the blood stained etc. is unchallenged. Therefore, the prosecution has proved the place of incident as stated in the FIR. [Para 13][596-A-D]
3.2 Now so far as one another ground assigned by the trial Court while acquitting the accused that there was no firearm injury on the person of the deceased and therefore the medical evidence is inconsistent with the ocular testimony is concerned, it is required to be noted that it was never the case of the prosecution that there was a firearm injury on the person of the deceased. Even as per the evidence of the witnesses, when after sustaining the injuries of lathi and spear, the deceased fell down on the earth when other persons started coming and while leaving from that place, one of the accused Ramraj Pathak fired his pistol towards the deceased. It was never the case of the witnesses that bullet hit the deceased. On the contrary, PW2 has specifically stated that the deceased has not sustained any firearm injury, although Ramraj Pathak has fired at him. The depositions of PW2 & PW4 who can be said to be the star witnesses and they are the eyewitnesses to the incident. PW-4 is found to be trustworthy and reliable. His deposition is consistent with the allegations in the FIR. There is no reason to doubt his trustworthiness. Therefore, even the appellant can be and is rightly convicted relying upon the deposition of PW4, who is an eyewitness to the incident. The appellant – original accused no.4 was specifically named right from the very beginning in the FIR. He has been attributed the specific role. The same has been established and proved from the evidence of PW4. No error has been committed by the High Court in interfering with the judgment and order of acquittal passed by the trial Court. [Paras 14, 15, 17][596-E-H; 597-C, H; 598-A]
Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC
228 : [1978] 2 SCR 471; Babu v. State of Kerala (2010)
9 SCC 189 : [2010] 9 SCR 1039; Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10 : [1998]
3 Suppl. SCR 594; Vijay Mohan Singh v. State of Karnataka (2019) 5 SCC 436 : [2019] 6 SCR 994; Atley v. State of Uttar Pradesh AIR 1955 SC 807; K.Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355 : [1979] 2 SCR 363 – 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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