Penal Code, 1860 :
ss. 302 and 120B – Prosecution under – Conviction of three of the four accused by trial court, relying on two eye-witnesses – In appeal, High Court acquitted all the accused – Appeal to Supreme Court – Held : There are material inconsistencies in the version of eye-witnesses – There is also discrepancy between the medical evidence and oral evidence – There are material lapses in the investigation – Such discrepancies raise serious doubt about the prosecution case – Accused were rightly acquitted by High Court. Constitution of India :
Art. 136 – Jurisdiction under – Scope of – Held : In exercise of power u/Art. 136, the Court would not ordinarily interfere with the findings of High Court unless it is satisfied that such a finding is vitiated by some glaring infirmity in the appraisement of evidence or such finding is perverse or arbitrary.
Dismissing the appeals, the Court
HELD: 1. As per the complaint/FIR and also the statement of PW-1, after his morning walk and after relieving himself while he was coming back home, he saw the respondents-accused Nos.1, 2 and 4 sitting in the flour mill of accused No.3 with arms in their possession. Case of the prosecution is that there was previous enmity between the family of appellant and accused No.2 which was the cause of murder of the deceased. When that being the motive and if the accused were so found armed with weapons in the flour mill of accused No. 3, the question arises as to why the appellant sent his brother-deceased to purchase gutkha from the shop. This has not been explained by the appellant. [Para 15][1066-E-F]
2. If the accused were looking for vengeance from brother of the complainant (PW1) and the deceased, why the respondentsaccused allowed the complainant (PW1) to let go unharmed; more so, when PW-1 was normally in the habit of going for morning walk. If the motive for the crime is accepted, then all the brothers would be targets; but here attack was on only the deceased brother and PW-1 was spared although attackers were fully armed and near the place of occurrence. Case of the prosecution does not appear to be natural that the respondents-accused Nos.1, 2 and 4 have attacked the deceased who happened to pass through the flour mill by chance after purchase of gutkha. [Para 16] [1067-B-C]
3. PW-3 stated that on the date of occurrence, he along with another person had gone to the house of complainant (PW1) to discuss about the electric decoration work for the marriage ceremony of daughter of someone in their mohalla. Admittedly, the deceased was the electrician by profession who was to attend to the electric work and the decoration. It is not explained as to why the deceased who was to attend to the electric work and the decoration work, instead of discussing the need of the prospective clients i.e. PW-3, would go out to purchase gutkha. Curiously, the person (the actual client) did not accompany PW-3 and the other person to the house of the deceased for discussion. This raises serious doubts about the presence of PW-3 in the scene of occurrence and the case of the prosecution. [Para 17] [1067-D-F]
4. As per the deposition of PW-1, there was a goomty from which gutka could be purchased, at a distance of just fifteen steps from the house of the appellant and the shop from where the deceased had gone to buy the gutkha was at a distance of about 150-200 steps; again said 100-125 steps from the house of the appellant. It has nowhere been stated when the deceased could not have gotten gutkha right near his house and why should he go to a shop at some distance away from the house. PW-1 firstly stated that he gave money to the deceased going to purchase gutkha, however subsequently, he stated that in the shop credit account was maintained. The reason stated for deceased going at a little bit far away place to purchase gutkha leaving his prospective clients for decoration of electric work is not quite convincing. [Para 18] [1067-G-H; 1068-A]
5. The High Court observed that PW-3 was a chance witness and expressed doubts about the presence of PW-3 in the scene of occurrence and there is no good reason to take a different view. [Para 19] [1068-D]
6. There are several material discrepancies between the evidence of PW-1 and PW-3 as to the occurrence. The Court is conscious of the well settled position that the minor discrepancies not touching upon the core of the prosecution case, would not affect the credibility of the witnesses or the prosecution case. Of course, PWs 1 and 3 have given their evidence in the court nearly after a decade; but they are said to have witnessed the occurrence from a close distance. Whether there was scuffle between the deceased and the respondents-accused is an integral part of the main incident and the witnesses are expected to be consistent in their version. The inconsistencies in the version of PWs 1 and 3 as to whether there was a scuffle or not is not explained by the prosecution which again raises serious doubts about the prosecution case. [Para 20] [1068-E-H; 1069-A]
7. As per post-mortem report, there were four firearm lacerated wounds. PWs 1 and 3 have not explained the fourth firearm injury; nor they have made any mention of the accused firing multiple shots. This discrepancy between the medical evidence and the oral evidence assumes significance in view of the elaborated depositions made by the witnesses and the FIR which explains minute detail of the entire incident.[Para 21] [1069-B-C]
8.1. There are also several lapses in the investigation of the case like non-recovery of “empties” fired from the guns on the deceased, non-recovery of fire arms used by the respondentsaccused etc. It is well-settled that any omission on the part of the Investigating Officer cannot go against the prosecution case. If the Investigating Officer has deliberately omitted to do what he ought to have done in the interest of justice, it means that such acts or omissions of Investigating Officer should not be taken in favour of the accused. The prosecution case of course, cannot be doubted merely on the ground of non-recovery of weapons and other piece of evidence. But in the present case, an elaborately written FIR was registered immediately after the occurrence. When the Investigating Officer had taken care even to recover packet of kissan gutkha from the scene of occurrence, curiously, the “empties” of the fired cartridges were not recovered. The material pieces of evidence like “empties” were lost; but this vital omission has not been explained. This factum assumes importance particularly, in view of the fact that the FIR is alleged to have been registered promptly. Any act of commission/omission of the Investigating Officer cannot go to the advantage of the accused. But in a case of this nature where FIR is said to have been registered within half an hour of the occurrence and the investigation also commenced then and there, there is no reason as to why the “empties” and “bursts” from the scene of occurrence were not recovered.[Para 22] [1069-D-H]
8.2. Furthermore, as per the evidence of Investigating Officer (PW-5), the accused were arrested on the very next day of occurrence. Despite that, the weapons used by them were not recovered. Of course, the case of the prosecution has to be examined de hors such omissions of the Investigating Officer like non-recovery of weapons etc. But material discrepancies in the evidence of PWs 1 and 3 coupled with the unnaturalness of the prosecution case, non-recovery of weapons and empties raise serious doubts about the prosecution case. [Para 23] [1070-E]
9. The duty of the appellate court is to consider and appreciate the evidence adduced by the prosecution and arrive at an independent conclusion. Like the trial court, the appellate court also must be satisfied of its conclusion. In exercise of power under Article 136 of the Constitution of India, the Supreme Court would not ordinarily interfere with the findings of the High Court unless it is satisfied that such a finding is vitiated by some glaring infirmity in the appraisement of evidence or such finding is perverse or arbitrary. In the present case, the High Court has analysed entire evidence and recorded its finding as to how the trial court has gone wrong in not appreciating the material inconsistencies in the prosecution case. The findings recorded by the High Court in acquitting the respondents-accused Nos.1,
2 and 4 does not suffer from any infirmity warranting interference with the impugned judgment. The appeals filed by the complainant and the State of Uttar Pradesh are liable to be dismissed. [Para 24] [1071-F-H; 1071-A-B]
State of Uttar Pradesh v. Punni and Others (2008) 11 SCS 153 : [2008] 1 SCR 85 –relied on.
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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