Penal Code, 1860 – ss.302,120B and 34 – Arms Act, 1959 – ss.25,27 – Acquittal under – Prosecution case was that victimdeceased had political enmity with three accused (A-1, A-2 and A3) – All three accused hatched a conspiracy to away with the victim – Accused no.1 and accused no.2 had used motorcycle of accused no.3 to arrive near a bus stand where a gun shot was fired at victim from a short distance – Victim died – Charge-sheet filed – Trial Court acquitted all the three accused – On appeal by the State, the High Court relying upon recovery made and on basis of sole testimony of PW2, affirmed the acquittal of A-3 but convicted the other accused persons for the offences punishable under s.302/34 IPC – On appeal, by A-1 and A-2 – Held: Prosecution has not came to the court with clean hands as the story is of prosecution is full of inconsistencies – The prosecution witnesses are contradictory to each other – Investigation was carried out in irregular manner – Testimony of PW-2 was not of sterling quality thus conviction based on his sole testimony is not tenable – There was no Panchnama on record and recoveries made are inconsistent with the record, therefore cannot be relied upon – Conviction set aside – Acquittal of A-1 and A-2 by the trial Court affirmed.
Allowing the appeals, the Court
HELD:1.The scope of interference in an appeal against acquittal is very limited. Unless the appellate court comes to a finding that the view taken by the Sessions Judge is either perverse or impossible, it will not be permissible to interfere with the finding of acquittal. Equally, if two views are possible and the appellate Court finds another view to be more probable, it cannot interfere with the order of acquittal unless it finds that the view taken by the learned Sessions Judge is an impossible view. [Para 12][88-D-E]
2. The prosecution has come out with three different versions. As per the Postmortem requisition, it is the accused No.3 who had shot the victim-deceased. As per the ocular testimony of P.W.2, which is relied on by the High Court, it is the accused No.1, sitting as pillion rider with accused No.2, who had shot the deceased; and the third version as per the Roznamcha,
11 persons had caught deceased and accused No.1 had fired at him with Katta. It is a case full of mysteries. According to P.W.2, his statement was only recorded on 23 rd June, 1991, which is corroborated by P.W.16- Assistant Sub-Inspector, Harda. Whereas according to P.W.17(the I.O.), the statements were recorded only on 26th and 27th June, 1991. The Postmortem requisition states that it is accused No.3, who had assaulted the deceased with Katta. P.W.16 states that he is not aware as to where the statements recorded by him on 23rd June, 1991 are kept. P.W.17 (the I.O.), admits that Dehati Naalis was prepared by Thanedar Bharti. However, the same was not produced with the case. He further admitted that the statements of some of the witnesses were against the prosecution and therefore the same have not been produced in the Court. [Para 33][95-A-D]
3. It is thus clear that the prosecution has failed to bring out the true genesis of the incident. The prosecution has not come to the Court with clean hands. The present case too is full of inconsistencies. The evidence of the witnesses is contradictory to each others’. The investigation is carried out in a totally irregular manner. As already discussed herein above, the testimony of P.W.2 itself cannot be said to be of sterling quality. The so-called recoveries are also totally untenable. [Para 34 and 38][95-E; 97-C]
4. In this view of the matter, the conviction of the appellants on the sole testimony of P.W.2 would not be tenable. The Division Bench of the High Court has relied on the recovery of the Motorcycle and the Katta, allegedly at the instance of the disclosure statement given by the accused No.1. Insofar as the recovery of Motorcycle is concerned, the said Motorcycle has been recovered at the instance of one ‘M’, son of ‘J’, i.e., son of the accused No.3, and that too on 25th June, 1991. As such, the finding of the High Court that it is recovered at the instance of the accused No.1 is inconsistent with the record. [Para 39][97D-E]
5. Insofar as the recovery of the Katta at the instance of the accused No.1 is concerned, it would reveal that both the arrest as well as the recovery are shown to be made approximately at the same time on 26th June, 1991. The distance between the Police Station and the place from where the alleged recovery is made is about 5 km. Apart from that, the recovery of Katta is from an open place, accessible to one and all. Furthermore, there is no Panchnama on record to show as to in what manner the said recovery was made. As such, the said recovery is also not free from doubt and could not have been relied on by the High Court. [Para 40][97-F-G]
Guru Dutt Pathak v. State of Uttar Pradesh (2021) 6 SCC 116; Dhanaj Singh alias Shera & Ors. v. State of Punjab (2004) 3 SCC 654 : [2004] 2 SCR 938; Anil Phukan v. State of Assam (1993) 3 SCC 282 : [1993] 2 SCR 389; Ramashish Rai v. Jagdish Singh (2005) 10 SCC 498; Sunil Kundu and another v. State of
Jharkhand (2013) 4 SCC 422 : [2013] 5 SCR 924 – 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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