Penal Code, 1860 – ss.147, 148, 149 and 302 – Murder – Acquittal of accused by the High Court – Prosecution case was that PW-1, his father, mother and maternal uncle-PW-4 were going on a tractor and PW-2 was following them on a cycle – Father of PW-1 was driving the tractor, when they found that a bullock cart had blocked their passage – The tractor stopped near the bullock cart – The accused persons, who were hiding, armed with pistols and other sharp-edged weapons attacked father of PW-1 – Consequent to which, father of PW-1 died – FIR was lodged u/ss. 147, 148, 149 and 302 IPC – The Trial Court convicted accused persons u/s.302 r/w. ss.148 and 149 IPC – However, High Court acquitted the accused – On appeal, held: There were material variations in the evidence of PW-1 and PW-2 – There were contradictions in the evidence of PW-1 and PW-2 as to who wrote the report in the police station – PW-1 stated that he, his mother, maternal uncle and one ‘IS’ went to the police station and report was written by ‘IS’ – There was no mention of PW-2 by PW-1, however, PW-2 stated that he had also gone to the police station and stated in his cross-examination that report was written by PW-1 – PW-4, one of the witness, turned hostile – PW-1, his mother, PW-4 and PW-2 after the incident did not rush to the hospital with the victim and post-mortem report revealed that the body reached the hospital next day in the afternoon – These aspects strengthened the judgment of the High Court – Another contradiction came from the testimony of PW-2, who stated that one of the accused fired the shot from behind after climbing in the tractor which had struck at the back of deceased whereas PW1 deposed that all the accused stood at front and all three had fired the shot – The gunshot injury no.4 at the back of deceased remained unexplained – Further, no role was attributed to the two accused persons, however, when evidence opened PW-1 had gone on to attribute specific overt act to them also – PW-2 had also stated that he and other relatives had left the tractor at spot and had not taken it to the police station to lodge the report as the dead body was on it – On the other hand, according to PW-5-investigating officer, the site of the dead body was the paddy field – Considering the apparent variations in the evidence, the appellant was not able to make out a case to interfere with the judgment of the High Court – Resultantly, appeals were dismissed.
Law of Evidence – Medical and ocular evidence – discussed. Dismissing the appeals, the Court
HELD: 1. The incident allegedly unfolded when the deceased along with PW1, his wife, and brother-in-law (PW4) were coming back in a tractor. The case of the prosecution further is that the accused came forward and committed the acts attributed to them. There is an allegation that some relatives accompanying the deceased were sitting on the mudguard of the tractor. There is a case for the prosecution that the deceased fell from the tractor when PW1 was asked how he went to the Police Station to lodge the report and whether he had taken the tractor, his answer was that since the body of his father was lying on it, they did not take the tractor and they went on foot. Therefore, it must be taken that the body was on the tractor. PW5-the Investigating Officer, on the other hand, deposed that the dead body of the deceased was lying in the paddy field at the side of the road. PW5-original Investigating Officer does not speak a word about the tractor. According to PW1, the tractor was left behind as the dead body was lying on it. As noted, PW5 speaks otherwise and the dead body was found at the paddy field at the side of the road. Whether, therefore, the tractor was in fact used as claimed by the prosecution? There is no evidence regarding any investigation conducted by the Officer in regard to the tractor. The nature and size of the tractor remains a mystery. [Para 42][363-D-H]
2. There are contradictions in the evidence of PWs 1 and 2 as to who wrote the report. Did PW1 himself write the report as claimed by PW2 in his cross-examination or was it written by ‘IS’, who according to PW1 wrote the report? There are contradictory answers given by PWs 1 and 2. [Para 43][364-A]
3. If the incident had happened, as projected by the prosecution, and PW1, his mother and PW4 were accompanying the deceased apart from PW2 and other cyclists, would they not immediately rush the body to the nearest hospital? In fact, from the post-mortem report, it would appear that the body reached the hospital only next day in the afternoon. These aspects create doubts in our minds and strengthens the judgment of the High Court further. [Para 45][364-E-F]
4. The doubt arises about the prosecution version from the oral testimony itself. As noticed already, PW1 is already unambiguous when he states that all the accused came at front and all the three had fired the shots. The firing, PW1 was specific, was done from the front. He claims that other people climbed on the tractor. This can mean that the people who had not done the firing and who were otherwise armed according to his version, climbed on the tractor. In his earlier version, in the chief examination, he, on the other hand, states that when his father fell down, the accused armed with pistols and the other sharp edged weapons assaulted his father. This itself manifests a contradiction. [Para 47][364-H; 365-A-B]
5. The real contradiction comes in the form of testimony of PW2. PW2 states that one of the accused ‘R’ fired the shot from behind after climbing in tractor which had struck at the back of deceased whereas PW1 has deposed that all the accused came stood at front and all the three had fired the shot. This is an inconsistency which goes to the root of the matter. If the above version of PW1 is believed, it is the deposition of PW2 which comes under a cloud. More importantly, injury no.4, viz., the gunshot injury at the back remains unexplained. For this, this Court does not have to go into the contents of the medical evidence. It is not doubt true that that the medical evidence also points to the injury no.4 being sustained by the deceased on his back side. [Para 49][365-E-F]
6. It is to be noted that in the FIR, ‘R’ is stated to have fired the shot which struck at the back of the deceased. No role has been attributed in the FIR to the two accused persons whereas when the evidence opened, PW1 has gone on to attribute specific overt acts to them also. While a FIR is not to be an encyclopaedia of all that transpired, the omission to mention about actual overt acts to the specific two accused, creates serious doubt about the version. Further, PW2 also stated that they had left the tractor at the spot and had not taken it to the Police Station to lodge the report as the dead body was on it. On the other hand, the site of the dead body is the paddy filed, according to PW5. The tractor is not referred to by PW5. [Paras 50 and 51][366-C-E]
7. As regards the deceased falling down on being shot at and assaulted, PW5 would state that PW1 did not tell him anything (apparently, in the 161 statement about the fact of the deceased falling down).[Para 52][366-F]
8. In the state of evidence, in this case otherwise, as discussed, particularly bearing in mind the nature of the limited jurisdiction this Court exercises qua the order of acquittal rendered by the High Court, the appellant has not made out a case in interfering with the impugned judgment of the High Court. [Para 57][367-G]
The State Government, Madhya Pradesh v. Ram Krishna Ganpatrao Limsey and others AIR 1954 SC 20; State of Uttar Pradesh v. Guru Charan and others (2010) 3 SCC 721 : [2010] 2 SCR 1110 – relied on.
Gosu Jayrami Reddy and another v. State of Andhra Pradesh (2011) 11 SCC 766 : [2011] 9 SCR 503;
Mangoo v. State of Madhya Pradesh AIR 1995 SC 959; Abdul Sayeed v. State of Madhya Pradesh (2010) 10 SCC 259 : [2010] 13 SCR 311; Tehseen Poonawalla v. Union of India and another (2018) 10 SCC 498 : [2018]
12 SCR 204 – 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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