MAHTAB SINGH & ANR. versus STATE OF U.P.

The judgment of acquittal passed by the IVth Additional Sessions Judge, Farrukhabad on December G 20, 2000 in Session Trial Nos. 48/91 and 49/91 came to be overturned by the Division Bench of High Court of Judicature ·-. at Allahabad vide its judgment and order dated May 27,-2005. High Court found both accused guilty of the offence punishable under Section 302 read with 34 1.P.C. and sentenced them to H A life imprisonment. Accused Mahtab Singh was found guilty of an offence under Section 4/25 Arms Act, 1959 as well and sentenced to six months rigorous imprisonment on this count. Aggrieved, the accused are in appeal by special leave.

pp. 853–854

Briefly put, the prosecution case is : Ganga Singh (deceased) and his brotherVinod (PW 1) owned a small Flour Mill at village Kampil. On September 28, 1990 at 9.0oP:M., while returning from the betel shop of Rajveer after purchasing bidi, a few steps away, at Tiraha Qunction of three roads), Mahtab Singh (A-1) and Jaipal (A-2) - father and son - met him. Ganga Singh demanded money due from Mahtab Singh. Mahtab Singh, however, rebuked him. Ganga Singh asked Mahtab Singh as to why he was rebuking when money was due and payable by him. Hearing this, Mahtab Singh asked his son Jaipal to catch and kill Ganga Singh. Jaipal caught hold of Ganga Singh; Mahtab Singh gave a knife blow to Ganga Singh due to which Ganga Singh fell down. Vinod (PW-1) and Ratiram (PW-2) who were sitting under the thatched roof near Flour Mill and one Asarfilal rushed towards the spot. On seeing them, Mahtab Singh and Jaipal ran away. Ganga Singh was sent to Primary Health Centre at Kayamganj with Asarfilal, Balbir, Shyam Singh and other family members. Vinod got the report written from one Charan Singh and went to Kampil police station. Based on that, First Information Report was registered under Section 307 IPC. Dr. G.K. Singh (PW-5), Medical F Superintendent, Primary Health Centre, Kayamganj sent an intimation at about 10.30 P.M. to the police station, Kampil about the death of Ganga Singh. The case was, thus, converted to Section 302 l.P.C.

p. 854

Singh Rampati Ram (PW-6), Sub-inspector, Kampil police station started investigation on September 29, 1990. He prepared the sketch map and also took one lantern in his possession. The challan of dead body was prepared and photo of dead body was also taken. The autopsy of dead body was conducted by Dr. Manohar Singhal, (PW-4). On September 29, 1990, at about 4.00P.M., A-1 was arrested. On his disclosure statement, blood stained knife, shirt and bandi are said to have been recovered from his house. Then, another case under Section 4/25 of the Arms Act, 1959 was registered against A- 1. The investigation of the case under Section 4/25 of the Arms Act was done by Sub-Inspector B.D. Chaudhary (PW-8). A-2 was also arrested on October 6, 1990.

pp. 854–855, margin G

After completion of investigation, two chargesheets came to be filed. One was filed against A-1 and A-2 under Section 302/34 IPC for the murder of Ganga Singh. The other chargesheet was filed against A-1 under Section 4/25 of the Arms Act. Both the Session Trials uncer Section 302 read with Section 34 IPC and under Section 4/25 of the Arms Act were taken up together.

p. 855, margin B

The trial court was of the opinion that prosecution failed to prove the charges against the accused persons beyond reasonable doubt. The trial court acquitted the accused mainly for the following reasons: (i) The testimony of PW-1 and PW-2 suffers from significant contradictions. While PW-1 stated in his evidence that Mahtab Singh stabbed Ganga Singh with a knife from back side, the deposition of PW-2 was that Mahtab Singh inflicted knife injury to Ganga Singh was from front side. (ii) Both the eye witnesses are interested witnesses. PW- 1 is a real brother of deceased and PW-2'is a deceased's co-brother. (iii) The identification of the accused persons by PW-1 and PW-2 in the dark night was highly improbable and doubtful. No evidence much less· reliable evidence of butning lantern and light from the electric bulb was produced. No evidence that it was moonlit night. (iv) Rajveer from whose shop Ganga Singh'purchased bidi '' has not been examined by prosecution; even his statement under Section 161 Cr.P.C. was not recorded. The burning lantern from his shop was not seized by the investigating officer. (v) The lantern which was seized from the shop of Balbir was not produced before the Court. (vi) The presence of PW-2 was highly unnatural. He is resident of Nagala Kulu. His statement that he came to Ganga Singh's Flour Mill for grinding at night (9.00 P.M.) does not inspire confidence as the Flour Mill is situated in different village. His conduct of leaving the place of occurrence immediately after the incident makes his presence at the time of incident highly doubtful. PW-2 neither accompanied Ganga Singh to the Primary Health Centre nor accompanied PW-1 to the police station. (vii) Asarfilal who was present at the time of incident and who accompanied Ganga Singh to Primary Health Centre has not been examined although his statement u/s 161 Cr.P.C. was recorded. (viii) The recovery of knife, shirt and bandi (all blood stained) from the house of A-1 at 4.30 P.M. immediately after his arrest at 4.00 P.M. on 29.09.1990 is highly doubtful as police raided the house of A-1 from 6.00 AM. to 3.30 P.M. on September 29, 1990 number of times and offending article was not found. No memo of disclosure statement of A-1 prepared.

pp. 855–856, margin D

The High Court, in appeal, however, formed entirely different opinion. The High Court principally recorded the following reasons for upsetting the judgment of acquittal: (i) The evidence of PW-1 and PW-2 was clinching and could not have been rejected. The contradictions in their evidence were insignificant. (ii) The FIR was lodged barely 45 minutes after the incident A ; the distance of police station being one furlong from place of incident and the presence of PW-2 was mentioned in the FIR itself. (iii) PW-1 and PW-2 were sitting under the thatched roof .. near the Flour Mill and there being no obstruction between that place and the place of incident which was about 40 paces away, it was not improbable for PW·1 and PW-2 to watch the incident as lantern was burning at the shop of Balbir (8 paces away). There was no possibilityl of mistaken identity, as A-1 and A-2 were not unknown to " PW-1 and PW-2. (iv) Non-production of Asarfilal has been explained by PW- 1 that he had crossed over to the side of the accused and did not want to support the prosecution case . D (v) The recovery of blood stained knife and clothes from the house of A-1 was not liable to be rejected as recovery was proved by public witness PW-7.

pp. 856–857, margin F

The core question that must be answered is: whether the prosecution story is worth credence and whether the prosecution has sufficiently proved its case against the accused beyond reasonable doubt.

p. 857

Dr. Manohar Singhal (PW-4) conducted autopsy of the F dead body on September 29, 1990 at about 3.45 P.M. He found the following ante-mortem injury on the dead body of Ganga Singh : Stab wound 3 cm x 1.5 cm chest cavity deep over left side of neck, 7 cm below and medial to interior angle of left scapula and 8 cm outer to the mid line. Obliquely placed. Upper angle sharp. Margins clean cut and inverted. PW-4 has deposed that Ganga Singh had died due to shock .. A and haemorrhage as a result of ante-mortem injury sustained by him.

pp. 857–858

From the autopsy report and the testimony of PW-4, can reasonably be held that death of Ganga Singh was "c'~hotnicitlal. B·~ .. '''i 10. •Tbe inci~enJ_oc9~rr~.d on September 28, 1990 at 9.00 ·10rP.M. Ganga ~ingh . .(<;l~se~s~d) had gone to betel shop RajveerJo pyrch_asebidi. While he was returning, only few steps · • ,away, theJncident i~ said to h~ye occurred,. As a m~tter of fact, C PW-1 has admitted in his deposition that Rajveer's shop was . ' hardly 2-3 steps away from the place of occurrence. But '· strangely, despite·availability, Rajveer's statementwas neither recoidea under Section J61 Cr!P.C. nor he was tendered examination:before the Court. According to prosecution case, D .. a lantern was ~ burning at Rajveer's shop and it was from the light ofthat lanfern'ltllat'PW-1 'and PW-2 could see the culprits. ~ "''the '1n.Jesflgatirlg f}frajef (PW-6), even did. not seize the lantern from Rajveer's shop: The omission on the part of PW 6 in not 1,3,tre~9rdjpgthe,statement of Rajv~er and not seizing the lantern E1' frgm his snop is not innocuous; rather t~e very genesis of the :9.fi!l]e ~?~been. ~en~ered <;t?ub~yl an~)Hll of suspicion. The trial court considered this aspect as orie"of the main reasons in not believing the prosecution case' and' acquitted the accused. 'However,,- theJ;!tgh Court ignored and overlooked this aspect Fi; aft6gether!• ln.co,ur ,view,. non.-examination of Rajveer in the u <'circumstances is destructive of the substratum Of the prosecution story. · · ''"J '11: One of the main reasons given by the High Court ~ : •upsetting thejudgment of acquittal is that FIR was lodged barely G1,·45 miriutes after the· incjdent; the distance ot' ROliqe station being hardly one furlong from the place of occurrence. High , Court, however, failed to c~nsider a very materiai aspect that ' : c · despit~· the fact that police station was situated close and visible from the place of incident, yet PW-1 did not go immediately to police station to report but he first went to Charan Singh to have a written report prepared and then w~ntd to the police station with written report. The first version ofJhIDl incident could have been reported at the police station.withirrn five minutes of its occurrence. The fact that PW~1 tod~ 45~ij minutes in reporting the incident at the police stationt Fathe:r.ii creates doubt about the truthfulness of the prosecution ca8ecand~i does not rule out false implication of the accused againstwtromJt PW-1 had grudge due to some civil dispute betweer.iJthem.erH 2s 1stoani

pp. 858–859

The evidence of PW-1 about sufficient lig~t}[:P!Jh~~~ electric pole and from the lantern at Balbir's ~h9P, ~!~9~i,ljb highly doubtful. The Investigating Officer (PW-6) i.n;!)j~!e~ti,r;n~OYit stated that neither in FIR nor in his statement P'&':i1n19.lcf 1 oim~ about the electric pole at the place of incident.f;?Y\l-6;~~miff~ that electric pole has not been shown in sketch prepared by him. About the light from lantern at the shop bf Baloir; although the said lantern is said to have been seize(!; by1P.W~6J.b1Jt~ surprisingly that lantern was not produced durihg thetrialbeferi:f the court. PW-6 also admitted that PW-1 did hoHell'hjm:that-it' was a moonlit night. In these circumstances1!the evideho~of PW-1 that he witnessed the incident further becomes doubtful as admittedly he was sitting under thatghgd r66faSbut?.f0-45 paces away from the place of incident.}t~1fifCJ&'f~flhe eiiiderte€ of PW-1 being brother of the deceaskff2cfultii nof'have ·t>J~ti· justifiably thrown out as an interJ~Wcr'WhR~ss·:OLt1nL'fhe backdrop of totality of his evidence,1 il'!\9HC::P?~_:>jg~f.e~ vir,y;. his testimony could not have been safely relieg,,,uof:!B2c.~J1?~h~ ~f!Ci~ court cannot be said to have committed any error in this regard. The vital omissions in his .,testimo.nyg'als1ll1Tshake the trustworthiness of this witness. "'' <'1:..,c·: ~::i~·;rf'.~ --:.~c n pnib;:;~

p. 859, margin B

The evidence of PW-2 is no ~· better.-His ve!Ypresence ~··::;_11vJ;.;; at the time of incident is nqt·~Q!y, 2c;t.o,u~~!';l!,-,bH! ~!5i~.,:~ighly unnatural. He is not the resident,:;0f;;\/Hlag~ ~~n:ipjl ;"~he~e the incident occurred; he resides at Village Kullu Nagla. It does not stand to reason that in the night at about ~]O}:> ~M.· h,~'.l~~ul~ bring his foodgrain for grinding. He was unable foodgrain he had brought for grinding. The aspect is that although he claims to have been time of incident, he neither went along with Ganga he was taken to Kayam Ganj Primary Health incident nor he accompanied PW-1 to police station the report. He left the place of occurrence within the incident for his village. The version of PW-1 insofar as infliction of knife injury by Mahtab Singh Ganga Singh is concerned, is also not uniform. deposition stated that Mahtab Singh stabbed from the back side while the version of PW-2 Singh inflicted knife injury to Ganga Singh Pertinently, PW-2 is also co-brother of Ganga

pp. 859–860, margin G

All in all, the testimony of PW-1 and conform with collateral circumstances as well The circumstances brought on record show that testimony is not safe. Their testimony is shrouded suspicion and serious doubts.

p. 860, margin C

The trial court meticulously examined evidence available on record and then reached that the prosecution has failed to prove the charges accused beyond reasonable doubt.

p. 860, margin E

In Kalyan Singh v. State of M.P1., Sinha, J.) observed: "The High Court while dealing with considered opinion, failed to apply the deciding a case where a judgment of acquittal recorded. The views of the learned trial said to be wholly unsustainable. It is now if two views are possible, the appellate (2006) 13 sec 303. ordinarily interfere with the judgment of acquittal. We do A not, however, mean to lay down the law that the High Court, in a case where a judgment of acquittal is in question, would not go into the evidence brought on record by the prosecution or by the State but we would like to point out " that even if the High Court reversed the judgment of B , acquittal recorded by the trial court, it is incumbent on the High Court to arrive at the conclusion that no two views are possible."

pp. 860–861, margin E

The aforesaid legal position has been reiterated in K. C Prakashan v. P.K. Surenderan wherein it was said: "It is now trite that if two views are possible, the appellate court shall not reverse a judgment of acquittal only because another view is possible to be taken. The appellate court's jurisdiction to interfere is limited. (See M.S. Narayana D Menon and Mahadeo Laxman Sarane v. State of Maharashtra.) The High Court furthermore has not met the reasons of the learned trial Judge. It proceeded on the premise that the appellant had not been able to discharge his burden of proof in terms of Section 139 of the Act E without posing unto itself a further question as to how the said burden of proof can be discharged. It furthermore did not take into consideration the legal principle that the standard of proof upon a prosecution and upon an accused is different."

p. 861

In Ghurey Lal v. State of Uttar Pradesh, this Court while dealing with the scope of exercise of power by appellate Court against judgment of acquittal under Sections 378 and 386 Cr.P.C., considered a long line of cases viz., Sheo Swarup v. King Emperor"; Surajpa/ Singh v. State Tulsiram Kanu v. sec _, o sec A State Madan Mohan Singh v. State of U.P. Atley v. State of U.P. Aher Raja Khima v. State of Saurashtra M.G. Agarwal v. State of Maharashtra Noor Khan v. State of Rajasthan11; Khedu Mohton v. State of Bihar Shivaji Sahabrao Bobade v. State of Maharashtra Lekha Yadav v. B State of Bihar 4; Bishan Singh v. State of Punjab Umedbhai Jadavbhai v. State of Gujarat Tota Singh v. State of Punjab Ram Kumar v. State of Haryana Bhagwan Singh v. State of M.P. C. Antony v. K. G. Raghavan Nair State of Karnataka v. K. Gopalakarishna State of Goa v. Sanjay C Thakran and culled out the following principles: "1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law. sec sec sec sec sec sec sec sec sec sec sec 2. The accused is presumed innocent until proven guilty. A The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness' credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong."

pp. 861–863

We agree. The aforesaid principles must be kept in mind by the appellate court before it ventures to overturn trial court's judgment of acquittal. Unfortunately in the instant case, the High Court did not keep the well settled principles in mind and reversed the judgment of acquittal recorded by the trial court D when the view taken by the trial court was possible as well as plausible. The High Court, thus, seriously erred in disturbing the judgment of acquittal and recording the finding of guilt against the accused.

p. 863

We, accordingly, allow the appeal and set aside the judgment dated May 27, 2005 impugned in the present appeal. Mahtab Singh is already on bail, his bail bonds are cancelled. Jaipal is directed to be released forthwith unless required in any other case. 8.8.8. Appeal allowed.

p. 863