[REPORTABLE]

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.1297 OF 2008

Gopal Singh & Ors. ……..Appellants

Versus

State of M.P. ………Respondent

J U D G M E N T

HARJIT SINGH BEDI, J.

The prosecution story is as under:

1.On the 19

th

June 1990, the two deceased Rajmohan and

Niranjan Singh had gone to Jammusarkala to buy sugar

and while they were returning to their village and were

passing through the nearby forest, they were severely

beaten by the six accused with “lathis”, “lohangis” and

“farsas”. Information of the incident was given by Maina

Banjara PW3 to Daulat Singh PW4 and Sumer Singh

PW10. Sumer Singh and Maina Banjara and several

others then returned to the spot whereafter Niranjan

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Singh and Rajmohan (injured) made oral dying

declarations that they had been beaten by the six

accused with the aforementioned weapons. The two died

a short while later. Intimation of the incident was also

received in Police Station Berasia at 3.40 p.m. by

telephone and was recorded in Ex.P-3 on which Sub-

Inspector O.P.Katiyar PW13 reached the place of incident

along with a police force and found the dead bodies. A

Ruqa was recorded at 4.40 p.m. at the site and on its

basis a formal FIR was registered in the Police Station.

The dead bodies were thereafter dispatched to the

hospital for post-mortem which was performed by Dr.

R.K.Sharma PW1 who found 28 injuries on each of the

two deceased. During the course of the investigation, the

accused were arrested and on the basis of their

disclosure statements, the weapons of offence were also

recovered. The police also ascertained that the two

parties were very closely related inter-se and that there

was gross enmity between them with respect to certain

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agricultural land. On the completion of the investigation,

the accused were charged for an offence punishable

under Section 302 read with Section 34 of the IPC as

they pleaded not guilty, they were brought to trial.

2. The prosecution in support of his case relied primarily

on the eye – witness account of Feran Singh PW5 and on

the oral dying declarations made by the two deceased to

Daulat Singh PW4, Harnath Singh PW9, Sumer Singh

PW10 and Shivraj Singh PW11. In addition, the

prosecution relied on the recoveries made pursuant to

the disclosure statements of the accused. The

prosecution case was then put to the accused and the

plea taken was of serious enmity on account of a land

dispute between them and Daulat Singh PW4 as the

latter was keen to take over their agricultural land. The

trial court recorded a comprehensive judgment and

discussed the evidence under two broad heads (1) the eye

witness evidence of Feran Singh PW5 and (2) the

circumstantial evidence which included the motive

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behind the incident and the dying declaration of the

deceased and the recoveries of the weapons of offence.

The Court then examined the evidence of the prosecution

in the background of the motive and observed that

Maharaj Singh accused was the son of Balwant Singh

from his first wife and the other accused were sons of

Maharaj Singh whereas PW4 Daulat Singh and PW9

Harnath Singh were also sons of Balwant Singh though

from a second wife and Feran Singh PW5 was son of

Daulat Singh PW and Shivraj Singh PW11 was son of

Sumer Singh PW10, meaning thereby all the witnesses

belonged to one large group. The Court also observed

that from the evidence on record, it was amply clear that

the relations between the two sets of brothers were very

strained and several criminal litigations inter-se them

and pertaining to a land dispute had started in the year

1984 and were subsisting even on the date of murder

and that the periodic quarrels between them had caused

great friction in the family. The Court then went on to

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examine the prosecution story and recalled that two

different stories had been projected by the prosecution,

first, that a report had been filed by Daulat Singh PW at

the Police Station immediately after the crime had been

committed at about 1 p.m. and the second that

information had been received on telephone as per Ex.P3

at 3.45 p.m. on which Sub-Inspector Katiyar PW13 had

reached the place of incident at 4p.m and after spot

inspection at 4.45 p.m. had initiated the recording of the

FIR. The Court, however, disbelieved the statement of

Sub Inspector that he had reached the place of incident

at 4 p.m. observing that if the information had been

received at 3.45 p.m. it would not have been possible for

him to have covered the 18 km distance through a very

rustic rural road within 20 minutes. The Court,

accordingly, held that on account of the discrepancy with

regard to the lodging of the FIR at 1 p.m. or after 4.45

p.m., the only inference that could be drawn was that till

1p.m. the names of the accused were not known and that

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the report of 1 p.m. had been withheld by the

prosecution. The Court then went into the alternative

that assuming that the FIR had indeed been recorded

shortly after 4.45 p.m. and the incident had taken place

at 10 or 10.30 a.m. about one km away from the village

and the time taken in conveying the information to the

village by Maina Banjara to Daulat Singh and Sumer

Singh, it appeared to be a case of a delayed FIR. The

Court further observed that there was no evidence to

show as to when the copy of the FIR had been received by

the Magistrate, as provided by Section 157 of the Code of

Criminal Procedure and finally concluded on this aspect

by observing:

“it could be safely deduced that the FIR was

finalized deliberately as an after-thought,

after having dispatched the dead bodies for

post-mortem examination. Under these

circumstances, namely the way in which the

FIR was filed, as to whether in point of fact,

the FIR was registered at 4.45 p.m. or at 1

p.m., and the details regarding the crime, non-

despatch of a copy thereof to the Magistrate,

non-compliance of immediate recording of the

incidence of crime, omission of the names of

the accused persons in the text of the

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respective panchnamas on the bodies and

also in the merge statements thereof, on

perusal of all these circumstances, I come to

the conclusion that the report was lodged with

unwarranted delay and the prosecution has

since failed to provide any logical explanation

thereof. Under the above circumstances,

prima facie the story put forth by the

prosecution is highly doubtful.”

3.The Court then examined the dying declarations that

have been allegedly made by the two deceased shortly before

their deaths to Daulat Singh PW4, Harnath Singh PW9 and

Sumer Singh PW10. The Court referred to the broad principle

underlying the recording of a dying declaration and

emphasized that its veracity had to be adjudged carefully as

the maker was not available for cross-examination and the

Court was thus called upon to exercise great caution and for

that purpose two broad factors had to be kept in mind, firstly,

that the person making the dying declaration was physically

capable of making it, and secondly that the statement, if

made, represented the true state of affairs. The Court then

examined the statement of the witnesses to the dying

declaration and observed that as the evidence inter-se them

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was completely discrepant as to the manner in which the

dying declaration had been made, a serious doubt was cast on

the truthfulness of their testimony. The Court also referred to

the evidence of Dr. R.K.Sharma PW, the doctor who had

performed the post-mortem examinations, and had found 28

wounds on each body, and observed that as per the statement

of the doctor both the injured would have been rendered

unconscious within 10 to 15 minutes looking to the critical

nature of the wounds. The Court then tested the prosecution

story on this basis and opined the incident had occurred

around 9 or 10 a.m., as suggested, and Daulat Singh and

Sumer Singh had taken an hour to reach the place of incident

(as Daulat Singh had virtually admitted that they had reached

the site of at 11 a.m.), it appeared to be extremely doubtful

that Rajmohan and Niranjan Singh were in a position to make

any statement. The Court also examined the statement of

Harnath Singh PW9 and observed that it was a blatant lie and

that it would have been impossible for him to reach the place

of incident to become a witness to the oral dying declarations.

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The Court, accordingly, concluded that the statements of the

aforesaid witnesses were totally contradictory and illogical and

in point of fact the deceased were not in a position to make

any statement and that under these circumstances, “the story

of the dying declaration was totally made up, unnatural and

non-dependable.” The Court also examined the evidence of

the solitary eye witness Feran Singh PW son of Daulat Singh

and recorded a positive finding that the story projected by him

was totally unnatural inasmuch that he had rushed to the

village from the site after seeing the incident about I km away

where his father, uncle, brothers, cousins and the entire

family had been present, but he did not tell them as to what

had happened but had, in fact, hidden himself on the plea

that he feared for his own safety. The Court ultimately

concluded that the evidence was against normal human

behaviour and could not be deemed to be trust-worthy. The

Court also held that the investigation in the matter was

completely irresponsible and shoddy and the police had made

no attempt to ascertain the identity of the person who had

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made the telephone call leading to the recording of Ex.P3 at

3.40 p.m. and the prosecution story appeared to have been

built on the assumption that as the relations between the

parties were strained, it were the accused and accused alone,

who were responsible for the double murders. The trial court,

accordingly, acquitted the accused.

4.Aggrieved by the judgment of acquittal, the State of

Madhya Pradesh filed an appeal in the High Court and the

appeal has been allowed. The judgment of the High Court is

under challenge before us after the grant of special leave.

5.It has been urged by Mr. Fakhruddin, the learned senior

counsel for the appellants, that the High Court was remiss in

upsetting the order of acquittal as the trial court had by a very

cogent and detailed judgment considered every aspect of the

matter and acquitted the accused, and that the High Court

had ignored the basic principle that if the view taken by the

trial court was possible on the evidence, no interference

should be made. It has been highlighted that the trial court

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had considered the evidence under two broad heads and

recorded a positive finding that the first report of the incident

at about 1 p.m. had been suppressed by the prosecution and

the report recorded after 4.45 p.m. was, thus, not the first

information report but even assuming that it was the first

report, the fact that there was no evidence to show that the

special report had been delivered to the Magistrate belied the

prosecution story that it had been recorded at about 4.45 p.m.

It has also been pointed out that the serious animosity

between the parties was proved on record and several

litigations that were continuing since 1984 was the evident

cause for the false implication of the accused, who were the

father, Maharaj Singh and his five sons. It has further been

submitted that the prosecution had placed primary reliance on

the dying declarations made by the two deceased to four

different persons and in the light of the statement of Dr.

Sharma PW that the injured could not have remained

conscious for more 10 or 15 minutes after sustaining the

injuries, the story of the oral dying declarations allegedly made

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about two hours thereafter could not be believed. It has

further been pointed out that the conduct of Feran Singh PW5

the solitary eye witness was completely unnatural and belied

his presence.

6.Mrs. Vibha Dutta Makhija, the learned counsel appearing

for the State has, however, supported the judgment of the

High Court and has argued that the High Court was justified

in believing the prosecution story as the incident had

happened all of a sudden and a quick and clock work like

investigation could not be expected in India’s rural set up.

7.We have considered the arguments advanced by the

learned counsel for the parties. The High Court’s power while

converting an acquittal into a conviction is no longer a matter

of speculation and debate. It is now well settled that if the

trial court’s judgment is well based on the evidence and the

conclusion drawn in favour of the accused was possible

thereof, the High Court would not be justified in interfering on

the premise that a different view could also be taken and

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though the High Court was entitled to reappraise the evidence

there should be substantial and compelling reasons for setting

aside an acquittal order and making one of conviction.

8.A bare perusal of the record and the findings recorded by

the trial court reveal that the present case is not one of the

category which would call for interference by the High Court.

The trial court has given positive findings with regard to the

various aspects of the prosecution story already referred to

above. The High Court has, in the course of its judgment, not

been able to meet the reasons which weighed with the trial

court in drawing its conclusion. The fact that the first report

had been recorded at about 1 p.m. and suppressed by the

prosecution has been largely ignored by referring to the first

information recorded at about 4.45 p.m. after the Ruqa had

been sent by Sub- Inspector Katiyar from the place of incident

to the Police Station. The High Court has also ignored the fact

that there was no evidence to show as to when special report

had been dispatched to or received by the Magistrate. The

inference drawn by the Trial Court, therefore, that the first

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information of 1 p.m. had been suppressed by the prosecution

as the names of the assailants were not known and that there

was no evidence to confirm the time of the recording of the FIR

shortly after 4.45 p.m. as there was no evidence of the

dispatch or delivery of the special report, which cast clearly

suspicion even on this part of the prosecution story, has not

been dealt with by the High Court.

9.The High Court has examined the reliability of the oral

dying declarations made by the two deceased to the four

witnesses but while observing that there were substantial

discrepancies inter-se each of them, has still chosen to rely on

their statements. The Court has ignored the statement of Dr.

Sharma PW who opined that the injured would have been

rendered unconscious within 10 to 15 minutes after receiving

their injuries by opining that this fact would vary from person

to person. This would undoubtedly be true, but the doctor’s

statement is only one of the factors which had weighed with

the Trial Court in rendering its opinion. Even otherwise, an

oral dying declaration made to a person who had very serious

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enmity with the accused should be accepted with a little

hesitation and reservation.

10.We also find that the High Court has accepted the

statement of Feran Singh PW5 as the eye witness of the

incident ignoring the fact that his behaviour was unnatural as

he claimed to have rushed to the village but had still not

conveyed the information about the incident to his parents

and others present there and had chosen to disappear for a

couple of hours on the specious and unacceptable plea that he

feared for his own safety.

11.We are, therefore, of the opinion that the judgment of the

High Court is erroneous for the above reasons. We,

accordingly, allow the appeal and direct the acquittal of the

accused. If they are in custody, they shall be released

forthwith. If they are on bail, their bail bonds shall stand

discharged.

…..…………………….. J.

(HARJIT SINGH BEDI)

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..………………………. J.

( A.K. PATNAIK)

May 12, 2010

New Delhi

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