2025 INSC 1246 1

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO(S). 116 OF 2012

KANNAIYA ….APPELLANT(S)

VERSUS

STATE OF MADHYA

PRADESH ….RESPONDENT(S)

J U D G M E N T

Mehta, J.

1. Heard.

2. The accused-appellant herein has approached

this Court for assailing the judgment dated 9

th April,

2009, passed by the Division Bench of the High Court

of Madhya Pradesh at Indore

1 in Criminal Appeal No.

1487 of 1999 whereby, the High Court dismissed the

appeal preferred by the accused-appellant and three

1

Hereinafter, referred to as the ‘High Court’.

2

CRIMINAL APPEAL NO(S). 116 OF 2012

co-accused persons under Section 374(2) of the Code

of Criminal Procedure, 1973.

2

3. By way of the aforesaid appeal, the four convicts

including the accused-appellant herein had assailed

the judgment and order dated 22

nd October, 1999

passed by the First Additional Sessions Judge,

Mhow, District Indore, Madhya Pradesh

3 in Sessions

Case No. 524 of 1990 , convicting the accused-

appellant and three others namely Govardhan, Raja

Ram and Bhima for the offences punishable under

Section 302 read with Section 34 of the Indian Penal

Code, 1860

4 and Section 302 of the IPC and

sentencing each of them to imprisonment for life and

fine of Rs.1,000/- with default stipulation.

4. It needs to be noted that only the accused-

appellant has approached this Court to assail the

judgment of the High Court, whereas, the remaining

three accused seem not to have availed this remedy.

Brief Facts: -

5. Succinctly stated, facts relevant and essential

for disposal of the appeal are noted hereinbelow.

2

For short, “CrPC”.

3

Hereinafter, referred to as the “trial Court”.

4

For short, “IPC”.

3

CRIMINAL APPEAL NO(S). 116 OF 2012

6. Shri Gobariya (PW-2) lodged an FIR at the Police

Station, Manpur, alleging inter alia that on 28

th

September, 1990 an incident took place at about

09:00 pm in his village Chak. The accused-appellant

and nine others namely Babu Lal, Gyan Singh,

Bhima, Birjo, Raja Ram, Ram Swaroop, Govardhan,

Keshar Singh and Asha Ram were damaging the

Tapra (temporary hutment) of Jagya (PW-3). Ramesh,

son of the informant (PW-2) intervened and tried to

pacify the accused persons and requested them to

desist from damaging the hut whereupon, the

assailants diverted their attention towards Ramesh

and started assaulting him indiscriminately.

7. Govardhan was armed with a sword, Kannaiya

(accused-appellant) was armed with an axe, Keshar

Singh, Asha Ram, Bhima and Gyan Singh were

armed with sticks, whereas, Raja Ram, Ram

Swaroop, Birjo and Babu Lal were unarmed. These

unarmed assailants used their fists and kicks to beat

Ramesh whereas, the armed assailant s caused

injuries to him using their respective weapons.

8. The informant (PW-2) further alleged that his

son, Ramesh, started bleeding profusely because of

the injuries caused to him by sharp weapons and

4

CRIMINAL APPEAL NO(S). 116 OF 2012

sticks, and fell down unconscious. On hearing the

outcry, Madho Singh (PW-5), Ramchander (PW-4),

and other villagers came there and saw the incident.

The informant (PW-2) and Madho Singh (PW -5)

picked up Ramesh in injured condition. It was alleged

that the assailants were having a political rivalry with

the complainant party and that was the cause of the

assault.

9. The oral statement of the informant (PW-2)

recorded at the Police Station, Manpur, on 29

th

September, 1990 at about 8.00 am, was treated to be

a complaint and based thereupon, a formal FIR

bearing Case No. 212 of 1990 was registered for

offences punishable under Sections 307, 147 and

148 read with Section 149 of the IPC and Sections 25

and 27 of the Arms Act, 1959. However, it is

noteworthy that the said formal FIR was not proved

by the prosecution at the trial.

10. Ramesh was taken to the Primary Health

Centre, Manpur, for treatment, where he was

examined by Dr. M.S. Pathak (PW-17) who issued the

medico legal certificate (Exh.P-22).

5 From there, he

5

For short, “MLC”.

5

CRIMINAL APPEAL NO(S). 116 OF 2012

was referred for better management and treatment to

the M.Y. Hospital, Indore where he expired on 5

th

October, 1990 while undergoing treatment. The Chief

Medical Officer of M.Y. Hospital sent an intimation

regarding death of Ramesh to the Sanyogitaganj

Police Station, Indore, whereupon offence punishable

under Section 302 of the IPC was added to the case.

11. The Investigating Officer (PW-13) conducted

inquest on the dead body of Ramesh and sent the

same for postmortem examination.

12. Dr. Ravindra Chaudhary (PW-18) conducted

postmortem examination upon the dead body of

Ramesh and issued the postmortem report (Exh. P-

23), taking note of the following injuries: -

1) A stitched wound on the right forehead

measuring 4 cms having five stitches. A dark

black colored scab was seen on the wound.

2) Right eye had gone black.

3) A grey colored diagonal bruised injury on

the right cheek, 3 cms below the eye,

measuring 3 cms x 1 cm.

4) A 3 cms long wound on the right side of the

face, near the chin, having three stitches and

was looking dark-grey colored.

6

CRIMINAL APPEAL NO(S). 116 OF 2012

5) A dark-grey colored contused abrasion on

the left side of the face measuring 2 cms x 1

cm.

6) A dislocated fracture was found on the

lower jaw and the lower teeth of the front side

were broken with bleeding.

7) A stitched diagonal wound on the left

frontoparietal region of the head measuring 5

cms in length, having five stitches and was

having grey colored clotted blood.

8) There was a rod patterned contusion about

two and half cms away from the right middle

line on the stomach measuring 10 cms x 1 cm

and was of grey color.

9) A stitched wound on the left ankle

measuring 8 cms in length having 7 stitches.

The wound was black-grey colored.

10) A stitched wound on the left thigh towards

back side measuring 5 cms in length and was

having 4 stitches on it. Dark grey colored

ecchymosis was present around the wound.

13. The Investigating Officer (PW-13) proceeded to

arrest all ten assailants named in the FIR, and, sharp

weapons used in the incident were seized pursuant

7

CRIMINAL APPEAL NO(S). 116 OF 2012

to the disclosures under Section 27 of the Indian

Evidence Act, 1872 made by the accused-appellant,

Babu Lal, Gyan Singh, Bhima, Birjo, Raja Ram, Ram

Swaroop, Govardhan, Keshar Singh, and Asha Ram.

The seized weapons, i.e., sword and axe were

forwarded to the concerned medical officer for

opinion regarding the possibility of the injuries being

caused by these two weapons. Dr. M.S. Pathak (PW-

17) examined the weapons and gave his opinion (Exh.

P-18). The seized articles were forwarded to the

Forensic Science Laboratory

6 from where an analysis

report (Exh. P-19) was received. After concluding

investigation, chargesheet was filed against the ten

accused persons named in the FIR. Since the offence

punishable under Section 302 of the IPC was

exclusively sessions triable, the case was committed

and transferred to the Court of First Additional

Sessions Judge, Mhow, District Indore, Madhya

Pradesh for trial.

14. The trial Court framed charges against all the

ten accused for the offences set out in the

chargesheet. The accused persons pleaded not guilty

6

For Short “FSL”.

8

CRIMINAL APPEAL NO(S). 116 OF 2012

and claimed trial. The prosecution examined as many

as 18 witnesses and exhibited 24 documents to prove

its case. The trial Court questioned the accused

persons under Section 313 of the CrPC and

confronted them with the circumstances as

appearing in the prosecution’s case. The accused

denied the same and claimed to be innocent.

However, no evidence was led in defence. At the

conclusion of trial, the trial Court proceeded to acquit

six accused persons, namely Babu Lal, Gyan Singh,

Birjo, Ram Swaroop, Keshar Singh, and Asha Ram,

and at the same time, convicted the accused-

appellant alongside Govardhan, Raja Ram and

Bhima for the offences punishable under Section 302

read with Section 34 of the IPC and Section 302 of

the IPC and sentenced them as above

7 vide Judgment

and order dated 22

nd October, 1999.

15. Being aggrieved, all four convicted accused

persons, preferred an appeal before the High Court

which stands rejected by the judgment date d 9

th

April, 2009, which is subject matter of challenge in

7

Supra, para 3.

9

CRIMINAL APPEAL NO(S). 116 OF 2012

this appeal by special leave at the instance of the

appellant-Kannaiya.

Submissions on behalf of the accused-appellant: -

16. Learned counsel representing the accused-

appellant urged that the entire prosecution case is

false and fabricated. The father of deceased Ramesh

being the informant of the present case, namely,

Gobariya (PW-2) did not support the prosecution case

and was declared hostile.

17. Jagya (PW-3), in whose hut, the incident

purportedly started also did not support the

prosecution case and was declared hostile. Puniya

(PW-12), son of Jagya (PW-3) changed the genesis as

well as place of the occurrence and alleged that the

fight took place in the field of Gopya where he

allegedly saw accused-appellant alongside

Govardhan, Raja Ram and Bh ima assaulting

Ramesh. Learned counsel pointed out that this

witness (PW-12) did not name anyone else in the

assault made on Ramesh but rather alleged that the

other accused persons came to the place of incident

later, which is totally contrary to what was stated in

the FIR.

10

CRIMINAL APPEAL NO(S). 116 OF 2012

18. Learned counsel pointed out that Puniya (PW-

12) did not mention about the presence of Madho

Singh (PW-5) at the spot when the incident was

taking place. Rather, he alleged that he conveyed

about the incident to Gobariya (PW-2), father of

Ramesh and, thereafter, Madho Singh (PW-5) went to

lift Ramesh. He further urged that Madho Singh (PW-

5) in his deposition, did not acknowledge the

presence of Puniya (PW-12) at the time of the

incident, thus, both the witnesses contradict each

other on the vital aspect of their presence at the crime

scene and hence, their evidence is unworthy of

credence. Not only this, Madho Singh (PW-5), in his

deposition, gave a totally contrary version alleging

that the accused persons had come to the house of

Narsingh which is located nearby to his house. At

that time, Ramesh was present in his house. Madho

Singh (PW-5) and Ramesh tried to convince Bhima

not to start a fight whereupon the accused persons

namely Kannaiya (accused-appellant), Babu Lal,

Gyan Singh, Bhima, Birjo, Raja Ram, Ram Swaroop,

Govardhan, Keshar Singh and Asha Ram started

assaulting Ramesh who received multiple injuries on

his legs, head, etc. However, in the later part of the

11

CRIMINAL APPEAL NO(S). 116 OF 2012

deposition, the witness (PW-5) alleged that the entire

fight had taken place in the agricultural field of

Bholiya.

19. It was submitted that there is no reference to

any field of Bholiya in the site inspection plan (Exh.

P-6). Thus, there is grave contradiction in the

versions of Madho Singh (PW-5) and Puniya (PW-12)

regarding the place as well as the genesis of the

incident. Furthermore, the version of Madho Singh

(PW-5) when he claimed that Ramesh was present in

his house before the incident started, is in stark

contradiction to the sequence set out in the FIR and

in the evidence of Puniya (PW-12).

20. Learned counsel also urged that Madho Singh

(PW-5), admitted in cross-examination that when

Ramesh was being assaulted, nobody other than the

witness (PW-5) himself was present at the spot. This

admission of the witness (PW-5) completely

demolishes the claim of Puniya (PW-12) regarding he

having witnessed the incident. Not only this, other

than a bald reference to political rivalry, there is no

reference in the evidence of any of the prosecution

witnesses as to the reason for which the accused

persons were either demolishing the hut of Jagya

12

CRIMINAL APPEAL NO(S). 116 OF 2012

(PW-3) or were indulging in some offensive activity in

the field of Gopya/Bholiya which compelled Ramesh

to interfere. Thus, there is a complete vacuum in the

prosecution story regarding the genesis of the

occurrence.

21. Since the witnesses have failed to point out the

reason behind the incident, and as there are grave

discrepancies in the statements of the two so called

eyewitnesses, i.e., Madho Singh (PW-5) and Puniya

(PW-12), it would be totally unsafe to affirm the

conviction of the accused-appellant on the basis of

such flimsy and contradictory evidence.

22. It was further argued that six other accused

persons against whom also the similar evidence

existed on record, namely, Babu Lal, Gyan Singh,

Birjo, Ram Swaroop, Keshar Singh and Asha Ram

stand acquitted by the trial Court and thus, the

accused-appellant is also entitled to acquittal on

parity.

Submissions on behalf of the respondent-State: -

23. Per contra, learned counsel representing the

respondent-State, vehemently and fervently opposed

the submissions advanced by the appellant’s

counsel. He urged that the case of the prosecution is

13

CRIMINAL APPEAL NO(S). 116 OF 2012

based on unimpeachable testimony of the

independent eye witnesses Madho Singh (PW-5) and

Puniya (PW-12), who had no reason or motive to

falsely implicate the accused-appellant in this case.

Both have made truthful deposition at the trial and

could not be shaken from their stan ce despite

extensive cross-examination. As per their testimony,

the accused-appellant as well as the three co-

convicts were armed with sharp weapons and large

number of sharp weapon injuries were found on the

body of deceased Ramesh as per the medical

evidence. Thus, evidence of eyewitnesses is fully

corroborated by medical evidence , further

strengthening the case of the prosecution. He urged

that the name of Madho Singh (PW-5) is mentioned

in the FIR as an eye witness and the mere omission

by the first informant, Gobariya (PW-2), to mention

about the presence of Puniya (PW-12) as an eye

witness in the FIR, would not discredit the

evidentiary worth of the eye witness because the

incident took place when the accused persons were

trying to dismantle and destroy the hut of Jagya (PW-

3), father of Puniya (PW-12). Hence, the presence of

Puniya (PW-12) at the hut of his father was natural.

14

CRIMINAL APPEAL NO(S). 116 OF 2012

24. It was further argued that the trial Court and

the High Cou rt have undertaken extensive

appreciation and re-appreciation of evidence to

conclude that the case of the accused-appellant and

the co-convicts was distinguishable from that of the

acquitted accused persons who were either carrying

blunt weapons or were unarmed. It was contended

that the judgment under challenge does not require

interference by this Court.

Findings and Conclusion: -

25. We have given our thoughtful consideration to

the submissions advanced at bar and have gone

through the impugned judgment. We have

threadbare re-appreciated the evidence available on

record.

26. The learned counsel for the accused-appellant

did not dispute the fact that the death of Ramesh was

homicidal, preceded by large number of sharp and

blunt weapon injuries, which fact has been proved by

Dr. M.S. Pathak (PW-17), who issued the MLC (Exh.

P-22) and by Dr. Ravindra Chaudhary (PW-18), who

issued the post mortem report (Exh. P-23).

27. At the outset, we may take note of the fact that

the factum of the complainant party and the accused

15

CRIMINAL APPEAL NO(S). 116 OF 2012

party belonging to rival political factions is not in

dispute. It is in this background that we will have to

test the veracity of evidence of the prosecution

witnesses with greater care and circumspection.

28. This Court in Vadivelu Thevar v. State of

Madras

8, laid down certain guiding principles

classifying witnesses into three distinct categories

and elucidated the approach to be adopted in

assessing their credibility, which are reproduced

hereinbelow: -

“11.…………The matter thus must depend upon

the circumstances of each case and the quality

of the evidence of the single witness whose

testimony has to be either accepted or rejected.

If such a testimony is found by the court to be

entirely reliable, there is no legal impediment to

the conviction of the accused person on such

proof. Even as the guilt of an accused person

may be proved by the testimony of a single

witness, the innocence of an accused person

may be established on the testimony of a

single witness, even though a considerable

number of witnesses may be forthcoming to

testify to the truth of the case for the

prosecution. Hence, in our opinion, it is a

sound and well-established rule of law that

the court is concerned with the quality and

not with the quantity of the evidence

necessary for proving or disproving a fact.

Generally speaking, oral testimony in this

context may be classified into three

categories, namely:

8

AIR 1957 SC 614.

16

CRIMINAL APPEAL NO(S). 116 OF 2012

(1) Wholly reliable.

(2) Wholly unreliable.

(3) Neither wholly reliable nor wholly

unreliable.

12. In the first category of proof, the court

should have no difficulty in coming to its

conclusion either way — it may convict or

may acquit on the testimony of a single

witness, if it is found to be above reproach or

suspicion of interestedness, incompetence or

subornation. In the second category, the

court equally has no difficulty in coming to

its conclusion. It is in the third category of

cases, that the court has to be circumspect

and has to look for corroboration in material

particulars by reliable testimony, direct or

circumstantial…………..”

(Emphasis Supplied)

29. The FIR of the incident came to be lodged on the

basis of the oral statement of Gobariya (PW-2) being

the father of deceased Ramesh. However, he did not

support the prosecution case and was declared

hostile. In the FIR, there is no reference to the

presence of Puniya (PW-12), the so-called eye witness

at the crime scene. The prosecution came out with a

pertinent case in the FIR that the incident started

with the ten accused persons named in the FIR trying

to destroy the hut of Jagya (PW-3).

30. Jagya himself was examined by the prosecution

as PW-3 and in his evidence, he alleged that the

17

CRIMINAL APPEAL NO(S). 116 OF 2012

incident took place at about 11:00 pm. His Tapra

(temporary hutment) was being damaged. He heard

the voice of Bhima who was hurling abuses. Ignoring

the commotion, he continued to sleep inside the hut.

He failed to identify any of the assailants during his

deposition and was declared hostile.

31. What is significant to mention here is that the

witness (PW-3) did not mention about the presence of

his son, Puniya (PW-12), at the place of the incident.

32. Puniya (PW-12) alleged that he was at his house

at about 9:00 pm when he heard the sounds of

commotion and thus, he ran towards the field of

Gopya where the incident was happening. He claims

to have seen Govardhan armed with a sword,

Kannaiya (accused-appellant) armed with an axe,

Bhima armed with a Falia and Raja Ram armed with

a Farsa (spade), assaulting Ramesh. On seeing the

assault, he ran back and told Gobariya (PW-2), father

of Ramesh, about the assault. Thereafter, Madho

Singh (PW-5) came and lifted Ramesh who was later

taken to the hospital. After the initial assault had

happened, the remaining accused persons also came

there. On seeing the condition of Ramesh, th e

18

CRIMINAL APPEAL NO(S). 116 OF 2012

accused persons commented that he had died and

then went away.

33. In cross-examination, the witness (PW-12)

stated that his house was at a distance of about one

furlong from the house of Ramesh. There was a gap

of about 100 meters between his house and the field

of Gopya where the incident took place. He feigned

ignorance regarding the political leanings of the

accused persons and claimed that he did not know

which political party they belonged to. He also feigned

ignorance as to the reason due to which the incident

happened. He stated that when he saw Ramesh being

attacked, he ran towards him.

34. The witness (PW-12) further stated in his cross-

examination that after the accused persons had left,

he reached the place of incident after a gap of about

one hour, whereupon he found Ramesh lying at the

spot. The witness (PW-12) admitted that he did not

pick up Ramesh, and that it was Madho Singh (PW-

5) who picked up and carried Ramesh to the hospital.

35. The witness (PW-12) emphatically stated that

the incident took place in the field of Gopya, and that

he alone had gone to the spot, unaccompanied by

anyone else. As soon as he reached the place of

19

CRIMINAL APPEAL NO(S). 116 OF 2012

incident, a hue and cry broke out and the assault

started and then he (PW-12) immediately rushed

back to his home.

36. It can clearly be elicited from the evidence of

Puniya (PW-12), that the incident did not take place

at the hut of Jagya (PW-3) as is alleged in the FIR and

rather happened in the field of Gopya. This is a very

significant contradiction which has a direct bearing

on the very foundation of the prosecution case ,

because the genesis of the occurrence and so also the

place of the incident as set out in the FIR have both

been materially altered in the version of Puniya (PW-

12), whose testimony was heavily relied upon by the

trial Court as well as the High Court in arriving at the

finding of guilt against the accused persons. The

witness (PW-12) did not acknowledge the presence of

Madho Singh (PW-5) at the place of incident when the

actual assault was taking place. Rather, he

emphatically stated in response to the suggestion

given in the cross-examination that only he (PW-12)

had reached at the place of incident after hearing the

hue and cry and no one else was present there.

37. Ramesh was a cousin brother of Puniya (PW-

12). The conduct of Puniya (PW-12) in failing to make

20

CRIMINAL APPEAL NO(S). 116 OF 2012

any effort to protect Ramesh from the assault being

made by the assailants and the rank apathy shown

by him in not assisting Ramesh after he had been

belaboured and had fallen down, creates a grave

doubt regarding the witness’s (PW-12) presence at

the crime scene and his claim of having seen the

accused persons assaulting Ramesh. The

discrepancy in the FIR and the version of the witness

(PW-12) regarding the number of the accused

persons who were armed with sharp weapons is also

crucial. The omission of the name of Puniya (PW-12)

in the FIR lodged by Gobariya (PW-2) is also a fact

which impinges upon the bona fides of the

prosecution story which claims that Puniya (PW-12)

had also seen the accused persons assaulting

Ramesh.

38. The incident took place in a small village where

everyone is known to each other. Puniya (PW-12) was

closely related to Ramesh. Thus, had he actually seen

the incident, this fact was bound to crop up in the

discussion among the family members and in that

event, the name of Puniya (PW-12) as an eye witness

to the alleged assault would definitely have reflected

in the FIR. It is true that the reason for the said

21

CRIMINAL APPEAL NO(S). 116 OF 2012

material omission could not be elicited because the

first informant, Gobariya (PW-2), turned hostile.

However, the fact that the name of a family member

who claims to have seen the assault, was not

mentioned in the FIR is undoubtedly a very vital

omission which would have a bearing on the veracity

of the prosecution case.

39. We may hasten to add here that Puniya (PW-12)

is not the scribe of the FIR, but the omission of his

name in the FIR gains significance considering the

fact that the incident started with the accused

persons trying to damage the hut of Jagya (PW-3),

father of Puniya (PW-12). In this background, the

omission of his name in the FIR is a material one.

40. Thus, we have no hesitation in concluding that

Puniya (PW-12), falls within the category of a “wholly

unreliable witness”.

41. Now, we shall proceed to discuss the evidence of

Madho Singh (PW-5), the other eye witness of the

prosecution, whose testimony has been believed by

the trial Court as well as the High Court.

42. The witness (PW-5) stated that it was night time,

and he was at his house. The accused-appellant and

nine co-accused persons namely Babu Lal, Gyan

22

CRIMINAL APPEAL NO(S). 116 OF 2012

Singh, Bhima, Birjo, Raja Ram, Ram Swaroop,

Govardhan, Keshar Singh and Asha Ram had come

to the house of Narsingh, which the witness (PW-5)

claims to be adjacent to his house. However, it may

be noted that the site inspection plan (Exh. P-6) does

not record the house of Narsingh near the house of

Madho Singh (PW-5). He alleged that Bhima was

having a Faliya, Govardhan had a sword, Kannaiya

(accused-appellant) was having an axe, Gyan Singh

and all others were having sticks in their hands.

Ramesh had come to his house and they were

smoking Bidis. The witness (PW-5) and Ramesh tried

to placate the accused persons and requested them

to refrain from violence but, the accused Bhima along

with the other co-accused persons launched an

assault on Ramesh.

43. The assailants belaboured Ramesh and then

ran away. The witness (PW-5) claimed that while

Ramesh was being beaten by the assailants, he kept

on standing at a distance of about 2 steps. He feigned

ignorance as to the reason why the assailants had

caused injuries to Ramesh. The next day, police came

to the spot and inspected the site and collected soil

and other materials from the place of incident.

23

CRIMINAL APPEAL NO(S). 116 OF 2012

44. The witness (PW-5) stated in cross-examination

that his house and the house of Ramesh are at a

significant distance from each other. He further

stated that the houses of the accused persons were

also located quite far from his residence. Ramesh had

come to his house to smoke a ‘bidi’, and while they

were sitting inside, the accused persons were hurling

abuses from the pathway passing in front of his

house. When Ramesh went to stop the accused

persons, they launched an assault on him. The

accused persons neither caused injury nor did they

try to damage any hut belonging the witness (PW-5).

When Ramesh was being assaulted, no one other

than the witness (PW-5) was present at the spot. His

father was not present there. He was alone in his hut

and his wife had gone to her house.

45. In reply to a pertinent question put to the

witness (PW-5), in cross-examination, he admitted

that while the incident continued and a hue and cry

was being raised, no one from the village came to the

place of incident. He did not raise his voice to call

anyone for help. He admitted that he was associated

with the Congress party whereas, the accused

persons were affiliated to the Bhartiya Janta Party.

24

CRIMINAL APPEAL NO(S). 116 OF 2012

46. He also admitted that there was a feud going on

between the accused persons and the complainant

party, because of party politics and they were not on

speaking terms.

47. Following important facts can be discerned from

the evidence of witness: -

i. PW-5 totally denied the fact that the accused

persons were damaging some hut when the

incident started. This version is totally contrary

to the story set out in the FIR.

ii. The witness (PW-5) emphatically denied the

presence of anyone else at the crime scene while

the incident was happening. This admission

creates a doubt on the presence of Puniya (PW-

12) at the crime scene thereby damaging the

case of prosecution.

iii. The witness (PW-5) admitted political rivalry

between the accused persons and the

complainant party.

iv. The witness (PW-5) claimed that Ramesh had

randomly come to his house for smoking Bidi.

v. The witness (PW-5) did not allege that the

incident took place in the field of Gopya.

25

CRIMINAL APPEAL NO(S). 116 OF 2012

vi. The witness (PW-5) claims that he was standing

at a distance of two steps while Ramesh was

being indiscriminately assaulted by no less than

ten assailants armed with sharp and blunt

weapons. In spite thereof, PW -5 escaped

unscathed without receiving even a single injury

which creates a grave doubt on his very

presence at the crime scene at the time of the

incident.

48. Clearly thus, the very substratum of the

prosecution case regarding the genesis of the incident

and the place of occurrence has been materially

altered in the testimony of the witness (PW-5).

49. Madho Singh (PW-5) was an attesting witness to

the site inspection plan (Exh. P-6) wherein, the fact

regarding the incident having taken place in the field

of Gopya is recorded. His version that the incident

started when the assailants started acting

aggressively in front of the house of Narsingh is

contradicted by the fact that there is no reference to

any such house in the site inspection plan (Exh. P-6)

to which Madho Singh (PW-5) himself was an

attesting witness.

26

CRIMINAL APPEAL NO(S). 116 OF 2012

50. It may be noted here that the name of the father

of the witness (PW-5) is also Narsingh. However, the

witness (PW-5) did not state that the accused persons

came to his house and started acting aggressively.

51. The witness Madho Singh (PW-5) also stated

that there is a field of Bholiya in front of his house.

However, the site inspection plan (Exh. P-6) to which

he was an attesting witness, does not mention about

the existence of field of Bholiya within the vicinity of

the house of Madho Singh (PW-5). On the contrary,

the site inspection plan records (Exh. P-6) that the

incident took place in the field of Gopya.

52. In stark contravention to the version as deposed

by the witness (PW-5), the FIR records the fact that

the incident started when the accused persons were

trying to destroy the hut of Jagya (PW-3) and Ramesh

tried to intervene on which, the accused persons beat

him up. The theory put forth by the witness (PW-5)

that Ramesh was casually sitting at his house

smoking Bidi when the incident took place is

materially different from the initial version of the

prosecution as set out in the FIR.

53. Therefore, the entire case of the prosecution

which is based on the testimony of Madho Singh (PW-

27

CRIMINAL APPEAL NO(S). 116 OF 2012

5) and Puniya (PW-12) becomes doubtful. Both these

witnesses have given highly contradictory versions

regarding the manner in which the incident started

(genesis of the occurrence) and the place where

Ramesh was assaulted. Each denies the presence of

the other at the crime scene in their depositions.

54. At the cost of repetition, we may reiterate that

contrary to the version of Madho Singh (PW-5) that

he alone lifted Ramesh and took him to the house,

the FIR records that the first informant, Gobariya

(PW-2) and, Madho Singh (PW-5), together picked up

Ramesh and brought him home.

55. Six accused persons who were named by Madho

Singh (PW-5) in his deposition as having jointly

assaulted Ramesh along with the convicted co -

accused were acquitted by the trial Court, and their

acquittal was never challenged any further. Thus, we

find the testimony of Madho Singh (PW -5) to be

doubtful and he falls within the category of a

“partially reliable witness”. To act upon his

testimony, the prosecution would be required to

provide independent and credible corroborati ve

evidence. However, it can be clearly seen that the

prosecution has failed to provide any corroborative

28

CRIMINAL APPEAL NO(S). 116 OF 2012

evidence to render the testimony of (PW-5)

trustworthy or reliable.

56. The FIR was lodged on the day next to the

incident wherein, only two accused namely

Govardhan and accused-appellant were alleged to be

armed with sharp weapons. Since the fact regarding

Madho Singh (PW-5) having assisted in the process

of lifting Ramesh and taking him to his house in an

injured condition is mentioned in the FIR, it can

safely be presumed that the witness (PW-5) must

have told the entire details of the incident to the

informant (PW-2). In such event, the informant (PW-

2) while narrating the incident to the police, would

not have missed out on the fact that four assailants

namely Bhima, Govardhan, Raja Ram and accused-

appellant were holding sharp weapons and used the

same to assault Ramesh.

57. The site inspection plan (Exh. P-6) does not

record availability of any source of light at the crime

scene and hence, it is hard to believe that the alleged

eyewitnesses (PW-5 and PW -12) could have

accurately identified the particular weapon being

used by the accused to assault Ramesh. Both the

alleged eyewitnesses (PW-5 and PW-12) have tried to

29

CRIMINAL APPEAL NO(S). 116 OF 2012

supress the genesis of occurrence and also changed

the crime scene and hence, their presence at the spot

becomes doubtful.

58. In this regard, reference may be made to the

decision of this Court in Pankaj v. State of

Rajasthan

9, wherein it was emphasised that when

the genesis and manner of the incident itself are

doubtful, conviction cannot be sustained. The Court

held as under: -

“25. It is a well-settled principle of law that

when the genesis and the manner of the

incident is doubtful, the accused cannot be

convicted. Inasmuch as the prosecution has

failed to establish the circumstances in which

the appellant was alleged to have fired at the

deceased, the entire story deserves to be

rejected. When the evidence produced by the

prosecution has neither quality nor

credibility, it would be unsafe to rest

conviction upon such evidence. After having

considered the matter thoughtfully, we find

that the evidence on record in the case is not

sufficient to bring home the guilt of the

appellant. In such circumstances, the

appellant is entitled to the benefit of doubt.”

(Emphasis Supplied)

59. Similarly, in Bhagwan Sahai and Another v.

State of Rajasthan

10, this Court reiterated that

9

(2016) 16 SCC 192.

10

AIR 2016 SC 2714.

30

CRIMINAL APPEAL NO(S). 116 OF 2012

once the prosecution is found to have suppressed the

origin and genesis of the occurrence, the only proper

course is to grant the accused the benefit of doubt.

The Court observed as follows: -

“8. The aforesaid view of the High Court is devoid

of legal merits. Once the Court came to a

finding that the prosecution has suppressed

the genesis and origin of the occurrence and

also failed to explain the injuries on the

person of the accused including death of

father of the appellants, the only possible and

probable course left open was to grant benefit

of doubt to the appellants. The appellants can

legitimately claim right to use force once

they saw their parents being assaulted and

when actually it has been shown that due to

such assault and injury their father

subsequently died. In the given facts, adverse

inference must be drawn against the

prosecution for not offering any explanation

much less a plausible one. Drawing of such

adverse inference is given a go-by in the case of

free fight mainly because the occurrence in that

case may take place at different spots and in

such a manner that a witness may not

reasonably be expected to see and therefore

explain the injuries sustained by the defence

party. This is not the factual situation in the

present case.”

[Emphasis Supplied]

60. In the present case, the prosecution has failed

to establish the genesis of the occurrence and the

place of incident with any degree of certainty. The FIR

speaks of the demolition of a hut by the accused

31

CRIMINAL APPEAL NO(S). 116 OF 2012

persons near the residence of Jagya (PW-3). However,

Madho Singh (PW-5) shifted the crime scene to

nearby his own house and denied any demolition.

Puniya (PW-12) claimed that the assault occurred in

the field of Gopya. Both of these witnesses (PW-5 and

PW-12) have contradicted each other as well as the

documentary evidence, viz. the site inspection plan

(Exh. P-6). They do not acknowledge each other’s

presence at the crime scene. Such conflicting

versions cannot co-exist within a credible narrative.

The suppression of the genesis of occurrence and the

shifting of the place of incident demolish the very

substratum of the prosecution case.

61. In this background, we are of the firm opinion

that it would not be safe to uphold the conviction of

the accused-appellant and the three co-accused

namely, Govardhan, Raja Ram and Bhima, as the

testimony of the so-called eyewitnesses Madho Singh

(PW-5) and Puniya (PW-12) is full of contradictions

and inherent improbabilities.

62. Since the entire case of the prosecution has

fallen, all four convicted accused persons are entitled

to be extended the benefit of doubt. Hence, we are

inclined to extend the benefit of this judgment, in

32

CRIMINAL APPEAL NO(S). 116 OF 2012

exercise of our powers under Article 142 of the

Constitution of India, 1950 to the three co-accused,

namely, Govardhan, Raja Ram, and Bhima, who have

not challenged their conviction before this Court.

63. As a result of the above discussion, we feel

persuaded to hold that the conviction of the appellant

and the three co-accused, namely, Govardhan, Raja

Ram and Bhima as recorded by the trial Court and

affirmed by the High Court do es not stand to

scrutiny. Resultantly, the impugned judgments are

set aside.

64. Accordingly, the appellant and the said co-

accused are acquitted of the charges. They shall be

released from custody forthwith, if not wanted in any

other case.

65. The appeal is accordingly, allowed.

66. Pending application(s), if any, shall stand

disposed of.

….……………………J.

(SANJAY KAROL )

...…………………….J.

(SANDEEP MEHTA)

NEW DELHI;

OCTOBER 17, 2025.