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PETITIONER:

NAIN SINGH AND ANR.

Vs.

RESPONDENT:

STATE OF UTTAR PRADESH

DATE OF JUDGMENT22/02/1991

BENCH:

PANDIAN, S.R. (J)

BENCH:

PANDIAN, S.R. (J)

FATHIMA BEEVI, M. (J)

CITATION:

1991 SCR (1) 685 1991 SCC (2) 432

JT 1991 (1) 596 1991 SCALE (1)334

ACT:

Constitution of India, 1950-Article 136-Special Leave

Petition -Criminal matters-Appeal arising from concurrent

finding of fact-Scope of interference.

HEADNOTE:

On 23.12.1976 at about 1 p.m. when Bali (deceased)

along with PWs 1 and 5 was in his field, the four appellants

each armed with a Lathi, along with Braham Singh armed with

a 'Ballam', came there. On the exhortation of Chandroo, all

other appellants and Braham Singh attacked Bali with their

respective weapons and caused injuries to him. While PW-3

tried to save her husband, she too was injured. When PW-1

along with PWs 3 and 4 rushed to the scene of occurrence,

the assailants took to their heels. Injured Bali was

removed to the hospital. He succumbed to his injuries on

the same day at about 7.45 p.m.

It seems that there was trained relationship between

the appellants and the deceased for a considerable length of

time over grazing of cattle, resulting in damage to the

standing crops. On account of this, there was simmering

feeling between the parties. Added to that, there were

certain criminal prosecutions between the parties, pending

for over a period of two years.

The four appellants along with Braham Singh (since

acquitted by the Trial Court) took their trial. The Trial

Court found the four appellants guilty of offences under

section 302 read with section 34 and under section 323 read

with section 34 IPC and sentenced them to undergo

imprisonment for life and to six months' rigorous

imprisonment respectively. The 5th accused, Braham Singh,

was acquitted.

On appeal, the High Court held that the prosecution had

not made out a case punishable under section 302 read with

section 34 IPC but only under section 304, Part II, IPC read

with section 34 IPC. The High Court sentenced each of them

to undergo rigorous imprisonment for a period of five years.

The conviction of all the appellants under section 323 read

with 149 IPC was altered into one under section 323 read

with 34 IPC and the sentence of six months' rigorous

imprisonment was retained.

686

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Before this Court it was contended on behalf of the

appellants that since both the courts below had overlooked

the glaring infirmities and ignored the material evidence

supporting the defence theory as well as the manifest errors

appearing in the evidence, this Court would be justified in

interfering with the concurrent findings of both the courts.

According to the learned counsel, the prosecution had

shifted the scene of occurrence, changed the time of

occurrence, unduly delayed the registration of the case and

put forth a false explanation for its tardiness both in the

matter of registration and investigation of the case.

Allowing the appeals by setting aside the convictions

and the sentence imposed by the High Court, this Court,

HELD: (1) Under Article 136, Interference by the

Supreme Court will be called for even with the findings of

fact given by the High Court, if the High Court has acted

perversely or otherwise improperly. [690F]

The State of Madras v. A. Vaidyanatha Iyer, [1958]

S.C.R. 580; Himachal Pradesh Administration v. Shri Om

Prakash, [1972] 1 S.C.C. 249; Balak Ram v. State of U.P.,

[1975] 3 S.C.C. 219; Arunachalam v. P.S.R. Sadhananthan,

[1979] 3 S.C.R. 402; State of U.P. Hamit Singh & Ors.,

[1990] 3 S.C.C. 55; State of U.P. v. Pheru Singh & Ors.,

[1989] Suppl. 1 S.C.C. 288, referred to.

(2) The evidence adduced by the prosecution falls short

of the test of reliability and acceptability and as such it

is highly unsafe to act upon it. [697H]

(3) A thorough and scrupulous examination of the facts

and the circumstances of the case leads to an irresistible

and inescapable conclusion that the prosecution has

miserably failed to establish the charges leveled against

these appellants by producing cogent, reliable and

trustworthy evidence. Both the Courts below instead of

dealing with the intrinsic merits of the evidence of the

witnesses, have acted perversely by summarily disposing of

the case, pretermitting the manifest errors and glaring

infirmities appearing in the case. [698A-B]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeals Nos.

251 & 307 of 1990.

From the Judgment and Order dated 11.8.1989 of the

Allahabad High Court in Crl. A. No. 1239 of 1978.

687

S.C. Maheshwari, Y.C. Maheshwari, Miss Sandhya Goswami

and P.K. Chakraborty for the Appellants.

Prithvi Raj, Prashant Chaudhary and Dalveer Bhandari

for the Respondent.

The Judgment of the Court was delivered by

S. RATNAVEL PANDIAN, J. The appellants in criminal

appeal No. 251 of 1990 were accused Nos. 3 and 4 before the

trial court, namely, the VIIth Additional Sessions Judge,

Meerut, whereas the appellants in criminal appeal No. 307 of

1990 were accused Nos. 1 and 2 before the said court. These

four appellants along with one Braham Singh (since

acquitted) took their trial for offences under Sections 302

read with section 149 IPC and 323 read with section 149 IPC.

Besides, these four appellants were also charged for offence

under section 147 IPC whilst Braham Singh under section 148

IPC. The trial court, on appreciation of the evidence

adduced by the prosecution, found the 5th accused, Braham

Singh, not guilty of any charges and acquitted him.

However, these four appellants were found guilty of offences

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under section 302 read with section 34 IPC and under section

323 read with section 34 IPC and sentenced to undergo

imprisonment for life and to six months' rigorous

imprisonment respectively. The High Court on appeal

preferred by all the appellants, for the reasons mentioned

in its judgment, held that the prosecution has not made out

a case punishable under section 302 read with section 34 IPC

but only under section 304, Part II, IPC read with section

34 and consequently set aside the conviction and the

sentence imposed for the offence under section 302 read with

section 34 IPC and instead convicted them under section 304

Part II, read with section 34 IPC and sentenced each of them

to undergo rigorous imprisonment for a period of five years.

The conviction of all the appellants under section 323 read

with 149 IPC was altered into one under section 323 read

with 34 IPC and the sentence of six months' rigorous

imprisonment was retained. The facts of the case which have

given rise to the present appeals as unfolded by the

evidence, can be briefly stated thus:

Appellants in criminal appeal No. 307/90 are brothers.

Similarly appellants in criminal appeal No. 251/90 and

Braham Singh (who was arrayed as accused No. 5 before the

trial court) are also brothers among themselves.

PWs 1 and 5 are the brother and wife respectively of

one Bali

688

(the deceased herein). PW-1 and the deceased Bali had a

common 'Chak'. The appellants belonged to a village named

Kaulbhandora, which is at a distance of about four furlongs

from the Chak, situated just adjacent to the road and

'Rajbaha'. The appellants used to take the 'Rajbaha' Patri

in auction for grazing their cattle. It seems that there

was strained relationship between the appellants and the

deceased for a considerable length of time. According to

the prosecution the cattle belonging to the appellants, when

allowed to enter the 'Patri' (grazing field) used to stray

into the field of Bali and cause damage to the standing

crops. Although Bali made a protest, it did not yield any

result. On account of this, there was simmering feeling

between the parties. Added to that, there were certain

criminal prosecutions between the parties, pending for over

a period of two years.

On 23.12.1976 at about 1 p.m. when Bali along with PWs-

1 and 5 was in his field, these appellants each armed with a

Lathi along with Braham Singh armed with a 'Ballam' came

there. On the exhortation of Chandroo, all other appellants

and Braham Singh attacked Bali with their respective weapons

and caused injuries to him. While PW-3 tried to save her

husband, she too was injured. When PW-1 along with PWs 3

and 4 rushed to the scene of occurrence, the assailants took

to their heels. Injured Bali was removed to the Hastinapur

hospital for treatment. PW-6, the medical officer attached

to the said hospital examined Bali and found on his person

as many as fifteen injuries of which injury No. 15 was a

stab wound and most of the other injuries were contusions.

PW-6 prepared a medical report, Exhibit Ka-6 and on the same

day he examined PW-5 and found on her person 2 contusions in

respect of which he prepared the injury report (Ex. Ka-7).

However, Bali succumbed to his injuries on the same day at

about 7.45 p.m. PW-1 lodged a written report (Ex. Ka-1) at

about 8 p.m. before PW-2 a Head Constable attached to the

Hastinapur Police Station. PW-2 prepared Exhibit Ka-2 on

the basis of Ex. Ka-1 and made G.O. entry i.e. Ex. Ka.-3.

PW-9, the then sub-Inspector of Police attached to the

Police Station took up the investigation and examined PW-1

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and others. He held the inquest over the dead body of the

deceased and prepared Ex. Ka-11, PW-5 could not make any

statement as she was unconscious. The PW-9 inspected the

spot and prepared a site plan Ex. Ka.-14 and seized certain

material objects including a piece of wood and blood stain

earth.

PW-7, yet another Medical Officer, conducted the post

mortem examination on the dead body of the deceased Bali on

24.12.1976 and found a number of injuries, as noted in his

post mortem report

689

Ex. Ka-8. According to PW-7, the death was due to shock and

haemorrhage as a result of the injuries sustained by the

deceased. PW-9, after completing the investigation, laid

the chargesheet against all the five accused. Though the

appellants admitted the earlier criminal prosecutions

between the parties, totally denied their complicity with

the offence of murder. Of the witnesses examined, PWs 4 and

5 corroborated the testimony of PW-1 but PW-3 was declared

hostile as this witness mentioned only the name of the first

appellant and denied participation of rest of the appellants

and Braham Singh and also the presence of the ocular

witnesses except PW-5. The trial court, however, found

accused Nos. 1 to 4 (all the appellants herein) alone guilty

of the offence, convicted and sentenced them as

aforementioned and acquitted the 5th accused Braham Singh.

On appeal, the High Court accepted the testimony of

PWs-1, 4 and 5 holding that they are giving a consistent

version in regard to the participation of the appellants in

attacking the deceased and agreed with the finding of the

trial court that these appellants were responsible for

inflicting the injuries on the deceased Bali and PW-5. But

coming to the nature of the offence perpetrated on the

deceased, the High Court held the offence as one punishable

under section 304 Part II but not under section 302 IPC and

consequently altered the conviction and the sentence as

indicated above while retaining the conviction under section

323 against all the appellants for causing injuries to PW-5.

Hence, the present appeals are directed by the appellants

who were accused Nos. 1 to 4 before the trial court.

Mr. Maheshwari, Senior Counsel appearing on behalf of

the appellants in both the appeals, forcibly contended that

since both the courts below have overlooked the glaring

infirmities and ignored the material evidence supporting the

defence theory as well as the manifest errors appearing in

the evidence, this Court would be justified in interfering

with the concurrent findings of both the courts, otherwise

substantial injustice would be caused to the appellants.

According to the learned counsel, the prosecution has

shifted the scene of occurrence, changed the time of

occurrence, unduly delayed the registration of the case and

put forth a false explanation for its tardiness both in the

matter of registration and investigation of the case; that

PW-9; the investigating officer, has deliberately feigned

ignorance of the receipt of Ex. Kha-1 in order to shield his

indolence and failure in immediately and promptly taking up

the investigation; that PW-1 and 4 in order to ventilate

their grievance which they were bearing against the

appellant's party on account of the previous

690

animosity and simmering feelings that existed between them

and to settle their personal scores; that the credibility of

these two witnesses is impaired and their testimony is

successfully impeached. The learned defence counsel further

states that a thorough and strict scrutiny of the evidence

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furnished by PWs-1, 3 and 4 shows that the entire

prosecution story in concocted, fanciful and incredible and,

as such, it deserves to be rejected with scorn and that both

the courts below have completely pretermitted all the

pitfalls in the prosecution and have summarily disposed of

the case without subjecting the evidence under the usual

test of scrutiny.

Before we analyse the above contentions with reference

to the evidence adduced by the prosecution and see whether

the prosecution case suffers from any illegality and the

conclusion of the courts below from perversity, we shall

deal with the scope of interference of this Court in an

appeal arising from concurrent findings of fact. This Court

in The State of Madras v. A. Vaidyantha Iyer, [1958] SCR 580

at 588 while interpreting the scope of Article 136 of the

Constitution has ruled as follows:

"In Art. 136 the use of the words "Supreme Court

may in its direction grant special leave to appeal

from any judgment, decree, determination, sentence

or order in any cause or matter passed or made by

any court or tribunal in the territory of India"

shows that in criminal matters no distinction can

be made as a matter of construction between a

judgment of conviction or acquittal.

Having made the above rule, it has been said that the

interference by the Supreme Court will be called for even

with the findings of fact given by the High Court, if the

High Court has acted perversely or otherwise improperly.

Jaganmohan Reddy, J. agreeing with the view taken in

Vaidyanatha Iyer's case has observed in Himachal Pradesh

Administration v. Shri Om Prakash, [1972] 1 SCC 249 thus:

"In appeals against acquittal by special leave

under Article 136, this Court has undoubted power

to interfere with the findings of fact, no

distinction being made between judgments of

acquittal and conviction, though in the case of

acquittals it will not ordinarily interfere with

the appreciation of evidence or on findings of fact

unless the High Court "acts perversely or otherwise

improperly".

691

Again in Balak Ram v. State of U.P., ([1975] 3 SCC 219

at page 227) this Court held as follows:

"The powers of the Supreme Court under Article 136

are wide but in criminal appeals this Court does

not interfere with the concurrent findings of fact

save in exceptional circumstances."

In Arunachalam v. P.S.R. Sadhananthan. [1979] 3 SCR 482

at page 487 this Court while reinstating the principles laid

down in Vaidyanatha Iyer & Om Prakash, cases, has stated

thus:

"The power is plenary in the sense that there are

no words in Article 136 itself qualifying that

power. But the very nature of the power has led

the Court to set limits to itself within which to

exercise such power. It is now the well established

practice of this Court to permit the invocation of

the power under Article 136 only in very

exceptional circumstances, as when a question of

law of general public importance arise or a

decision shocks the conscience of the Court. But

within the restrictions imposed by itself, this

Court has the undoubted power to interfere even

with findings of fact making no distinction between

judgment of acquittal and conviction, if the High

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Courts in arriving at those findings, has acted

"perversely or otherwise improperly".

See also State of U.P. v. Hamik Singh & Ors., [1990] 3

SCC 55 and State of U.P. v. Pheru Singh & ORs., [1989] Supp.

1 SCC 288 to which one of us (S. Ratnavel Pandian, J.) was a

party.

Bearing the above proposition of law, we shall now

examine the evidence and see whether the concurrent findings

of fact call for an interference.

With regard to the place of occurrence, learned counsel

drew our attention to the first information report and to

the evidence of the witnesses including that of PW-9, and

pointed out that the prosecution had changed the scene of

occurrence. In the first information report under column

'place of occurrence', it is mentioned as 'Jungle Village,

Ganeshpur'. PW-1 in his cross-examination has admitted that

the 'Chak' in which the murder took place is situated in the

jungle of village Bhandora and not in the jungle of village

Ganeshpur. A suggestion, though denied, has also been made

by the defence to PW-1 that

692

they have changed the place of occurrence from Ganeshpur to

Bhandora. PW-2 who was then the Head Constable attached to

Hastinapur Police Station, states that on submission of Ex.

Ka-1 by PW-1 he prepared a chik report Ex. Ka-2 and that he

mentioned the place of occurrence as jungle of village

Ganeshpur only on the basis of the written report.

It is the evidence of PW-9 that he reached village

Bhandora and did spot inspection thereby admitting that the

place of occurrence was village Bhandora and not Ganeshpur.

a scrutiny of Ex. KA-1 shows that PW-1 did not give the

specific place of occurrence in that earliest document. It

appears from the evidence of PWs 1 and 9 as well as the

entry under column No. 2 of the First Information Report

that the prosecution was probing in darkness even in respect

of the place of occurrence. Even in Ex. Ka-3 a memo

prepared by PW-9 for seizure of the blood-stained earth, the

place of occurrence is not mentioned. Hence, we hold that

the submission made on behalf of the defence even at the

threshold that the place of occurrence is changed or at any

rate not specifically fixed, cannot be said to be without

force.

We shall then scrutinise the evidence with regard to

the time of occurrence. According to the prosecution, the

occurrence took place at about 1.00 p.m. on 23.12.1976.

Immediately, after the occurrence, the injured Bali & PW-5

were brought to the hospital which is at a distance of three

miles from the scene of occurrence. Ex. Kha-1 was prepared

by the Medical Officer i.e. PW-6 on examing Bali. Ex. Ka-7

is a report prepared by medical officer PW-6 relating to the

injuries found on PW-5. This document Ex. Ka-7 reveals that

PW-5 was examined at about 3.30 p.m. Therefore, the injured

Bali could have been examined by PW-6 earlier to 3.30 p.m.

It may be mentioned here what PW-1 has stated that they

reached the hospital approx, between 2 and 3 p.m. The

medical officer has opined that the injuries found on the

injured could have been caused within six hours. When a

specific question had been addressed to this medical officer

(PW-6) as to whether the injuries could have been caused at

about 5/6 a.m. he would say: "It could have been caused at

8'O clock". We are not rejecting the case of the

prosecution on this admission of the medical officer stating

that the probable time of the causation of the injuries

could be 8 a.m. But the question would be, even admitting

that the occurrence took place at about 1 p.m., whether the

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prosecution convincingly and satisfactorily established the

guilt of the appellants by leading cogent and reliable

evidence.

693

The next important point for determination is whether

the case has been promptly registered and the investigation

proceeded without causing undue delay thereby giving no room

enabling the prosecution party to deliberately concoct a

case against these four appellants. It transpires from the

evidence of PW-6 that he sent the information under Ex. Kha-

1 to the Police Station through his peon intimating the fact

of Bali having been bought to the hospital with a number of

bleeding injuries in a very serious condition and also of

PW-5 having been admitted in the hospital for treatment of

the injuries sustained by her and the said document Ex. Kha-

1 was sent by 4.30 p.m. on 23.12.1976 itself and the

hospital's peon had brought the Receipt evidencing the

handing over of the intimation to the police. It is only

thereafter that PW-1 prepared Ex. ka-1 and handed it over to

PW-2 at about 8 p.m. on 23.12.1976. According to PW-2,

after registration of the case, a death memo was received at

the Police Station at about 8.15 p.m. saying that Bali had

expired in the hospital at about 7.40 p.m.

According to PW-1, the distance between the hospital

and the police station is about 1 or 2 furlongs and that the

police station is not situated near the hospital.

Nonetheless PW-1 would admit when confronted further that

the distance between the gates of the hospital and the

police station would be about 50 steps. Be that as it may,

the fact ramains that both the hospital and the police

station are situated within a very short distance.

Admittedly, neither PW-1 nor any of PWs-3 and 4 went to the

police station to inform about the occurrence though they

reached the hospital even by 2 p.m. The only explanation

given by PW-1 is that he was busy enquiring about the

condition of his brother. This explanation of PW-1 is

totally unacceptable because after both injured persons,

namely, Bali & PW-5 were brought to the hospital they were

examined only by the medical officer, PW-6. There was

nothing preventing either PW-1 or any of the other witnesses

in going to the police station and informing the police, if

really they were eye witnesses to the occurrence and were in

the hospital from 2 p.m. onwards, leaving apart PW-5 who was

undergoing treatment in the hospital. The delayed

preparation of Ex. Ka-1 by PW-1 at the hospital after seven

hours of the occurrence and that too after the death of his

brother, leads to an indelible impression that PW-1 and

other interested persons who were enimically disposed

towards the appellants should have prepared Ex. Ka-1 after

due deliberation and consultation. The abortive

explanation for not going to the police station for six

hours after reaching the hospital is unworthy of credence.

694

The next and even more important point for

consideration is the much delayed investigation. The

conduct of PW-9 in not taking an immediate action even after

Ex. Kha-1 was handed over at the police station by 4.30 p.m.

or at any rate after receipt of Ka-1 and the death

intimation creates a suspicion in the veracity of the

prosecution case. Though PW-2 admits that he received the

death intimation by about 8.15 p.m., PW-9, the investigating

officer, has feigned total ignorance about Ex. Kha-1 stating

thus:

"Before this F.I.R. no intimation was received at

the police station about this occurrence that Bali

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was injured and admitted in the hospital and his

condition was critical. It is wrong that any

information was received at the Police Station

before this F.I.R. which I am concealing. I do not

know whether Ex. Kha-1 was received in the police

station or not. During the investigation Ex. Kha-1

never came to my knowledge. This paper came to my

knowledge during the investigation and I made a

copy of this in the case Diary. I do not know

whether this Letter was recorded in the General

Diary or not. No copy of G.D. is recoorded in my

case diary in connection with Ex. Kha-1. No such

note is there in my case diary that I had seen any

G.D. which is related to Ex Kha-1. I have not

recorded any statement of the H.M. relating to Ex.

Kha-1."

We shall examine whether PW-9 took up the investigation

at least after registration of the case without causing

further delay. PW-2 states that the investigating officer

took up the investigation at about 8 p.m. on 23.12.1976 and

went to the hospital and returned to the police station

only on the next day i.e. 24.12.1976 at 9.50 p.m. PW-9 has

lodged in his presence by PW-1 and that he immediately took

up the investigation during the course of which he examined

PW-1 and then come to the hospital where he examined the

medical officer Dr. B.D. Goel (PW-6) and saw the dead body

lying in the male ward. He continues to state that as PW-5

was in an unconscious condition, he could not examine her

and as the light went off, he could not prepare even the

Panchnama. This piece of evidence of PW-9 that he took up

the investigation even at 8 p.m. is not only contradicted

but also falsified by the testimony of PW-1 according to

whom after lodging the report he immediately came back to

the hospital and remained there till next morning and that

the Sub-Inspector (PW-9) came to the hospital for the first

time in the morning of 24.12.1976 and only thereafter he was

695

examined. PW-4 also states that the investigating officer

came to the hospital only in the next morning. PW-6, the

medical officer, does not speak of the Sub-Inspector having

came to the hospital on the night of occurrence and has

stated that he did not remember of the Sub-Inspector or any

constable reaching the hospital after receipt of the death

intimation or any one examining him on that date. The said

pieces of evidence, namely, the total unawareness of PW-9

about the existence of Ex. Kha-1 as well as the entry in the

general diary made thereon and the diametrically

contradictory evidence of PW-9 on the one hand and that of

PWs-1,4 and 6 on the other, clearly indicate that either PW-

9 did not have any knowledge about the incident till the

next morning or even if he had such knowledge, he

deliberately delayed the investigation; and his present

version is nothing but a deliberate perjury and as such his

evidence has to be thrown overboard as unworthy of credence.

In the cross-examination, it is admitted by PW-9 that

he did not write the names of the appellants/accused in the

Panchnama and that he did not try to know the kinds of

weapons that had been used by the assailants. On the basis

of this admission a suggestion had been addressed to him

that the FIR relating to this incident, was prepared and

lodged only after preparation of the Panchnama thereby

indicating that the FIR was anti-dated.

We shall now scan the evidence of PWs-1, 3 and 4

examine whether their evidence could be accepted and acted

upon. Admittedly, there was deep rooted animosity between

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the prosecution party and the appellants over a period of

some years and they have developed bad blood. It is the

evidence of PW-1 that there were a number of criminal cases

against deceased Bali along with one Birbal Kishore and Omi

who were persons of notorious character in that village.

Besides, there were some more cases and counter cases

between the parties. A suggestion has been addressed to PW-

1 that his brother Bali was having close connection with one

Ramanand who was a known decoit belonging to their village

but PW-1 has denied the relationship of Bali with Ramanand.

PW-4 admits that there was a dispute between Bali and the

appellants in which Bali had beaten them and in that case he

was a co-accused along with PW-1 and deceased Bali. PW-3

who has been treated as a hostile witness since he did not

implicate all the appellants by their names except Chandroo

has admitted that there was a case against Bali and Birbal

Kishore in which he was a witness on the side of Bali and

that there was a double murder case in which he (PW-3) was

an accused and convicted. In that murder case one Roop

696

Ram, cousin of appellant Chndroo was a witness on the

prosecution side. Thus it comes out of the evidence of

these witnesses that all was not well between the parties

and each one was having grudge against the other.

As pointed out by Mr. Maheshwari, learned counsel

appearing for the appellants, the conduct of PW-1 belies his

presence at the sence of occurrence as he did not intervene

when his brother (deceased) and sister-in-law (PW-5) were

attacked by the appellants and another and if PW-1 had

really been at the scene, he having been a co-accused along

with his brother in previous case, would not have been

standing as a mute spectator without taking any part in the

occurrence in which case he would also have received

injuries. In Ex. Ka-1 he has mentioned PWs-3 and 4 as eye

witnesses who were enemically disposed of towards the

appellants and who were interested in the prosecution. As

seen from the evidence of these three witnesses, they all

belong to one group either having been co-accused in one

case or other along with Bali or taking up the cause of Bali

when the latter was involved in other criminal cases. In

fact, one sentence in Ex. Ka-1 would indicate that PWs-1, 3

and 4 were not at the scene at the time of occurrence but

came to the spot later on. The relevant version in Ex. Ka-

1 reads: "On alarm, I and my uncle Chotte Lal and Shiv

Charan of the village reached the spot and saved them" Of

course, he at the next breath would claim to have witnessed

the occurrence. We have also noted that the place of

occurrence is not satisfactory fixed; and that the evidence

of PW-1 giving the reasons for the presence of his deceased

brother with PW-5 in the field, is also falsified by the

evidence of PW-9. According to PW-1, his deceased brother

and PW-5 were harvesting sugarcane in the field at the time

of occurrence. But PW-9 has deposed that at the time of

spot inspection he did not find any Bugi, Dokra, Phawara,

Dranti or harvested sugarcane. This contradictory evidence

when taken along with our finding with regard to the

fixation of the scene of occurrence goes to show that PW-1

could not have been present at the scene of occurrence and

only after a deliberation he has posed himself as one of the

eye-witnesses and projected PWs 3 and 4 as other eye

witnesses along with him. PW-4 during the course of cross-

examination has admitted that except himself, PWs 1 & 5,

none reached the scene and people came to the scene of

occurrence later on. After reaching the hospital along with

injured, PW 4 states that all of them remained in the

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hospital near the dead body and that he went to the police

station in the morning of the next day at about 7.00 a.m. As

we have pointed out earlier, PW 3 has not implicated all the

appellants except Chandroo by name and as such, he has been

treated

697

as a hostile witness. PW 3 is none other than the uncle of

PW 1 and the deceased, therefore, in view of the inherent

infirmities adversely affecting the testimony of these eye

witnesses, it would not be safe to convict the appellants on

the scanty evidence. The author of the earliest document

Ex. Ka-1, namely, PW-1 seems to be a man of dubious

character and his evidence is completely tarnished. A

thorough scrutiny of the evidence shows that the testimony

of the eye witness is ambulatory and vacillating and compels

this Court not to place any safe reliance.

Lastly, we are left with the evidence of PW-2 who is an

injured witness. The presence of PW-2 at the scene is

fortified by the injuries found on her person. After

scanning her evidence very carefully, we are unable to

safely accept her evidence since it is not only tainted with

highly interestedness but also a coloured version, falling

in line with that of PW 1. She states that she was

unconscious for 2 days and that it was she who told PWs 1

and 4 as to who were the assailants. Immediately in the

next breath, PW 5 comes forward to say that on the next day

she told all the facts to the investigating officer and

again became unconscious after coming to know the death of

her husband. To a Court question, she gives a prevaricating

answer that she was conscious for some time and then became

unconscious. Though at one time, she testifies that she was

beaten with sticks, she suddenly changes her evidence giving

a contradictory version that she did not know whether she

was beaten or not. Though all the witnesses in a parrot-

like manner deposed that these 4 appellant along with Braham

Singh armed with ballam attacked the deceased, their

evidence when subjected to strict examination becomes

unworthy of credence. The Trial Court on entertaining a

grave doubt about the participation of Braham Singh with a

ballam, acquitted him despite the fact that PW 6 has noted a

stab wound on the inner side of left thigh measuring 2 x 1 x

1.5 cms which injury in the opinion of the medical officer

could have been caused by a sharp edged weapon like

'ballam!. The acquittal of Braham Singh was not challenged

by the prosecution before the High Court, and therefore, we

are not called upon to discuss on this aspect of the case.

However, it is clear that the trial Court was not inclined

to accept a part of the evidence of these 3 witnesses i.e.

PWs 1, 4 & 5 relating to the participation of Braham Singh.

In our considered opinion, the evidence, adduced by the

prosecution, falls short of the test of reliability and

acceptability and as such it is highly unsafe to act upon

it.

698

A thorough and scrupulous examination of the facts and

the circumstances of the case leads to an irresistible and

inescapable conclusion that the prosecution has miserably

failed to establish the charges levelled against these

appellants by producing cogent, reliable and trustworthy

evidence. Both the Courts below instead of dealing with the

intrinsic merits of the evidence of the witnesses, have

acted perversely by summarily disposing of the case,

pretermitting the manifest errors and glaring infirmities

appearing in the case.

For all the aforementioned reasons, we allow the

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appeals by setting side the convictions and the sentence,

imposed by the High Court and acquit the appellants. The

bail bonds, executed by the appellants, are discharged.

R.S.S. Appeals allowed.

699