Betal
Singh Vs. The State of M.P [1996] INSC 421 (19 March 1996)
G.B.
Pattanaik (J) G.B. Pattanaik (J) Mukherjee M.K. (J) G.B. Pattanaik,J.
CITATION:
JT 1996 (3) 591 1996 SCALE (3)16
ACT:
HEAD NOTE:
The
appellant who had been acquitted of the charges levelled against him having
been convicted under Section 302 I.P.C. by the High Court of Madhya Pradesh in
an appeaI against the order of acquittal filed by the State has preferred this
appeal.
Appellant
along with four others stood their trial before the court of Additional
Sessions Judge, Gwalior. The appellant was charged under
Sections 302,120 B and 332 I.P.C.for having caused the murder of Head Constable
Rajendra Singh whereas other four persons stood charged under Sections 120B,
332, 201 and 225 I.P.C. for having agreed to commit the offence with the
appellant Betal Singh.
The
learned Trial Judge acquitted all the accused persons.
In the
appeal filed by the State against the said order of acquittal the High Court
maintained the order of acquittal passed against other four persons but altered
the order of acquittal so far as the appellant is concerned and convicted the
appellant under Section 302 I.P.C. and sentenced him to the imprisonment of
life.
The
prosecution case in nutshell is that one Sukhawasi had lodged a report in
Police Station, Dahat against co- accused namely Kishore Singh, Vir Singh and Kundan
Singh which was recorded by the deceased Rajendra Singh, Head Constable of the
Police Station. On the basis of the F.I.R. a criminal case had been registered
under Section 451 of the Indian Penal Code. After completion of investigation
necessary challan was to be filed in the court of Judicial Magistrate. Ist
Class, Gwalior. Constable Prem Singh was on his
way to Gwalior on 22. 9.1978. When the said Constable
reached the Bus Stand near police Station n, Dahat, the deceased Head Constable
also reached the Bus Stand for checking the Country Liquor Shop. At that point
of time appellant - Betal Singh reached the spot with a gun flung on his
shoulder and made some discussion with the deceased Head Constable. It appears
that the appellant was requesting the Head Constable to persuade Constable Prem
Singh to give another suitable date for the accused persons so that their
agricultural operation will not suffer and finally Constable Prem Singh was
persuaded to postpone the date of filing of challan. Said appellant Betal Singh
then took some liquor and started abusing the deceased Head Constable as to why
he had registered criminal case against his father and brothers on the
purported reports of some chamars. Suddenly the appellant fired the gun and the
bullet hit the left side of the chest of the deceased. The appellant thereafter
rushed and boarded the standing bus and threatened the driver of the bus. The
Constable Prem Singh wanted to snatch away the gun from the appellant but he
was threatened. Then there was scuffle between the appellant and Prem Singh and
in the meanwhile other accused persons came and surrounded Constable Prem
Singh. The accused persons after snatching the gun from Constable Prem Singh
fled away to the nearby jungle. Prem Singh, PW. 1 then lodged a report at the
Police Station Behat and in the standing bus deceased Head Constable Rajendra
Singh was sent to the hospital but he succumbed to his injuries. A criminal
case on the basis of F.I.R. was registered and after investigation charge sheet
was filed against the accused persons as already stated. The accused persons
were then committed to the court of Session and were finally tried by the Additional
Sessions Judge. The defence plea of accused 2 to 5 was one of denial but appellant took the plea that the gun
which he was holding had been loaded and had been flung on his shoulder when
Constable Prem Singh, PW. 1 tried to snatch it from him and there was a scuffle
and during the said scuffle accidently the trigger was on and bullet hit
deceased Head Constable Rajendra Singh who was sitting at the Cot in Kalari
Shop on his chest and ultimately he died.
The
prosecution examined several witnesses to establish the charge against the
accused persons of whom PWs 1, 2, 4, 5 and 10 are the eye witnesses to the
occurrence. PW. 9 is the Head constable at the Police Station who had recorded
the First Information Report. PW-13 said seized the rifle and empty cartridges
which were produced by the appellant Betal Singh while in custody. PW-14 had
also investigated into the offence and made some seizure of incriminating
articles. PW. 8 is the doctor who had conducted autopsy of the dead body of
deceased Rajendra Singh. The other witnesses are formal witnesses. Though PWs
1, 2, 5 and 10 were examined by the prosecution as the occurrence witnesses but
except PW. 1 the rest did not support the prosecution during trial and were
accordingly cross-examined in accordance with Section 154 of the Evidence Act. The
learned Trial Judge on discussion of the entire materials on record and more
particularly the evidence of Constable Prem Singh, PW. 1 as well as on account
of certain other suspicious circumstances in the matter of investigation came
to the conclusion that the prosecution has failed to establish the charges
against the accused persons beyond reasonable doubt and under the circumstances
the defence story putforth by the appellant Betal Singh appears to be correct
and true and thus acquitted the accused persons. In the appeal against the said
order the High Court examined the reasons given by the Trial Court and came to
the conclusion that the said reasons are wholly unsustainable in law. The High
Court then re-appreciated the evidence of PW. 1 and came to the conclusion that
his evidence with regard to substratum of the prosecution case gets
corroboration from the medical evidence and there is not an iota of material in
support of the plea of appellant Betal Singh that it was a case of accidental
firing while Betal Singh and PW. 1 were having a scuffle among themselves. The
High Court ultimately came to the conclusion that the prosecution case so far
as appellant Betal Singh is concerned has been proved beyond reasonable doubt
and accordingly he was convicted under Section 302 I.P.C. So far as other
accused persons are concerned the High Court, however, agreed with the learned
Trial Judge.
maintained
their order of acquittal.
Mr. Gambhir,
the learned Senior Counsel appearing for the appellant contended that though
the power of the High Court in an appeal against the order of acquittal is the
same as in an appeal from conviction but without disturbing the sound reasonings
of the Trial Court for according an order of acquittal the High Court could not
have altered an acquittal to a conviction. The learned counsel further urged
that the High Court in disposing of the appeal has failed to notice various
infirmities which create doubt about the prosecution case and as such the impugned
order convicting the appellant is vitiated. The learned counsel lastly urged
that the sole testimony of PW.1 could no. have formed the basis for conviction
in view of inherent inconsistencies and absurdity in his evidence and on this
ground the conviction of the appellant cannot be sustained.
On
examining the material on record for the grounds to be indicated hereunder we
do not find any substance in any of the contentions raised by Mr. Gambhir, the
learned counsel appearing for the appellant.
It is well
settled that the High Court's power in disposing of appeals from conviction or
acquittal are essentially the same. It is equally well settled that where the
credibility of the evidence depends upon factors other than the demeanor of
witnesses, the appellate Court is free to come to its own conclusions as to the
credibility. But at the same time if the view taken by the Trial Court in
acquitting the accused is not palpably wrong there would be no occasion for
reversal of the order of acquittal. Further the High Court should also consider
the reasons advanced by the Trial Court before altering the order of acquittal
to order of conviction. Bearing in mind these principles let us now examine the
reasons advanced by the learned Trial Judge in. according order of acquittal.
Let it be stated that the controversy centers around a very narrow compass
namely whether the appellant fired at the deceased Head Constable as deposed by
PW. 1 or it was a case of accident as suggested by defence while there was a
scuffle between the appellant and PW. 1. The learned Trial Judge appears to
have focussed his attention to several irrelevant factors which occurred in the
course of investigation instead of focussing its attention to find out the
narrow controversy as stated earlier. In this context the finding of the Trial
Judge that the entry) No. 401 appears to be suspicious and the further finding
that there has been exaggeration to the occurrence is absolutely of no
significance. Then again learned Trial Judge committed serious error in
impeaching the evidence of Prem Singh, PW. 1 by examining the same with
reference to 161 statement of PW.5 and PW. 10 which is hit by Section 162 of
the Code of Criminal Procedure. The learned Trial Judge also committed an error
in recording a finding that either Betal Singh was not present at the time of
discussion to give another date before the Head Constable Rajendra Singh or he
had left towards the Bus not on the basis of evidence of PW. 1 but on the basis
of the statement recorded by police under Section 161 of the Code of Criminal
Procedure of PW. 5 and PW. 10. The dying declaration said to have been made by
deceased to PW. 1 have been discarded by the Trial Judge and also affirmed by
the High Court and in our view rightly. But the Trial Judge again committed an
error in appreciating the medical evidence and even while analyzing the
evidence of Prem Singh, PW. 1 in the context of narrow compass as to whether
appellant Betal Singh fired the gun which hit the deceased or it was a case of
accidental firing in the course of scuffle between the appellant and PW. 1.
The
Trial Court has looked into insignificant particulars and failed to notice the
basic prosecution case. The ultimate conclusion that the defence of the accused
appeals to be correct and true is not on the basis of any materials on record
but because of the finding that the police had caused suspicion in respect of
certain circumstances which resulted in exaggeration of the prosecution case.
On examining the grounds advanced by the learned Trial Judge to discard the it
relates to the prosecution case question whether Betal Singh fired the gun at
the deceased Head Constable we have no hesitation to come to the conclusion
that the reasons are wholly unsustainable and the ultimate order of acquittal
is vitiated.
The
High Court on the other hand, keeping in mind the parameters of the court for
interference with an order of acquittal has examined the grounds and reasons
advanced by the learned Trial Judge and on elaborate discussion has found how
those grounds are fallacious and thereupon after analyzing the evidence of PW.
1 has accepted the same and ultimately convicted the appellant Under Section
302 I.P.C.
The
High Court has broadly held that PW. 1 had no axe to grind against the accused
appellant and he narrated the main incident of shooting by Betal Singh. The
High Court has rightly held that non mentioning of the detailed particulars in
the F.I.R. cannot create any doubt and the basic prosecution case remains the
same in the trial as was mentioned in the F.I.R. On analysis of evidence of PW,
1 and the doctor PW. 8 the High Court also has come to the conclusion that the
medical evidence corroborated the evidence of PW. 1 so far as the manner in
which the incident occurred. The High Court also examined Ex.P-7 which
indicates the course of movement of bullet inside the dead body of deceased
Head Constable and rightly came to the conclusion that the said diagram
completely belies the defence theory of scuffle between the appellant Betal
Singh and witness PW. 1 and in the course of scuffle accidently the gun was
fired and on the other hand it proves the prosecution case that Betal Singh
fired at the deceased while the deceased was sitting on the cot. The High Court
rightly came to the conclusion that the evidence of PW. 1 cannot be impeached
with reference to the statement of PWs 5 and 10 recorded under 161 Cr.P.C. The
High Court also rightly observed that even if the F. I .R. was not immediately
sent to the court of the Magistrate, but it is of no consequence, since the
F.I.R. had been lodged within 30 minutes of the occurrence and the said F. I
.R. clearly described the basic prosecution case. The High Court has then
analyzed the evidence of PW. 1 and has held the same to be unimpeachable and established
the charge against appellant Betal Singh. We find no infirmity with the
judgment of the High Court. We have also ourselves scrutinized the evidence of
PW. not immediately sent to the Court and in our view, the same evidence can be
safely relied upon in establishing the charge against the appellant
notwithstanding some minor inconsistency in the evidence here and there. There
is not an iota of materials on record excepting the bold suggestion to PW. 1
which he denied in support of the defence theory that while there was a scuffle
between the appellant Betal Singh and Prem Singh, PW. 1, the loaded gun was
fired. In the premises as aforesaid and for the reasons advanced by us we do
not find any merit in this appeal and the same is accordingly dismissed. The
appellant who is on bail will now surrender to his bail bonds to serve out the
sentence.
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