State of Haryana Vs.
Shibu @ Shiv Narain & Ors. [2008] INSC 1227 (25 July 2008)
Judgment
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NOS. 235-236 OF 2001
State of Haryana ...Appellant Shibu @ Shiv Narain and Ors. ...Respondents
Dr. ARIJIT PASAYAT,
J.
1.
These
appeals are directed against the common judgment of a Division Bench of the
Punjab & Haryana High Court disposing of appeals i.e. Criminal Appeal No.
527DB of 1995 and 547DB of 1995. The main judgment is in Criminal Appeal No.
527 DB of 1995. In these appeals two appellants were convicted by learned
Sessions Judge, Rohtak in Sessions Case No. 13 of 1995.
2.
Background
facts in a nutshell are as follows:
On 18th January 1995,
at about 8 or 8.30 a.m., Vijay since deceased, was going from his house towards
the bazar for shopping and had gone a short distance, when the three accused
Shibu alias Shiv Narain, Surender Singh armed with a pharsa and Bhagat Singh
armed with a sword accosted him and Shibu told him that they were going to
teach him a lesson for the slaps that had been given to him on 16th January,
1995. Shibu then caught hold of Vijay in his grip, whereas Bhagat Singh
inflicted a sword blow on his left thigh, while Surender accused aimed a blow
on his leg which did not hit its target. On receipt of the injuries, Vijay
cried "Mar diya Mar diya", which attracted Attar Singh (PW5) and
Rajinder (PW6), the brother and first cousin of deceased respectively, and one
Inder to the place of incident. All the accused then ran away from the spot.
Vijay was, thereafter, taken to his house and then to the Civil Hospital,
Bahadurgarh in a tractor by Attar Singh and some others, but he succumbed to
his injuries on the way. The dead body nevertheless reached the hospital, on
which the doctor sent information vide Ex. PE to the police, which brought ASI
Ranbir Singh to the hospital. He recorded the statement of Attar Singh Ex.PK at
11.50 a.m. and on its basis, a formal FIR Ex. PK/2 was registered at Police
Station, Bahadurgarh at 12.05 p.m.; the special report being delivered locally
at 12.35 p.m. The SHO/Inspector Sumer Singh, also visited the place of
occurrence and made the necessary investigation at the spot. The accused were
arrested on 18th January, 1995 and on their interrogation and disclosure
statements, a pharsa and a sword were recovered. On completion of the
investigation, accused Bhagat Singh was charged for an offence punishable under
Section 302 of the Indian Penal Code, 1860 (in short `IPC') while the others
were charged for the same offence with the aid of Section 34 thereof and as
they claimed to be innocent, were brought to trial.
As noted above, PWs 5
& 6 Attar Singh and Rajinder respectively were stated to be eye witnesses
to the occurrence. The trial court concluded that the enmity between the
parties stood proved as they had been on opposite sides in the panchayat
elections and on account of this factor, accused Shibu had abused Attar Singh
sometime earlier and had been given a beating by him. The court also found that
the prosecution version as stated by Attar Singh (PW-5) and Rajinder (PW-6) was
natural. Accordingly, the three accused persons were found guilty, convicted
and sentenced as afore-stated.
Stand of the
appellant before the High Court in the appeals was that the murder was a blind
one as the prosecution witnesses have been procured after the incident had come
to light.
3.
Learned
counsel for the State on the other hand submitted that not only it was their
motive for the killing but the evidence was cogent and credible. The High Court
found substance in the plea of the three accused appellants (respondents
herein) and directed their acquittal.
4.
Learned
counsel for the State submitted that the analysis as done by the High Court is
without any foundation and suffers from serious infirmity.
5.
Learned
counsel for the complainant also supported the stand of the State.
6.
Learned
counsel for the accused on the other hand submitted that the High Court has
highlighted the discrepancies in evidence and therefore the appeals deserve to
be dismissed.
7.
The
High Court after analyzing the evidence recorded as follows:
"We are of the
opinion that the presence of Attar Singh PW-5 and Rajinder FW-6 at the spot is
difficult to accept. In D.D.R. No.15 which pertains to the present incident,
the names of Rajinder & Inder have not been mentioned and the fact as to
whether Attar Singh was an eye witness, has also not been clearly spelt out.
Moreover, it appears to us that the description of the attack given by the two witnesses
also belies their presence for two reasons; firstly, that in the F.I.R, it has
been clearly stated that two injuries had been caused to the deceased i.e. one
by Bhagat Singh with a sword and the other by Surender Singh with pharsa. The
post mortem report however, speaks of only one injury by Bhagat Singh. It was
to cover this situation that both Attar Singh PW-5 and Rajinder PW-6, in the
course of their statements given in Court, for the first time stated that
though Surender Singh had aimed a pharsa blow on the left thigh, yet no injury
had been caused to the deceased as, he had, at the crucial time, been able to
move-his leg out of harms way. There is yet another circumstance which belies
the prosecution case and also shows that the investigation has not been fair.
In column, 10 of the inquest report Ex.PL/2 (original Hindi version), it is
apparent that a serious interpolation has been made to fit in with the new
story. We find that the presence of the injury on the ankle allegedly caused by
Surender Singh was first noted and then by interpolating the word
"nahi", the effort has been made to show that there was no second
injury on the deceased. This interpolation is further evident from the fact
that an injury which was present would alone find mention in the document and
not a negative fact that there was no injury. The counsel therefore, appears to
be right in placing reliance on Sat Darshan Kalia v State of Punjab 1996 (1)
Recent Criminal Reports, 367, in which this Court his held that where the investigation
had not been fair and an interpolation had been made in some important
document, a serious doubt could be created with regard to the integrity of the
investigation and the veracity of the prosecution's story.
There is yet another
significant circumstance to show that the two eye witnesses had not seen the
occurrence. PW 5 Attar Singh had clearly stated in the evidence that a sword
blow had been inflicted in the thigh of Vijay from the height of the arm of the
assailant Bhagat Singh. Likewise, Rajinder - PW 6 in his statement had stated
that Bhagat Singh had inflicted a blow in a thrusting manner. Dr. Manju Arora
PW-4, who had conducted the post mortem examination was cross examined in
extenso by the defence counsel as to the inferences that could be drawn on the
medical evidence and she clearly stated that as the direction of the injury was
from below to upward and as the attack had been made from "straight front
and stabbing, then this injury was not possible while standing. If one tries to
cause this injury from sword from upward to downward, even then, this injury
cannot be caused" and further "in the event of the assailant and the
injured standing, assailant has to bend down and take the weapon in such a low
position, at least from the side of the entry wound, otherwise, in standing
position, this injury cannot be caused". It bears repetition that Vijay
had been in a standing position when he had been caused the injury by Bhagat
Singh. The doctor has clearly opined that the injury in question could not have
been caused as the victim and the assailant were both standing in a normal
posture. It can thus, be deduced from the evidence of the doctor that in this
situation, the injury could have been found either parallel to the ground or
moving from upward to downward.
The presence of the
eye witnesses is further belied by another obvious circumstance. As per the
prosecution story, Shibu accused had been given a few slaps by Attar Singh PW-5
after he had abused him on the evening of 16th January,1995. Vijay had not even
been present at the time when the slaps had been administered. It is,
therefore, obvious that if Shibu bore any malice, it would have been towards
Attar Singh and had he been present at the spot standing close by 7 witnessing
the attack on Vijay, he would not have been allowed to go scot free and
unscathed."
8.
The
High Court has elaborately highlighted the aforesaid aspects to conclude that
the prosecution version is highly improbable and lacks credence.
9.
There
is no embargo on the appellate court reviewing the evidence upon which an order
of acquittal is based. As a matter of fact, in an appeal against acquittal, the
High Court as the court of first appeal is obligated to go into greater detail
of the evidence to see whether any miscarriage has resulted from the order of
acquittal, though it has to act with great cir- cumspection and utmost care
before ordering the reversal of an acquittal. Generally, the order of acquittal
shall not be in- terfered with because the presumption of innocence of the ac-
cused is further strengthened by acquittal. The golden thread which runs
through the web of administration of justice in criminal cases is that if two
views are possible on the evidence adduced in the case, one pointing to the
guilt of the accused and the other to his innocence, the view which is favourable
tothe accused should be adopted. The paramount consideration of the court is to
ensure that miscarriage of justice is prevent- ed. A miscarriage of justice
which may arise from acquittal of the guilty is no less than from the
conviction of an innocent. In a case where admissible evidence is ignored, a
duty is cast upon the appellate court to reappreciate the evidence where the
accused has been acquitted, for the purpose of ascertain- ing as to whether any
of the accused really committed any of- fence or not. (See Bhagwan Singh v.
State of M.P.( 2002(4 )SCC 85) The principle to be followed by the appellate
court consid- ering the appeal against the judgment of acquittal is to inter-
fere only when there are compelling and substantial reasons for doing so. If
the impugned judgment is clearly unreasonable and relevant and convincing
materials have been unjustifiably eliminated in the process, it is a compelling
reason for inter- ference. This position has been reiterated in Joseph v. State
of Kerala (2003(1) SCC 465), Devatha Venkataswamy v. Public Prosecutor, High
Court of A.P. (2003(10) SCC 700), State of Pun- jab v. Karnail Singh (2003 (11)
SCC 271), State of U.P. v. Babu (2003 (11) SCC 280) and Suchand Pal v. Phani
Pal (2003 (11) SCC 527).
10.
When
the background facts as noticed by the High Court are tested on the touchstone
of the principles set out above, it is clear that the appeals are without
merit, deserve dismissal, which we direct.
..................................J.
(Dr. ARIJIT PASAYAT)
..................................J.
(P. SATHASIVAM)
...
................................J.
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