Mahtab Singh & ANR.
Vs. State of U.P.  INSC 727 (13 April 2009)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 168 OF 2006 Mahtab
Singh & Anr. ..
State of U.P. ..
R.M. Lodha, J.
The judgment of
acquittal passed by the IVth Additional Sessions Judge, Farrukhabad on December
20, 2000 in Session Trial Nos. 48/91 and 49/91 came to be overturned by the
Division Bench of High Court of Judicature at Allahabad vide its judgment and
order dated May 27, 2005. High Court found both accused guilty of the offence
punishable under Section 302 read with 34 I.P.C. and sentenced them to life
Mahtab Singh was found guilty of an offence under Section 4/25 Arms Act, 1959
as well and sentenced to six months rigorous imprisonment on this count.
Aggrieved, the accused are in appeal by special leave.
put, the prosecution case is : Ganga Singh (deceased) and his brother Vinod (PW
1) owned a small Flour Mill at village Kampil. On September 28, 1990 at
9.00P.M., while returning from the betel shop of Rajveer after purchasing bidi,
a few steps away, at Tiraha (junction of three roads), Mahtab Singh (A-1) and
Jaipal (A-2) - father and son - met him. Ganga Singh demanded money due from
Mahtab Singh. Mahtab Singh, however, rebuked him. Ganga Singh asked Mahtab
Singh as to why he was rebuking when money was due and payable by him. Hearing
this, Mahtab Singh asked his son Jaipal to catch and kill Ganga Singh. Jaipal
caught hold of Ganga Singh;
Mahtab Singh gave a
knife blow to Ganga Singh due to which Ganga Singh fell down. Vinod (PW-1) and
Ratiram (PW-2) who were sitting under the thatched roof near Flour Mill and one
Asarfilal rushed towards the spot. On seeing them, Mahtab Singh and Jaipal ran
away. Ganga Singh was sent to Primary Health Centre at Kayamganj with
Asarfilal, Balbir, Shyam Singh and other family members. Vinod got the report
written from one Charan Singh and went to Kampil police station.
Based on that, First
Information Report was registered under Section 307 IPC. Dr. G.K. Singh (PW-5),
Medical Superintendent, Primary Health Centre, Kayamganj sent an intimation at
about 10.30 P.M. to the police station, Kampil about the death of Ganga Singh.
The case was, thus, converted to Section 302 I.P.C.
Rampati Ram (PW-6), Sub-inspector, Kampil police station started investigation
on September 29, 1990. He prepared the sketch map and also took one lantern in
his possession. The challan of dead body was prepared and photo of dead body
was also taken.
The autopsy of dead
body was conducted by Dr. Manohar Singhal, (PW-4). On September 29, 1990, at
about 4.00P.M., A-1 was arrested. On his disclosure statement, blood stained
knife, shirt and bandi are said to have been recovered from his house. Then,
another case under Section 4/25 of the Arms Act, 1959 was registered against
A-1. The investigation of the case under Section 4/25 of the Arms Act was done
by Sub- Inspector B.D. Chaudhary (PW-8). A-2 was also arrested on October 6,
completion of investigation, two chargesheets came to be filed. One was filed
against A-1 and A-2 under Section 302/34 IPC for the murder of Ganga Singh. The
other chargesheet was filed against A-1 under Section 4/25 of the Arms Act.
Both the Session Trials under Section 302 read with Section 34 IPC and under
Section 4/25 of the Arms Act were taken up together.
trial court was of the opinion that prosecution failed to prove the charges
against the accused persons beyond reasonable doubt. The trial court acquitted
the accused mainly for the following reasons:
(i) The testimony of
PW-1 and PW-2 suffers from significant contradictions. While PW-1 stated in his
evidence that Mahtab Singh stabbed Ganga Singh with a knife from back side, the
deposition of PW-2 was that Mahtab Singh inflicted knife injury to Ganga Singh
was from front side.
(ii) Both the eye
witnesses are interested witnesses. PW-1 is a real brother of deceased and PW-2
is a deceased's co-brother.
identification of the accused persons by PW-1 and PW-2 in the dark night was
highly improbable and doubtful. No evidence much less reliable evidence of
burning lantern and light from the electric bulb was produced. No evidence that
it was moonlit night.
(iv) Rajveer from
whose shop Ganga Singh purchased bidi has not been examined by prosecution;
even his statement under Section 161 Cr.P.C. was not recorded. The burning
lantern from his shop was not seized by the investigating officer.
(v) The lantern which
was seized from the shop of Balbir was not produced before the Court.
(vi) The presence of
PW-2 was highly unnatural. He is resident of Nagala Kulu. His statement that he
came to Ganga Singh's Flour Mill for grinding at night (9.00 P.M.) does not
inspire confidence as the Flour Mill is situated in different village. His
conduct of leaving the place of occurrence immediately after the incident makes
his presence at the time of incident highly doubtful.
accompanied Ganga Singh to the Primary Health Centre nor accompanied PW-1 to
the police station.
(vii) Asarfilal who
was present at the time of incident and who accompanied Ganga Singh to Primary
Health Centre has not been examined although his statement u/s 161 Cr.P.C. was
(viii) The recovery
of knife, shirt and bandi (all blood stained) from the house of A-1 at 4.30
immediately after his
arrest at 4.00 P.M. on 29.09.1990 is highly doubtful as police raided the house
of A-1 from 6.00 A.M. to 3.30 P.M. on September 29, 1990 number of times and
offending 5 article was not found. No memo of disclosure statement of A-1
High Court, in appeal, however, formed entirely different opinion. The High
Court principally recorded the following reasons for upsetting the judgment of
(i) The evidence of
PW-1 and PW-2 was clinching and could not have been rejected. The
contradictions in their evidence were insignificant.
(ii) The FIR was
lodged barely 45 minutes after the incident ; the distance of police station
being one furlong from place of incident and the presence of PW-2 was mentioned
in the FIR itself.
(iii) PW-1 and PW-2
were sitting under the thatched roof near the Flour Mill and there being no
obstruction between that place and the place of incident which was about 40
paces away, it was not improbable for PW-1 and PW-2 to watch the incident as
lantern was burning at the shop of Balbir (8 paces away). There was no
possibility of mistaken identity, as A-1 and A-2 were not unknown to PW-1 and
of Asarfilal has been explained by PW-1 that he had crossed over to the side of
the accused and did not want to support the prosecution case.
(v) The recovery of
blood stained knife and clothes from the house of A-1 was not liable to be
rejected as recovery was proved by public witness PW-7.
core question that must be answered is : whether the prosecution story is worth
credence and whether the prosecution has sufficiently proved its case against
the accused beyond reasonable doubt.
Manohar Singhal (PW-4) conducted autopsy of the dead body on September 29, 1990
at about 3.45 P.M. He found the following ante-mortem injury on the dead body
of Ganga Singh :
Stab wound 3 cm x 1.5
cm chest cavity deep over left side of neck, 7 cm below and medial to interior
angle of left scapula and 8 cm outer to the mid line.
Obliquely placed. Upper
angle sharp. Margins clean cut and inverted.
PW-4 has deposed that
Ganga Singh had died due to shock and haemorrhage as a result of ante-mortem
injury sustained by him.
the autopsy report and the testimony of PW-4, it can reasonably be held that
death of Ganga Singh was homicidal.
incident occurred on September 28, 1990 at 9.00 P.M. Ganga Singh (deceased) had
gone to betel shop of Rajveer to purchase bidi. While he was returning, only
few steps away, the incident is said to have occurred. As a matter of fact,
PW-1 has admitted in his deposition that Rajveer's shop was hardly 2-3 steps
away from the place of occurrence. But strangely, despite availability,
Rajveer's statement was neither recorded under Section 161 Cr.P.C. nor he was
tendered in examination before the Court. According to prosecution case, a
lantern was burning at Rajveer's shop and it was from the light of that lantern
that PW-1 and PW-2 could see the culprits. The Investigating Officer (PW-6),
even did not seize the lantern from Rajveer's shop. The omission on the part of
PW 6 in not recording the statement of Rajveer and not seizing the lantern from
his shop is not innocuous; rather the very genesis of the crime has been
rendered doubtful and full of suspicion. The trial court considered this aspect
as one of the main reasons in not believing the prosecution case and acquitted
the accused. However, the High Court ignored and overlooked this aspect
altogether. In our view, non-examination of Rajveer in the circumstances is
destructive of the substratum of the prosecution story.
of the main reasons given by the High Court in upsetting the judgment of
acquittal is that FIR was lodged barely 45 minutes after the incident; the
distance of police station being hardly one furlong from the place of
occurrence. High Court, however, failed to consider a very material aspect that
despite the fact that police station was situated close and visible from the
place of incident, yet PW-1 did not go immediately to police station to report
but he first went to Charan Singh to have a written report prepared and then
went to the police station with written report. The first version of the
incident could have been reported at the police station within five minutes of
its occurrence. The fact that PW-1 took 45 minutes in reporting the incident at
the police station rather creates doubt about the truthfulness of the
prosecution case and does not rule out false implication of the accused against
whom PW-1 had grudge due to some civil dispute between them.
evidence of PW-1 about sufficient light from the electric pole and from the
lantern at Balbir's shop is again highly doubtful. The Investigating Officer
(PW-6) in his testimony stated that neither in FIR nor in his statement PW-1
told him about the electric pole at the place of incident. PW-6 admitted that
electric pole has not been shown in sketch prepared by him. About the light
from lantern at the shop of Balbir, although the said lantern is said to have
been seized by PW-6 but surprisingly that lantern was not produced during the
trial before the court. PW-6 also admitted that PW-1 did not tell him that it
was a moonlit night. In these circumstances, the evidence of PW-1 that he
witnessed the incident further becomes doubtful as admittedly he was sitting
under thatched roof about 40-45 paces away from the place of incident. It is
true that the evidence of PW-1 being brother of the deceased could not have
been justifiably thrown out as an interested witness but in the backdrop of
totality of his evidence, in our considered view, his testimony could not have
been safely relied upon and the trial court cannot be said to have committed
any error in this regard. The vital omissions in his testimony also shake the
trustworthiness of this witness.
evidence of PW-2 is no better. His very presence at the time of incident is not
only doubtful but also highly unnatural. He is not the resident of Village
Kampil where the incident occurred; he resides at Village Kullu Nagla. It does
not stand to reason that in the night at about 9.00 P.M. he would bring his
foodgrain for grinding. He was unable to tell how much foodgrain he had brought
for grinding. The most surprising aspect is that although he claims to have
been present at the time of incident, he neither went along with Ganga Singh
when he was taken to Kayam Ganj Primary Health Centre after the incident nor he
accompanied PW-1 to police station for lodging the report. He left the place of
occurrence within 10 minutes of the incident for his village. The version of
PW-1 and PW-2, insofar as infliction of knife 1 1 injury by Mahtab Singh to
deceased Ganga Singh is concerned, is also not uniform. PW-1 in his deposition
stated that Mahtab Singh stabbed Ganga Singh from the back side while the
version of PW-2 is that Mahtab Singh inflicted knife injury to Ganga Singh from
Pertinently, PW-2 is
also co-brother of Ganga Singh.
in all, the testimony of PW-1 and PW-2 does not conform with collateral
circumstances as well as probabilities. The circumstances brought on record
show that reliance on their testimony is not safe. Their testimony is shrouded
with grave suspicion and serious doubts.
trial court meticulously examined the entire evidence available on record and
then reached the conclusion that the prosecution has failed to prove the
charges against the accused beyond reasonable doubt.
Kalyan Singh v. State of M.P1., one of us (S.B. Sinha, J.) observed :
1 (2006) 13 SCC 303 1
2 "The High Court while dealing with the matter, in our considered
opinion, failed to apply the proper tests in deciding a case where a judgment
of acquittal has been recorded. The views of the learned trial Judge cannot be
said to be wholly unsustainable. It is now well known that if two views are
possible, the appellate court shall not ordinarily interfere with the judgment
of acquittal. We do not, however, mean to lay down the law that the High Court,
in a case where a judgment of acquittal is in question, would not go into the
evidence brought on record by the prosecution or by the State but we would like
to point out that even if the High Court reversed the judgment of acquittal
recorded by the trial court, it is incumbent on the High Court to arrive at the
conclusion that no two views are possible."
aforesaid legal position has been reiterated in K. Prakashan v. P.K.
Surenderan2 wherein it was said:
"It is now trite
that if two views are possible, the appellate court shall not reverse a
judgment of acquittal only because another view is possible to be taken. The
appellate court's jurisdiction to interfere is limited. (See M.S. Narayana
Menon and Mahadeo Laxman Sarane v. State of Maharashtra.) The High Court
furthermore has not met the reasons of the learned trial Judge. It proceeded on
the premise that the appellant had not been able to discharge his burden of
proof in terms of Section 139 of the Act without posing unto itself a further
question as to how the said burden of proof can be discharged. It furthermore
did not take into consideration the legal principle that the standard of proof
upon a prosecution and upon an accused is different."
2 (2008) 1 SCC 258 1
Ghurey Lal v. State of Uttar Pradesh,3 this Court while dealing with the scope
of exercise of power by appellate Court against judgment of acquittal under
Sections 378 and 386 Cr.P.C., considered a long line of cases viz., Sheo Swarup
v. King Emperor4; Surajpal Singh v. State5; Tulsiram Kanu v. State6; Madan
Mohan Singh v. State of U.P.7; Atley v. State of U.P.8; Aher Raja Khima v.
State of Saurashtra9; M.G. Agarwal v. State of Maharashtra10; Noor Khan v.
State of Rajasthan11; Khedu Mohton v. State of Bihar12; Shivaji Sahabrao Bobade
v. State of Maharashtra13; Lekha Yadav v. State of Bihar14; Bishan Singh v.
State of Punjab15; Umedbhai Jadavbhai v. State of Gujarat16;
Tota Singh v. State
of Punjab17; Ram Kumar v. State of 3 (2008) 10 SCC 450 4 AIR 1934 PC 227 5 AIR
1952 SC 52 6 AIR 1954 SC 1 7 AIR 1954 SC 637 8 AIR 1955 SC 807 9 AIR 1956 SC
217 10 AIR 1963 SC 200 11 AIR 1964 SC 286 12 (1970) 2 SCC 450 13 (1973) 2 SCC 793
14 (1973) 2 SCC 424 15 (1974) 3 SCC 288 16 (1978) 1 SCC 228 17 (1987) 2 SCC 529
1 4 Haryana18; Bhagwan Singh v. State of M.P.19; C. Antony v. K.G. Raghavan
Nair20; State of Karnataka v. K. Gopalakarishna21; State of Goa v. Sanjay
Thakran22; and culled out the following principles:
appellate court may review the evidence in appeals against acquittal under
Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of
reviewing evidence is wide and the appellate court can reappreciate the entire
evidence on record. It can review the trial court's conclusion with respect to
both facts and law.
2. The accused is
presumed innocent until proven guilty. The accused possessed this presumption
when he was before the trial court. The trial court's acquittal bolsters the
presumption that he is innocent.
3. Due or proper
weight and consideration must be given to the trial court's decision. This is
especially true when a witness' credibility is at issue. It is not enough for
the High Court to take a different view of the evidence. There must also be
substantial and compelling reasons for holding that the trial court was
agree. The aforesaid principles must be kept in mind by the appellate court
before it ventures to overturn trial court's judgment of acquittal.
Unfortunately in the instant case, the High Court did not keep the well settled
principles in mind and reversed the judgment of 18 (1995) Supp.(1) SCC 248 19
(2002) 4 SCC 85 20 (2003) 1 SCC 1 21 (2005) 9 SCC 291 22 (2007) 3 SCC 755 1 5
acquittal recorded by the trial court when the view taken by the trial court
was possible as well as plausible. The High Court, thus, seriously erred in
disturbing the judgment of acquittal and recording the finding of guilt against
accordingly, allow the appeal and set aside the judgment dated May 27, 2005
impugned in the present appeal. Mahtab Singh is already on bail, his bail bonds
are cancelled. Jaipal is directed to be released forthwith unless required in
any other case.
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