It is well settled in law that non-
examination of the material witness is not a
mathematical formula for discarding the weight of
the testimony available on record howsoever
natural, trustworthy and convincing it may be.
The charge of withholding a material witness from
the court levelled against the prosecution should
be examined in the background of the facts and
circumstances of each case so as to find whether
the witnesses are available for being examined in
the
court
and
were
yet
withheld
by
the
prosecution.
(See:
State
of
H.P
.
v.
Gian
Chand19)
23.
In this context, we may also note with profit a
passage
from
Takhaji
Hiraji
v.
Thakore
Kubersing Chamansing20: -
“19... It is true that if a material witness,
who would unfold the genesis of the
incident or an essential part of the
prosecution case, not convincingly
brought to fore otherwise, or where
there is a gap of infirmity in the
prosecution case which could have been
supplied or made good by examining a
witness who though available is not
examined, the prosecution case can be
termed as suffering from a deficiency
and withholding of such a material
witness would oblige the court to draw
an adverse inference against the
prosecution by holding that if the
witness would have been examined it
would
not
have
supported
the
prosecution case. On the other hand if
already overwhelming evidence is
available and examination of other
witnesses would only be a repetition or
duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such
a case the court ought to scrutinize the
worth of the evidence adduced. The
court of facts must ask itself – whether
in the facts and circumstances of the
case, it was necessary to examine such
other witness, and if so, whether such
witness was available to be examined
and yet was being withheld from the
court? If the answer be positive then
only a question of drawing an adverse
inference may arise. If the witnesses
already examined are reliable and the
testimony coming from their mouth is
unimpeachable the court can safely act
upon it, uninfluenced by the factum of
non-examination of other witnesses.”
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1148 OF 2007
Joginder Singh
... Appellant
Versus
State of Haryana
...Respondent
Dated;24-10 20131
Citation;2013 (4)crimes 454 SC
Dipak Misra, J.
The present appeal under Section 379 of the Code of
Criminal Procedure, 1973 (for short “CrPC”) is directed
against the judgment of conviction and order of sentence
dated 9.5.2007 passed by the High Court of Punjab and
Haryana at Chandigarh in Criminal Appeal No. 702-DBA of
1997 whereby the High Court has partly reversed the
judgment of acquittal dated 9.6.1997 recorded by the
learned Additional Sessions Judge, Kaithal in Sessions Trial
No. 15 of 1993 instituted for offences punishable under
Sections 302 and 307 read with Section 34 of the Indian
Penal Code (IPC) and under Sections 25 and 27 of the Arms
Act against the appellant and two others and convicted the
appellant alone under Section 302 IPC and sentenced him to
undergo rigorous imprisonment for life.
2. Filtering
the
unnecessary
details
the
broad
essential facts, as put forth by the prosecution, are
that there was a dispute about the vacant plot of
shamlat land where the complainant and his
family members used to store their respective
kurris (heap of rubbish). The said land was given
to Guru Ravidass Mandir by the Gram Panchayat
vide
resolution
dated
22.03.1989.
Accused
Joginder Singh and Mohinder Singh, both real
brothers kept on asserting their ownership over
the said land and were not prepared to surrender
it. Both the accused were booked twice under
sections 107 and 151 of CrPC relating to the said
land. On 15.11.1991 about 4:00 pm., Joginder
Singh
parked
his
combine
harvester
on
the
disputed land which was objected to by deceased
Kamla wife of Chander, Murti, wife of Dharambir,
Bala, daughter of Sita Ram and other ladies
present at that time. But Joginder Singh did not
pay any heed to the objection raised by the
women, and abused them. In the meantime
Chander, Dharambir, PW-3, and Mithan Singh, PW-
2, came outside and asked accused Joginder Singh
not to park his combine harvester on the disputed
land. At that juncture, Mohinder Singh and Anokh
Singh, nephew of the accused, arrived at the
scene and all of them started abusing the
complainant
and
other
women.
The
initial
altercation took a violent turn and both the parties
grappled with each other.
During the fight
accused persons ran away to their houses and
returned with weapons. Joginder Singh came
armed with a DBBL .12 bore gun while the other
two accused did not bring any weapon.
As the
prosecution story proceeds, both of them raised a
‘lalkara’ in filthy language to kill the members of
other side. Accused Joginder Singh fired two shots
from his gun pellets of which hit in the chest of
Kamla and Bala and also in the chest and mouth of
Mithan Singh, PW-2.
Accused Mohinder Singh
snatched the gun from Joginder Singh and fired
two shots that hit the back of Bimla and the
stomach region and thigh of Murti. The injured
persons fell down on the ground on receipt of
gunshot injuries.
number of
After
villagers
hearing
came
to
the
the
gunshot
place
of
occurrence whereafter the accused persons took
to their heels. Kamla succumbed to her injuries on
the spot and her husband was asked to stay back
to guard the dead body of his wife. Pritam Singh,
PW-1, Karambir, Mamu Ram and others took the
other injured persons in a vehicle to Civil Hospital,
Kaithal.
Pritam Singh went to Police Station to
lodge the FIR and his statement was recorded by
the Inspector of Police, Prem Chand, PW-16, and
an FIR was registered at 8:30 pm.
3. After the criminal law was set in motion, the
investigating agency commenced the investigation
and in course of investigation, Prem Chand, PW-
16, prepared the inquest report, got the site plan
done, collected the blood-stained earth and the
pellets lying at the spot, sent the dead body for
the post mortem and forwarded the articles to the
Forensic
Science
Laboratory
for
examination,
arrested the accused persons, recovered DBBL .12
bore
gun
statements
and
of
live
cartridges,
other
recorded
witnesses
and
the
after
completing all other formalities laid the charge
sheet for the offences punishable under Sections
302 and 307 read with Section 34 IPC and Sections
25 and 27 of the Arms Act before the competent
court which, in turn, committed the same to the
Court of Session.
The accused persons pleaded
not guilty to the charges and claimed to be tried.
4. To
substantiate
the
charges
the
prosecution
examined as many as 16 witnesses. The main
witnesses
are
Pritam
Singh,
PW-1,
the
complainant, Mithan Singh, PW-2, Dharambir, PW-
3, the eye witnesses to the occurrence, Dr. B.B.
Kakkar, PW-4, who examined the injured,
Dr. A.K.
Leel, PW-8, who had conducted the post-mortem
and
also
had
examined
the
other
injured
witnesses; Zile Singh, PW-11, Sarpanch of the
Gram Panchayat and Inspector Prem Chand, PW-
16, the investigating officer of the case.
The
prosecution had exhibited number of documents
which
included
the
report
of
the
Chemical
Examiner, Ex. P.TT and report of Serology, Ex.
P.TT/1 and report of Ballistic Expert, Ex. P.UU.
5. The accused in their statements recorded under
Section
313
CrPC
denied
the
incriminating
evidence appearing against them. They admitted
that Joginder Singh and Mohinder Singh are real
brothers and Anokh Singh is their sister’s son.
Accused Joginder Singh took the plea that he had
been using the land where the combine harvester
was
installed
since
long
and
the
Harijan
community wanted to forcibly occupy the said
land. On the date of occurrence, people belonging
to Harijan Community, both men and women,
armed with fire-arms and other weapons came to
his house and fired and he was compelled to hide
himself in his house to save his life.
Persons of
Harijan community started firing indiscriminately
at his house where he was hiding. In that process
the injured and deceased received injuries. He did
not use his gun at all nor was his gun taken by
Mohinder Singh at any time.
Accused Mohinder
Singh and Anokh Singh took the plea that they had
no concern with the land or with the combine
harvester and they were not present at the spot.
6. Learned Addl. Sessions Judge, Kaithal, considering
the evidence brought on record, acquitted all the
accused of the charges under sections 302 and
307 read with Section 34 IPC and Sections 25 and
27 of the Arms Act on the ground that the
prosecution had failed to prove its case against
the accused beyond all reasonable doubt.
To
come to such a conclusion the learned trial Judge,
after due perusal of the evidence and material
brought on record, took note of various aspects,
namely, a litigation was pending as regards the
possession between the Guru Ravidass Mandir
Sabha
and
the
accused
persons
and
the
complainant had nothing to do with the land; that
there had been dispute between Joginder Singh on
one hand and Harijan community on the other with
regard to the plot which is situate in front of the
house of Joginder where the alleged occurrence
had taken place; that after coming from Pakistan
the father of the accused Joginder Singh had
settled in the village at the very site; that a Civil
Suit No. 191 of 1990
titled as “Guru Ravidass
Sabha Sangan vs. Joginder Singh and Mohinder
Singh” was filed in the Court of Civil Judge, Senior
Division, Kaithal and an interim order of stay was
passed in favour of the Sabha which was vacated
by order dated 15.3.1991 directing the parties to
maintain status quo till the decision of the suit
and,
eventually,
the
suit
was
dismissed
on
24.10.1994 for want of prosecution; that though
some resolutions were passed by the Gram
Panchayat in favour of the Guru Ravidass Sabha,
yet the land was in possession of Joginder Singh
and there was no record that Panchayat had
delivered
possession
to
anyone;
that
the
complainant, Pritam Singh, PW-1, was concealing
the truth from the court inasmuch as he denied
the obvious fact reflectible at a mere glance of the
photographs, Exts. DA to DC, to the effect that
there were pellets marks on the wall of the house
of the accused; that Mithan Lal, PW-2, who had
stated that he had received injury on his left eye
and had lost his eye sight
though was able to
identify other things yet expressed his inability to
identify the photographs Exts. DA to DC that show
the house of the accused; that Zile Singh, PW-11,
was an interested witness as Joginder Singh had
got an enquiry conducted against him while Zile
Singh was the Sarpanch of the village and he had
deliberately
not
identified
the
house
of
the
accused in the photographs, Exts. DA to DC, on
the ground that his eye sight was weak.
These
findings were recorded to highlight that the
accused-appellant was in possession of the land in
dispute
and
the
members
of
the
Harijan
community came armed with weapons to forcibly
take possession.
7. The learned trial Judge thereafter addressed to the
injuries sustained by various injured persons and
found that the case that was put forth initially by
the prosecution and the medical report were
different and he did not think it prudent to believe
such evidence.
He also noticed that there were
irreconcilable discrepancies between the weapon
used and the injuries sustained. He also noticed
that Dr. Leel, PW-8, had sent a report, Ext. P2 by
which he had sent two pellets recovered from the
body of Murti in a sealed parcel to the SHO, Police
Station, Sadar, but the serology report Ext. P.TT/1
showed that there was no blood on the pellets and
further the said witness had deposed that he had
not put any identification mark on the pellets.
8. Thereafter, the learned trial Judge, relying on the
ballistic report, Ext. P.UU, opined that the .12 bore
fired cartridges cases C1 to C4 were fired from a
fire-arm but not from DBBB gun W/1, Ext 15, the
weapon that was seized from the custody of the
accused Joginder Singh. He also took note of the
fact that the ballistic report though referred to the
mutilated pellets that had hit the deceased, yet
did not give any opinion.
These findings were
recorded to form an opinion that the members of
Harijan community armed with weapons were
present at the spot and the injuries inflicted upon
the deceased occurred in a different way than the
one projected by the prosecution.
Being of this
view he found that the prosecution had failed to
establish
its
case
beyond
reasonable
doubt
against the main accused Joginder Singh and
resultantly against the other accused persons also
and, accordingly, acquitted all of them.
9. The
High
Court,
in
appeal,
enumerated
the
reasons of acquittal given by the learned trial
Judge and thereafter came to hold that rejection of
the version of the eye witnesses was not valid;
that factum of motive was of no significance as
there was direct evidence on record; that the
discrepancies which were taken note of by the
learned trial Judge were incorrect; that the learned
trial Judge had misdirected himself by relying on
the medical opinion when the account of the eye
witnesses was credible and trustworthy; that the
learned trial Judge had not kept himself alive to
the principle that while appreciating the evidence
that injuries when caused by fire-arms there can
be variety of wounds depending upon the nature
of fire-arm used, distance, direction, manner and
other factors; that the trial Judge had also
erroneously appreciated the nature of gunshot
injuries, for such appreciation is contrary to the
medical jurisprudence; that there was a serious
dispute with regard to possession and the trial
court
had
wrongly
presumed
the
factum
of
possession; that the reason given that when the
accused persons had left the place of occurrence it
is a normal conduct of a person to go back to his
house is contrary to the acceptable norms of
appreciation of evidence; that the pellet marks on
the
wall
shown
in
the
photographs
do
not
improbablise the version of the prosecution, more
so, when none of the accused persons were
injured; that the discrepancy noted in the injuries
sustained
by
Pritam
Singh,
PW-1,
was
inconsequential; that there was no justification to
reject the testimony of Zile Singh, PW-11, on the
ground that he was inimically disposed towards
the accused; that the nature of injuries sustained
by
Dharambir,
PW-3,
should
not
have
been
disbelieved on the ground that the nature of
weapon described was different; that the report of
ballistic expert showed that the cartridges were
fired from the same weapon but not from W-1,
would not belie the prosecution version; and that
the discrepancy of range of gun and distance of
the injured as found by the learned Judge was not
material.
After unsettling the said reasons the
High Court opined that the view expressed by the
learned trial Judge was not a plausible one and the
case of the prosecution stood fully established
against the appellant, as far as causing the death
of Kamla is concerned and, accordingly, convicted
him under Section 302 IPC and sentenced him to
suffer life imprisonment and also to pay a fine of
Rs.5000/-, in default of payment of fine, to further
undergo rigorous imprisonment for one year.
However, the High Court gave benefit of doubt to
Mohinder Singh and Anokh Singh.
10.
We have Heard Mr. Neeraj Jain, learned senior
counsel appearing for the appellant and Mr. Rajeev
Gaur ‘Naseem’, learned counsel appearing for the
State of Haryana.
11.
Mr. Neeraj Jain, learned counsel for the
appellant, has submitted that the High Court has
fallen into grave error by opining that the view
expressed by the learned trial Judge was perverse
and not a plausible one though the learned trial
Judge has scrutinized the evidence in a detailed
manner and the opinion expressed is a well
reasoned one. It is urged by him that though the
High Court has enumerated the reasons given by
the trial court and thereafter unsettled them, yet
the reasons ascribed by the High Court for taking a
different view is not sound inasmuch as there has
been
really
no
proper
consideration
of
the
evidence which is obligatory on the part of the
appellate court to do while dislodging the findings
recorded by the trial court.
It is urged that the
major discrepancies in the statement of three star
witnesses of the prosecution, namely, Pritam
Singh, PW-1, Mithan Singh, PW-2, and Dharambir,
PW-3, with regard to the genesis of occurrence has
been overlooked by the High Court. He has further
put forth that the photographs of the site plan
were taken by the investigating agency and
nothing had come on record that the accused
persons
had
caused
the
pellet
marks
and,
therefore, when the witnesses deliberately did not
identify the photographs despite being proven and
brought on record makes the version of the
defence that the complainant party was also
armed with weapons and attacked on the house of
the accused-person cannot be ignored.
The
learned counsel would emphatically argue that the
High Court has cryptically ignored the ballistic
report which clearly showed that the empty
cartridges recovered from the spot were found not
to have been fired from the gun of the accused-
appellant which fortifies the defence version that
the accused never fired. That apart, submitted Mr.
Jain,
that
the
ballistic
report
has
not
been
discussed by the High Court, for the said report
does not connect the mutilated pellets found from
the body of the deceased with the weapon seized
from the appellant.
He also canvassed that an
important aspect has not been taken note of by
the High Court, as is evincible from the evidence
of Inspector Prem Chand, PW-16, the Investigating
Officer, that he was pressurized to proceed against
the appellant and his relations and it is further
obvious as the prosecution has not examined
Chander, husband of the deceased, and three
other women, namely, Bala, Murti and Bimla who
were alleged to have sustained injuries in the
occurrence.
To bolster his contentions, he has
commended us to the decisions rendered in Sheo
Swarup & others v. King Emperor1,Chandu v.
State of Maharashtra2, Murugesan S/o Muthu
and others v. State through Inspector of
Police3, Rathinam @Rathinam v. State of
Tamilnadu and another4, Ram Narain Singh v.
State of Punjab5, Brijpal Singh v. State of
AIR 1934 PC 227
2
(2002) 9 SCC 408
3
2012 (10) SCALE 378
4
(2011) 11 SCC 140
5
Madhya Pradesh6 and Mahendra Pratap Singh
v. State of Uttar Pradesh7.
12.
Mr. Rajeev Gaur ‘Naseem’, learned counsel
appearing for the State, supporting the judgment
of the High Court, submitted that though there is a
discrepancy
in
the
ballistic
report,
yet
the
substantive evidence of the three eye witnesses,
including one injured eye witness, cannot be
rejected. He has relied on the authority in Ram
Bali v. State of Uttar Pradesh8. It is his further
submission that the High Court has correctly
opined that the judgment of acquittal rendered by
(1975) 4 SCC 497
6
(2003) 11 SCC 219
7
(2009) 11 SCC 334
8
AIR 2004 SC 2329
Page 19
20
the learned trial Judge was perverse and deserved
to be interfered with.
13.
Before we proceed to consider the rivalised
contentions raised at the bar and independently
scrutinize the
record, is fruitful to
it
relevant
evidence
brought
recapitulate the
on
law
enunciated by this Court pertaining to an appeal
against acquittal. In Sheo Swarup (supra), it has
been stated that the High Court can exercise the
power or jurisdiction to reverse an order of
acquittal in cases where it finds that the lower
court has “obstinately blundered” or has “through
incompetence, stupidity or perversity” reached
such “distorted conclusions as to produce a
positive miscarriage of justice” or has in some
other way so conducted or misconducted himself
as to produce a glaring miscarriage of justice or
has been tricked by the defence so as to produce a
similar
result.
Lord
Russel,
authoring
the
judgment for the Privy Council, opined thus: -
“Sections 417, 418 and 423 of the Code
give to the High Court full power to review
at large the evidence upon which the order
of acquittal was founded, and to reach the
conclusion that upon that evidence the
order of acquittal should be reversed. No
limitation should be placed upon that
power, unless it be found expressly stated
in the Code. But in exercising the power
conferred by the Code and before reaching
its conclusions upon fact, the High Court
should and will always give proper weight
and consideration to such matters as (1)
the views of the trial judge as to the
credibility of the witnesses; (2) the
presumption of innocence in favour of the
accused, a presumption certainly not
weakened by the fact that he has been
acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and
(4) the slowness of an appellate court in
disturbing a finding of fact arrived at by a
judge who had the advantage of seeing
the witnesses. To state this, however, is
only to say that the High Court in its
conduct of the appeal should and will act
in accordance with rules and principles
well known and recognized in the
administration of justice.”
14.
The said principle has been followed in
subsequent pronouncements in Balbir Singh v.
State of Punjab9, Khedu Mohton and others v.
9
AIR 1957 SC 216
State of Bihar10, Ram Narain Singh (supra),
Ganesh Bhavan Patel and another v. State of
Maharashtra11,
Awadhesh
and
another
v.
State of Madhya Pradesh12, Ram Kumar v.
State
of
Haryana13,
Bhagwan
Singh
and
others v. State of M.P 14, State of Goa v.
.
Sanjay Thakran and another15, Puran Singh v.
State
of
Uttaranchal16,
Mahendra
Pratap
10
(1970) 2 SCC 450
11
(1978) 4 SCC 371
12
(1988) 2 SCC 557
13
1995 Supp (1) SCC 248
14
(2002) 4 SCC 85
15
(2007) 3 SCC 755
16
(2008) 3 SCC 795
Singh (supra), Murugesan C/o Muthu (supra)
and Shivasharanappa and others v. State of
Karnataka17.
15.
It is also worth noticing that in Murugesan’s
case the Court referred to the decision in State of
Rajasthan
Department
through
v.
Abdul
Secretary, Home
Mannan18 wherein
distinction between the statutory appeal and the
legislative intent was dealt with. The subsequent
Division Bench reproduced a passage from Abdul
Mannan’s case which is extracted below: -
“12. As is evident from the above
recorded findings, the judgment of
conviction
was
converted
to
a
judgment of acquittal by the High
Court. Thus, the first and foremost
question that we need to consider is, in
what circumstances this Court should
17
(2013) 5 SCC 705
18
(2011) 8 SCC 65
interfere with the judgment of acquittal.
Against an order of acquittal, an appeal
by the State is maintainable to this
Court only with the leave of the Court.
On the contrary, if the judgment of
acquittal passed by the trial court is set
aside by the High Court, and the
accused is sentenced to death, or life
imprisonment or imprisonment for
more than 10 years, then the right of
appeal of the accused is treated as an
absolute right subject to the provisions
of Articles 134(1)(a) and 134(1)(b) of
the Constitution of India and Section
379 of the Code of Criminal Procedure,
1973. In light of this, it is obvious that
an
appeal
against
acquittal
is
considered
on
slightly
different
parameters compared to an ordinary
appeal preferred to this Court.”
16.
In the case at hand, it is noticeable that the
High Court has compartmentalized the reasons
ascribed by the learned trial Judge and thereafter
dislodged the same one by one. The approach of
the High Court in this regard cannot be flawed, but
a pregnant one, it is required to be examined
whether the High Court while dislodging the
reasons
appositely
and
substituting
reappreciated
the
the
findings has
oral and
documentary evidence brought on record to come
to the conclusion that the view taken by the
learned trial Judge is neither a plausible nor a
reasonable one. The learned trial Judge, analyzing
the evidence on record, had recorded a finding
that
neither
members
nor
the
complainant
the
members
nor
of
his
the
family
Harijan
community had any right on the land inasmuch as
the controversy in the civil suit was between Guru
Ravidass Mandir Sabha and the accused persons.
The trial court had observed that no document
was brought on record to show that possession of
the disputed land was handed over to the
complainant or his family members in pursuance
of the alleged resolution of the Gram Panchayat.
The learned trial Judge had also observed that the
plea of the accused persons that they had settled
there since the time of their predecessors-in-
interest who had migrated from Pakistan was
acceptable. Thus, the learned trial Judge returned
a finding in favour of the accused persons.
This
finding, needless to say, has been arrived only to
nullify the allegation of the prosecution that the
accused
persons
forcibly
put
their
combine
harvester on the disputed land. The High Court,
as is perceptible, has observed that there is a
serious dispute with regard to possession.
The
High Court has failed to appreciate that on earlier
occasion there was an order of injunction which
was vacated and the suit stood dismissed. It may
be noted that even if there was a serious dispute
relating to possession, the learned trial Judge on
the analysis of the material on record had not
accepted the prosecution version that the accused
persons forcibly entered upon the land
and
installed the combine harvester. In fact, as the
evidence would reveal, the combine harvester was
installed much prior to the date of occurrence.
The view taken by the learned trial Judge in this
regard for the aforesaid limited purpose is a
plausible one.
The said finding by itself is of no
consequence but it has been recorded to support
and sustain the finding that the accused-appellant
and his relations did not by force enter upon the
disputed land and put the combine harvester. The
learned trial Judge, on the aforesaid base, had held
that there was no intention on the part of the
accused persons and the High Court has opined
that the
question
of motive or
intention
is
inconsequential when there is direct evidence on
record. It is settled in law that when there is direct
evidence, the proof of intention is not necessary.
However, the analysis of the learned trial Judge
would go a long way to show that he had
meticulously scrutinized the evidence relating to
factum of possession to highlight that the accused
persons had no intention to forcibly enter upon the
land and assert their right. True it is, it has come
on record that both the parties were fighting over
possession, the complainant and others, on the
ground that it was given to them by Guru Ravidass
Mandir Sabha to construct a temple thereon and
the
accused
persons
were
resisting
the
construction of temple. The said controversy was
the subject-matter of the civil lis. As is evincible
from the deposition of the witnesses that the
combine harvester was there on the disputed land
and the accused persons had not encroached upon
the land to assert their possession. To that extent
the finding of the learned trial Judge cannot be
found fault with.
17.
At this juncture, we are obliged to state that
though there has been compartmentalization of
the reasoning, basically there are three aspects
which require scrutiny. The learned trial Judge had
not accepted the credibility of the prosecution
witnesses about the involvement of the accused in
firing as a result of which the deceased and the
injured persons sustained injuries. For supporting
the same he had given emphasis on certain
discrepancies, which the learned counsel for the
State would submit, are absolutely minor in
nature. It is worthy to note that the learned trial
Judge had recorded the discrepancies and referred
to the ballistic report to support his conclusion that
the prosecution had not established the case and
in all possibility had tried to protect the real
assailants.
To test the justifiability of the said
finding and the ultimate conclusion it is necessary
to evaluate the evidence brought on record. PW-
16, the investigating officer, had clearly deposed
that he had seized four empty cartridges – C-1 to
C-4 from the spot where he arrived in quite
promptitude. On a perusal of the ballistic report, it
is manifest that ]they were not fired from the
weapon, Ext.-15, seized from the house of the
accused-appellant.
The learned trial Judge had
taken note of the fact that the pellets marks were
there on the walls of the house of the appellant,
which were visible from the photographs, Ext.-DA
to DC. These aspects show that there were also
other persons present at the spot who had come
with arms.
It is demonstrable from the material
brought on record that there were people from the
Harijan community who had come to the disputed
land and fired at the house of the accused
persons.
The said conclusion is buttressed from
the fact that the empties found from the spot were
not fired from the gun of the accused.
18.
Quite
apart
from
the
above,
cross-
examination of the eye-witnesses it is also clear
that the members of the Harijan community had
licensed guns and they hearing the shout had
gathered at the spot.
The High Court while
lancinating the finding of the learned trial Judge on
this score has only given a cryptic opinion without
any reason that it does not create a dent on the
prosecution case. In our considered opinion, such
unsettling of a reasonable finding in a cryptic
manner is not acceptable.
We are of the
considered view that it creates a grave dent on the
version advanced by the prosecution.
19.
Another aspect needs to be addressed. The
learned trial Judge has disbelieved the version of
the prosecution relating to firing by the appellant
on deceased Kamla and other injured persons on
two counts, namely, the range from which it was
fired on deceased Kamla, and there is no material
on record to connect the injuries with the seized
fired arms.
The High Court has overturned the
distance part but has not really dwelled upon the
other aspect. As far as the facet of the distance is
concerned, the opinion of the High Court seems to
be sound.
But the fact remains that there is no
material on record to connect that the gunshot
injuries suffered by the deceased are due to the
shots fired from the gun of the appellant. It is also
discernible that though the pellets were recovered
but the same have not been connected with the
weapon.
Thus, we find there is a material
contradiction in the oral evidence adduced by the
prosecution on one hand and the ballistic report on
the other.
20.
In Brijpal Singh’s case, the High Court had
affirmed the conviction of the appellant therein. It
was the case of the prosecution that A-1 at the
exhortation of A-3 shot the deceased from point
plank range on the head of the deceased from a
mouser gun which shattered the right side of the
head causing death on the spot. This Court, after
examining the ballistic report, opined that on a
perusal of the said report it was clear that the
weapon alleged to have been used in causing the
fatal injury would not have been the mouser gun
carried by A-1 because the definite report of the
ballistic expert that the discharged empties of
cartridge found near the dead body were not that
fired from the mouser gun.
The Court also took
note of the fact that A-2 therein who had fired
which missed him but got embedded in the wall of
the house, according to the ballistic report the
embedded cartridges could have been fired from
the mouser gun and not from a .12 bore gun which
was used for firing. This was treated as a serious
contradiction between the oral evidence and the
ballistic report.
Be it noted, a contention was
advanced by the learned counsel for the State that
if the oral evidence is found to be acceptable by
the court any contradiction to the ballistic reports,
the acceptable oral evidence should always be
preferred.
agreed
Dealing with the contention the court
with
normally,
if
the argument
the eye
by
stating
witness’s
that
evidence
is
acceptable, the argument of the State would be
accepted but as the factual position revealed the
witnesses
were
interested
persons
and
independent witnesses had not been examined
and further there was inter se contradiction in the
evidence of certain eye witnesses. Eventually, the
Court
while
acquitting
the
appellant
therein
observed thus: -
“Then, we notice the prosecution has
not bothered to clarify the report of
the ballistic expert even though the
same was contradictory to the oral
evidence which creates a very serious
doubt in our mind as to the presence
of eye-witnesses at the place of
incident.
Keeping in mind the
partisan nature of eye-witnesses and
contradictions in their evidence, we
think this appellant is also entitled to
benefit of doubt.”
21.
In the instant case, the ballistic report, Ext.
P.UU, though refers to the mutilated pellets stated
to have been recovered from the body of the
deceased Kamla and also the two different leads
pellets from the body of Murti, but is not definite
that .12 bore DBBL gun, Ext. W/1, that was seized
from the appellant, was used for firing such
gunshots.
This fact has been totally ignored by
the High Court in an extremely cryptic manner.
22.
At this juncture, we may note with profit
another aspect that has been highlighted by the
learned
counsel
for
the
respondent.
The
prosecution has not examined Chander, husband
of the deceased, a relevant eye witness, Bala,
Murti and Bimla, three other injured witnesses. No
explanation has been given by the prosecution.
Though there have been certain suggestions to
PW-16 in the cross-examination, but his answer is
evasive.
It is well settled in law that non-
examination of the material witness is not a
mathematical formula for discarding the weight of
the testimony available on record howsoever
natural, trustworthy and convincing it may be.
The charge of withholding a material witness from
the court levelled against the prosecution should
be examined in the background of the facts and
circumstances of each case so as to find whether
the witnesses are available for being examined in
the
court
and
were
yet
withheld
by
the
prosecution.
(See:
State
of
H.P
.
v.
Gian
Chand19)
23.
In this context, we may also note with profit a
passage
from
Takhaji
Hiraji
v.
Thakore
Kubersing Chamansing20: -
“19... It is true that if a material witness,
who would unfold the genesis of the
incident or an essential part of the
prosecution case, not convincingly
brought to fore otherwise, or where
there is a gap of infirmity in the
prosecution case which could have been
supplied or made good by examining a
witness who though available is not
examined, the prosecution case can be
termed as suffering from a deficiency
and withholding of such a material
witness would oblige the court to draw
an adverse inference against the
prosecution by holding that if the
witness would have been examined it
would
not
have
supported
the
prosecution case. On the other hand if
already overwhelming evidence is
available and examination of other
witnesses would only be a repetition or
19
(2001) 6 SCC 71
20
(2001) 6 SCC 145
Page 36
37
duplication of the evidence already
adduced, non-examination of such other
witnesses may not be material. In such
a case the court ought to scrutinize the
worth of the evidence adduced. The
court of facts must ask itself – whether
in the facts and circumstances of the
case, it was necessary to examine such
other witness, and if so, whether such
witness was available to be examined
and yet was being withheld from the
court? If the answer be positive then
only a question of drawing an adverse
inference may arise. If the witnesses
already examined are reliable and the
testimony coming from their mouth is
unimpeachable the court can safely act
upon it, uninfluenced by the factum of
non-examination of other witnesses.”
24.
Recently in Manjit Singh and Anr. v. State
of Punjab and Anr.21, this Court, after referring to
earlier decisions, has opined thus: -
“...it is quite clear that it is not the
number and quantity but the quality
that is material. It is the duty of the
Court to consider the trustworthiness of
evidence on record which inspires
confidence and the same has to be
accepted and acted upon and in such a
situation no adverse inference should be
drawn from the fact of non-examination
of other witnesses. That apart, it is also
21
JT 2013 (11) SCALE 394
Page 37
38
to be seen whether such non-
examination of a witness would carry
the matter further so as to affect the
evidence of other witnesses and if the
evidence of a witness is really not
essential to the unfolding of the
prosecution
case,
it
cannot
be
considered a material witness (see:
State of U.P v. Iftikhar Khan and
.
22
others ).”
25.
In the case at hand, non-examination of the
material witnesses is of significance.
It is so
because PW-11 is really an interested witness
though the High Court has not agreed with the
same.
It appears from the material brought on
record that he had an axe to grind against the
appellant. That apart, Chander, who was present
from the beginning, would have been in a position
to disclose more clearly about the genesis of the
occurrence.
He is the husband of the deceased
and we find no reason why the prosecution had
withheld the said witness.
Similarly, the other
three witnesses who are said to be injured
22
(1973) 1 SCC 512
Page 38
39
witnesses when available should have come and
deposed.
matrix
Therefore, in the obtaining factual
that
their
non-examination
gains
significance.
26.
In this regard, another aspect requires to be
taken note of.
The case of the prosecution was
that Mohinder Singh had snatched away the gun
and fired at Mithan Singh and Bimla. The learned
trial Judge disbelieving the prosecution version
had acquitted him. The High Court has given him
benefit of doubt. We are of the considered opinion
that regard being had to the totality of evidence,
both oral and documentary, there was no reason
to extend the said benefit of doubt to the
appellant. The High Court has fallen into error on
that score.
27.
In view of the aforesaid analysis, the appeal
is allowed, the judgment passed by the High Court
is set aside and that of the learned trial Judge is
Page 39
40
restored. As the appellant is in custody, he be set
at liberty forthwith unless his retention is required
in connection with any other case.
.....................................J.
[K.S. Radhakrishnan]
.....................................J.
[Dipak Misra]
New Delhi;
October 24, 2013.
Page 40
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