It is vehemently contended that the evidence of the prosecution
witnesses is exaggerated and thus false. Cambridge Dictionary defines “exaggeration” as “the fact of making something larger, more important, better or worse than it really is”. MerriamWebster defines the term “exaggerate” as to “enlarge beyond bounds or the truth”. The Concise Oxford Dictionary defines it as “enlarged or altered beyond normal proportions”. These expressions unambiguously suggest that the genesis of an ‘exaggerated statement’ lies in a true fact, to which fictitious additions are made so as to make it more penetrative. Every
exaggeration, therefore, has the ingredients of ‘truth’. No exaggerated statement is possible without an element of truth. On the other hand, Advance Law Lexicon defines “false” as “erroneous, untrue; opposite of correct, or true”. Oxford Concise Dictionary states that “false” is “wrong; not correct or true”. Similar is the explanation in other dictionaries as well. There is, thus, a marked differentia between an ‘exaggerated version’ and a ‘false version’. An exaggerated statement contains both truth and falsity, whereas a false statement has no grain of truth in it (being the ‘opposite’ of ‘true’). It is well said that to make a mountain out of a molehill, the molehill shall have to exist primarily. A Court of law, being mindful of such distinction is duty bound to disseminate ‘truth’ from ‘falsehood’ and sift the grain from the chaff in case of exaggerations. It is only in a case where the grain and the chaff are so inextricably intertwined that in their separation no real evidence survives, that the whole evidence can be discarded. {Para 4}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1140 1141
OF 2010
Achhar Singh Vs State of Himachal Pradesh
Author: Surya Kant, J:
DATED : 07.05.2021
The appellants Achhar Singh and Budhi Singh are aggrieved by
the judgment and order dated 12.05.2010/27.05.2010 passed by the
High Court of Himachal Pradesh whereby their acquittal by the Addl.
Sessions Judge, Mandi dated 24.02.1998 has been set aside.
Consequently, Achhar Singh has been convicted for offences under
Sections 452, 326 and 323 of the Indian Penal Code, 1860 (“IPC”) and
sentenced to undergo rigorous imprisonment for five years along with
fine, while Budhi Singh has been convicted for offences under Sections
302 and 452 IPC and sentenced to undergo imprisonment for life
along with fine.
FACTS:
2. The prosecution case, in brief, is that on the night of
23.02.1996, the complainant Netar Singh’s wife (Meera Devi, P.W.11)
and mother (Swari Devi) had attended the marriage function in a
nearby village at the house of the bridegroom with whom their
neighbour Budhi Singh’s daughter got married. Both the ladies
returned home with ‘Dhaam’ (traditional food served on social events).
It is relevant to mention here that owing to their social boycott by
Budhi Singh and some other villagers, Netar Singh’s family did not
attend any marriage function at the former’s house. At about 8 pm
when the complainant and his family were taking Dhaam, Budhi
Singh, Achhar Singh along with some other villagers shouted for the
complainant and his father (Beli Ram, P.W.12) to come out. When they
neared the door, they sensed the intention of the accused to kill the
complainant party. The appellants and other villagers started pelting
stones at the complainant party which forced them to rush back to the
house and bolt their door. The assailants, however, broke open the
door and entered the house bearing arms. Budhi Singh and Achhar
Singh had axes, while the other accused were armed with sickles,
spears and sticks. It is alleged that Budhi Singh executed an axe blow
on Swari Devi’s head causing her death on the spot and Achhar Singh
hit Beli Ram with an axe due to which the latter fainted. The
complainant was also allegedly beaten with sticks by other villagers
after which he somehow managed to escape to the roof. Meera Devi
begged the assailants for mercy and they left threatening that the
complainant’s family will be killed if they tried to leave the house.
3. Meanwhile, some villagers including Govind Ram (D.W.2) and
Bahadur who were standing outside intervened and called on the
accused persons to stop the violence whereupon the accused were
forced to leave the place of incident. Afterwards, at around 2:00 AM
the complainant went to the house of the Pradhan of Gram Panchayat
(Beasa Devi D.
W.1) to inform her about the assault. She advised the
complainant to contact the police. Since phone lines were down in the
village and no buses plied at night, the complainant walked 24 kms to
Jogindernagar police station and lodged FIR No. 36 of 1996 against
sixteen villagers including the appellants at 9:30 AM on 24.02.1996.
The police after investigation found that only seven persons out of the
lot were involved in the attack against whom chargesheet
was filed.
The accused persons were committed to stand trial for offence under
Sections 147, 148, 452, 506, 323, 302 and 326 of the IPC.
4. The Additional Sessions Judge, Mandi acquitted all the accused
vide judgment dated 24.02.1998. The trial Court while observing prior
enmity and extensive litigation between the parties, did not rule out
the possibility of false implication. The belatedly exaggerated
allegations by the prosecution witnesses, were held to be an attempt
by the complainant party to rope in as many people as possible. In
regard to the role of present appellants, it was pointed out that
according to the FIR, Swari Devi died owing to a single axe blow
inflicted by Budhi Singh and the postmortem
report also showed only
one head injury on her person. However, three prosecution eyewitnesses,
namely, Netar Singh – P.W.1 (the complainant), Meera Devi
– P.W.11 and Beli Ram – P.W.12 deposed that Budhi Singh gave two
axe blows on her head and then Narinder Singh (coaccused)
also hit
the deceased’s left ear with an axe twice. It was further noticed that
while the complainant initially stated that his father was attacked on
the face by Achhar Singh and Prakash (coaccused),
but in their
depositions the injured or eyewitnesses have attributed attacks to
other coaccused
persons also which were not corroborated by the
medico legal report of Beli Ram. They also changed the nature of
attack attributed to coaccused
Prakash.
5. The trial Court also observed that eyewitness – Govind Ram
(D.W.2) did not support the prosecution story and the Gram
Panchayat Pradhan (Beasa Devi – D.W.1) stated that the complainant
only informed her about a minor dispute after which she advised him
to contact the police. Noting that no evidence was put forth by the
complainant to establish the unavailability of telephone network in the
neighbouring village, the Court found the delay in registering the FIR
to be fatal to the prosecution. The spot of occurrence was also
doubted observing that bloodstains were noticed in the passage
leading to the village. Keeping in view the conflicting exaggerations by
the prosecution witnesses coupled with the allegation that about
sixteen persons entered a small room and started attacking the
complainant party with various deadly weapons, the trial Court could
not attribute any specific injury to any of the accused and thus
acquitted them all by giving the benefit of doubt.
6. The High Court upon reappreciation
of the entire evidence, set
aside the acquittal of the appellants Achhar Singh and Budhi Singh
though it has upheld the acquittal of the rest of the five accused.
While acknowledging the contradiction between the contents of FIR,
the witness testimonies and the medical reports, the High Court stated
that a thread of consistent evidence against the appellants could still
be extracted from the material on record, howsoever messy it was.
Disregarding the exaggerations and improvements made by the
complainant party, the High Court observed that the allegation of the
first axe blow by Budhi Singh on the head of Swari Devi was
corroborated by the FIR, the prosecution witnesses, the postmortem
report which mentioned one fatal head injury by a sharp weapon and
the recovery of axe from him. The High Court noted that the
allegations against Achhar Singh with regard to his assault on Beli
Ram with an axe were also consistent, and medical evidence showed
that some injuries could have been caused by an axe.
7. It was noticed that Govind Ram (D.W.2) being the soninlaw
of
the appellant Budhi Singh could not have deposed against him. While
dealing with the delay in filing the FIR, the High Court considered the
unavailability of buses at night, terrain of the area and the distance
between the complainant’s house and Jogindernagar police station (24
kms) while concluding that he could not have reached there until next
morning. With regard to the trial Court’s confusion about the spot of
the occurrence, it was held that the evidence regarding the broken
windowpanes, scattered articles in the room, plates with leftover food
etc. was enough to conclude that the occurrence took place inside the
room and the presence of random blood marks elsewhere ought not to
be given undue credit. It was also observed that since the marriage of
Budhi Singh’s daughter was solemnized on 21.02.1996, no marriage
function could have been underway at Budhi Singh’s house on the
night of the incident. While observing that the evidence on record did
not suggest a common intention to kill Swari Devi or cause grievous
hurt to Beli Ram, the appellants were held to be liable for their
individual acts. Budhi Singh was thus convicted for offences under
Sections 302 and 452 IPC and Achhar Singh was convicted for the
offences under Sections 452, 326 and 323 IPC. They have now come to
this Court against their conviction by the High Court.
CONTENTIONS :
8. Relying on Murugesan v. State1, Learned Senior Counsel for
Budhi Singh contended that so long as the trial Court’s view was a
‘possible view’, further scrutiny by the High Court in exercise of
powers under Section 378 CrPC was not called for. While citing
Aruvelu v. State2, it was urged that the trial Court’s judgment cannot
be set aside merely because the appellate Court’s view is more
probable and that to merit interference by the High Court there has to
be perversity in the trial Court’s judgment. It was also pressed that
owing to their proximity to the witnesses, the trial Courts are at an
advantage to judge the credibility of the witnesses and make
intangible observations. Learned Senior Counsel highlighted the
prosecution witnesses’ tendency to exaggerate and falsely implicate,
and pointed out that the four head injuries to the deceased as alleged
1 (2012) 10 SCC 383.
2 (2009) 10 SCC 206.
by the eyewitnesses
were falsified by the medical evidence which
showed only one head injury. It was also accentuated that nine
persons who were mentioned in the FIR were let go at the stage of
charge as bystanders. The contention was that the prosecution also
ought to have arrayed these nine persons as witnesses. Salim Akhtar
v. State of UP3 was cited to urge that since the axe was recovered
from a public place, it could not be held that Budhi Singh was in
possession of the article recovered. Additionally, no conclusive
presence of blood on the axes recovered was stated in the FSL report.
9. Highlighting the fact that there was a marriage function going on
in Budhi Singh’s house, it was urged that he had no reason to leave
midcelebration
and attack his neighbours. Doubt was also cast on
the actual spot of the incident contending that P.W.16 – ASI Jaisi Ram
had deposed that there was a blood trail outside the house. It was
further contended that Narinder Singh had also been accused of
inflicting a head injury on the deceased with an axe and despite
recovery of an axe from him, the High Court has not interfered with
his acquittal. Suspicion was cast on the actual time of lodging the FIR
(lodged at 9:30AM) as P.W.11 Meera
Devi had stated in her cross
examination that the police arrived at 89
AM in the morning. It was
then asserted that the police could not have arrived before the FIR had
3 (2003) 5 SCC 499, ¶ 1112.
been lodged. Doubt was also cast on the exact time of death of the
deceased as the prosecution witnesses stated that she died on the spot
whereas according to P.W.3 – Dr. D.D. Rana who conducted the postmortem,
the time between the death and the postmortem
(on
25.02.1996 at 11am) was ‘within 10 hours’.
10. Learned Senior Counsel for Achhar Singh also reiterated these
very contentions and made a pointed reference to the statements of
eyewitnesses
according to which, some other accused besides Achhar
Singh, too had hit Beli Ram with their respective weapons. It was
claimed that trial Court rightly expressed its inability to identify the
definite architect of individual injuries.
11. On the other hand, counsel for the State while placing reliance
on Sheikh Hasib @ Tabarak v. State of Bihar4 & Dharma Rama
Bhagare v. State of Maharashtra5, canvassed that the FIR was not
a substantive piece of evidence and could be used for contradicting or
corroborating only its maker and not other witnesses. He contended
that the credibility of the witnesses cannot be called into question
merely because they were related to the deceased (while citing State
of UP v. Kishan Chand6) or because there were minor discrepancies
4 (1972) 4 SCC 773.
5 (1973) 1 SCC 537.
6 (2004) 7 SCC 629.
or exaggerations (relying on Leela Ram v. State of Haryana7). While
bringing out attention to this Court’s observations in Gangadhar
Behera v. State of Orissa8 and Prabhu Dayal v. State of
Rajasthan9 it was urged that inconsistent evidence by the
prosecution witnesses against one accused cannot be capitalised to
give the benefit of doubt to another.
ANALYSIS :
12. The question which falls for consideration in these appeals is
whether the High Court while exercising its powers under Section 378
of the Code of Criminal Procedure, 1973 (“CrPC”) was justified in
interfering with the acquittal by the trial Court?
13. It is fundamental in criminal jurisprudence that every person is
presumed to be innocent until proven guilty, for criminal accusations
can be hurled at anyone without him being a criminal. The suspect is
therefore considered to be innocent in the interregnum between
accusation and judgment. History reveals that the burden on the
accuser to prove the guilt of the accused has its roots in ancient times.
The Babylonian Code of Hammurabi (17921750
B.C.), one of the
oldest written codes of law put the burden of proof on the accuser.
7 (1999) 9 SCC 525.
8 (2002) 8 SCC 381.
9 (2018) 8 SCC 127.
Roman Law coined the principle of actori incumbit (onus) probatio (the
burden of proof weighs on the plaintiff) i.e., presumed innocence of the
accused. In Woolmington v. Director of Public Prosecutions10, the
House of Lords held that the duty of the prosecution to prove the
prisoner’s guilt was the “golden thread” throughout the web of English
Criminal Law. Today, Article 11 of the Universal Declaration of Human
Rights, Article 14 of the International Covenant on Civil and Political
Rights and Article 6 of the European Convention on Human Rights all
mandate presumption of innocence of the accused.
14. A characteristic feature of Common Law Criminal Jurisprudence
in India is also that an accused must be presumed to be innocent till
the contrary is proved. It is obligatory on the prosecution to establish
the guilt of the accused save where the presumption of innocence has
been statutorily dispensed with, for example, under Section 113B
of
the Evidence Act, 1872. Regardless thereto, the ‘Right of Silence’
guaranteed under Article 20(3) of the Constitution is one of the facets
of presumed innocence. The constitutional mandate read with the
scheme of the Code of Criminal Procedure, 1973 amplifies that the
presumption of innocence, until the accused is proved to be guilty, is
an integral part of the Indian criminal justice system. This
presumption of innocence is doubled when a competent Court
10 [1935] AC 462 (HL)
analyses the material evidence, examines witnesses and acquits the
accused. Keeping this cardinal principle of invaluable rights in mind,
the appellate Courts have evolved a selfrestraint
policy whereunder,
when two reasonable and possible views arise, the one favourable to
the accused is adopted while respecting the trial Court’s proximity to
the witnesses and direct interaction with evidence. In such cases,
interference is not thrusted unless perversity is detected in the
decisionmaking
process.
15. It is thus a well crystalized principle that if two views are
possible, the High Court ought not to interfere with the trial Court’s
judgment. However, such a precautionary principle cannot be
overstretched to portray that the “contours of appeal” against acquittal
under Section 378 CrPC are limited to seeing whether or not the trial
Court’s view was impossible. It is equally well settled that there is no
bar on the High Court’s power to reappreciate
evidence in an appeal
against acquittal11. This Court has held in a catena of decisions
(including Chandrappa v. State of Karnataka12 , State of Andhra
Pradesh v. M. Madhusudhan Rao13 and Raveen Kumar v. State of
Himachal Pradesh14,) that the CrPC does not differentiate in the
11 Sangappa v. State of Karnataka, (2010) 3 SCC 686, ¶ 10.
12 (2007) 4 SCC 415, ¶ 42.
13 (2008) 15 SCC 582, ¶ 20 – 21.
14 2020 SCC OnLine SC 869, ¶ 11.
power, scope, jurisdiction or limitation between appeals against
judgments of conviction or acquittal and that the appellate Court is
free to consider on both fact and law, despite the selfrestraint
that
has been ingrained into practice while dealing with orders of acquittal
where there is a double presumption of innocence of the accused.
16. The trial Court in the instant case rightly observed that the
evidence was chaotic with regard to many accused persons and no
definite view could be formed regarding their participation. The High
Court also shared the view of the trial Court and expressed concern
regarding the exaggerations and contradictions within the evidence.
Keeping in mind the attempts by the prosecution witnesses to
implicate numerous people, the High Court delineated the strands of
consistent evidence against some of the accused which were
overlooked by the trial Court amid the chaos. While analysing the
witness statements and other evidence, we will now consider whether
the High Court did so correctly.
17. Complainant Netar Singh (P.W.1), deposed that when the
accused persons broke open the door and entered their house, Budhi
Singh, Achhar Singh, Narinder Singh were armed with axes, Prakash
had a spear, Sodha Ram had a sickle and other accused (Jai Singh
and Hem Singh) were bearing sticks. While mentioning the present
appellants he said that “Budhi Singh accused gave two axe blows on
the head of my mother, while Narender accused gave two axe blows
one above the left ear and second below the left ear of my mother, and
my mother Swari Devi died on the spot... Achhar Singh and Sodha also
gave blows of drat and axe to my father. As a result of the beatings my
father became unconscious and fell down. Hem Singh and Jai Singh
accused gave me danda blows”. It was also mentioned that the
accused had broken the door, windows and utensils. He then
described how he went to the Pradhan’s house at 2:00 AM and later to
the far away police station (Jogindernagar) on foot and lodged the FIR
at about 89
AM the next morning. He also mentioned that prior
animosity existed between the parties because Budhi Singh and
Narinder Singh wanted to purchase the land where he had
constructed a house and that his father Beli
Ram had previously
filed a case against the accused persons in which they had been
acquitted.
18. Meera Devi – P.W.11, the daughter in law of the deceased stated
in her testimony that Budhi Singh and Narinder Singh were armed
with axes, while Prakash carried a spear and Sodha Ram carried a
sickle. She said that “Budhi Singh accused gave two blows of axe on
the head of my motherinlaw
Smt. Swari Devi on which my motherinlaw
raised cry. Narinder Singh accused gave two blows of axe on the
ear of my motherinlaw
and my motherinlaw
fell down and died.
Narinder Singh gave blow from backside of the axe to Beli Ram on his
face and Achhar Singh gave blow of axe on the neck of Beli Ram. Sodha
Ram gave drat blow on the leg of my fatherinlaw
Beli Ram…Jai Singh
and Hem Singh gave danda blow to my husband Netar Singh.” She
stated that her husband escaped to the roof, reported the matter to
the Pradhan and came back with the police the next day. Her husband
and fatherinlaw
were taken for medical examination and her motherinlaw’s
body was sent for postmortem.
During her crossexamination,
she mentioned that the police came at about 89AM
in
the morning.
19. Injured witness, Beli Ram (P.W.12) was also examined and he
stated that Budhi Singh, Narinder and Achhar Singh came bearing
axes, while Prakash had a spear, Sodha Ram had a sickle and Jai and
Hem Singh were armed with sticks. While describing the attacks, he
said that “Budhi Singh gave two blows of axe on the head of my wife,
Swari Devi and two blows of axe were given by Narinder near the ear of
my wife and my wife died on the spot. Achhar Singh accused gave axe
blow on the backside of my head while Sodha accused gave drat blow
on my leg….Netar Singh was given beatings by Jai Singh and Hem
Singh with danda and stones.” He added that his son escaped through
the roof. It was mentioned that the accused persons had formed a
committee to boycott them and thus nobody from the village gave
evidence in their favour. He also disclosed that “Narinder Singh
accused also gave blow blunt side of the axe on my face near ear.”
Thereafter, he fell unconscious and was medically examined at the
hospital.
20. Dr. DD Rana, who conducted the postmortem
of the deceased
and medically examined the injured (Netar Singh and Beli Ram) was
examined as P.W.3. with regard to Swari Devi, he described one
incised wound on the left temporal region, which he stated, could have
been caused by the axe shown in Court. On medically examining Beli
Ram, he stated that he found incised wounds on the face and the back
of his skull, a lacerated wound on the right foot, fracture in the facial
bone and a black eye. He said that the incised wounds were possible
by the axe shown in Court and the rest were possible by stick blows.
During crossexamination,
he added that the incised injuries on Beli
Ram could be inflicted by falling on a sharpedged
stone and other
injuries were possible from falling on a hard surface. After medically
examining Netar Singh (P.W.1), he is stated to have found abrasions
on the right foot, left leg and forehead. He added that such injuries
were possibly a result of stick blows and could also be from a fall.
21. A meticulous reading of the above statements makes it clear that
even if the exaggerations of multiple axe blows being given to the
deceased were discarded, the allegation that Budhi Singh entered the
house of the victims armed with an axe and hit Swari Devi on her
head, and that Swari Devi died due to a head injury was consistent
and undisputed throughout the FIR and the deposition by prosecution
witnesses. The same is also supported by the postmortem
report
stating one fatal injury to the head by a sharpedged
weapon and the
medical officer’s testimony that her injury could have been caused by
the axe shown in Court. Considering this, the trial Court’s confusion
as to who caused Swari Devi’s fatal injury was unwarranted and
uncalled for.
22. The fact that Budhi Singh executed an axe blow on Swari Devi’s
head knowing fully well that an axe blow on an old woman’s vital body
part would in all probability cause her death, justifies his conviction
for the offence under Section 302 IPC. As for Achhar Singh, we find
that the injuries sustained by Beli Ram (incised wounds on the face
and posterior skull along with fracture in the facial bone) being a
combination of grievous and simple injuries were opined to have been
caused by both sharp and blunt edged weapons. Considering that all
the witnesses have been consistent about Achhar Singh’s attack on
Beli Ram with an axe, his conviction under Sections 326 and 323 IPC
cannot be found faulty and deserves to be upheld.
23. The appellants’ contention that the testimony of P.W.1, P.W.11
or P.W.12 was wholly unbelievable and inconsistent with the evidence
of the Doctor (P.W.3) and the postmortem
report, is unacceptable. As
noticed earlier, the prosecution witnesses have given an overexaggerated
version of the injuries suffered by the deceased. They
have, however, consistently deposed that the head injury which proved
to be fatal, was caused by Budhi Singh. Their statement, to this
extent, is consistent and in conformity with the medical evidence on
record. Despite the fact that the presence of many persons inside the
room of occurrence created chaos and some of such persons were
bystanders or fence sitters, the eyewitnesses
have been able to see
that the fatal blow to the deceased was caused by none else than
Budhi Singh.
24. It is vehemently contended that the evidence of the prosecution
witnesses is exaggerated and thus false. Cambridge Dictionary defines
“exaggeration” as “the fact of making something larger, more important,
better or worse than it really is”. MerriamWebster
defines the term
“exaggerate” as to “enlarge beyond bounds or the truth”. The Concise
Oxford Dictionary defines it as “enlarged or altered beyond normal
proportions”. These expressions unambiguously suggest that the
genesis of an ‘exaggerated statement’ lies in a true fact, to which
fictitious additions are made so as to make it more penetrative. Every
exaggeration, therefore, has the ingredients of ‘truth’. No exaggerated
statement is possible without an element of truth. On the other hand,
Advance Law Lexicon defines “false” as “erroneous, untrue; opposite of
correct, or true”. Oxford Concise Dictionary states that “false” is
“wrong; not correct or true”. Similar is the explanation in other
dictionaries as well. There is, thus, a marked differentia between an
‘exaggerated version’ and a ‘false version’. An exaggerated statement
contains both truth and falsity, whereas a false statement has no
grain of truth in it (being the ‘opposite’ of ‘true’). It is well said that to
make a mountain out of a molehill, the molehill shall have to exist
primarily. A Court of law, being mindful of such distinction is duty
bound to disseminate ‘truth’ from ‘falsehood’ and sift the grain from
the chaff in case of exaggerations. It is only in a case where the grain
and the chaff are so inextricably intertwined that in their separation
no real evidence survives, that the whole evidence can be discarded.15
25. Learned State counsel has rightly relied on Gangadhar Behera
(Supra) to contend that even in cases where a major portion of the
evidence is found deficient, if the residue is sufficient to prove the guilt
of the accused, conviction can be based on it. This Court in Hari
Chand v. State of Delhi16 held that:
“24. …So far as this contention is concerned it must be kept in
view that while appreciating the evidence of witnesses in
15 Sucha Singh v. State of Punjab, (2003) 7 SCC 643, ¶ 18.
16 (1996) 9 SCC 112.
a criminal trial especially in a case of eyewitnesses the
maxim falsus in uno, falsus in omnibus cannot apply
and the court has to make efforts to sift the grain from
the chaff. It is of course true that when a witness is said
to have exaggerated in his evidence at the stage of trial
and has tried to involve many more accused and if that
part of the evidence is not found acceptable the
remaining part of evidence has to be scrutinised with
care and the court must try to see whether the
acceptable part of the evidence gets corroborated from
other evidence on record so that the acceptable part can
be safely relied upon...”
(emphasis supplied)
26. There is no gainsaid that homicidal deaths cannot be left to
judicium dei. The Court in their quest to reach the truth ought to
make earnest efforts to extract gold out of the heap of black sand. The
solemn duty is to dig out the authenticity. It is only when the Court,
despite its best efforts, fails to reach a firm conclusion that the benefit
of doubt is extended.
27. An eyewitness
is always preferred to others. The statements of
P.W.1, P.W.11 and P.W.12 are, therefore, to be analysed accordingly,
while being mindful of the difference between exaggeration and falsity.
We find that the truth can be effortlessly extracted from their
statements. The trial Court apparently fell in grave error and
overlooked the credible and consistent evidence while proceeding with
a baseless premise that the exaggerated statements made by the eyewitnesses
belie their version.
28. As regard to the appellants’ contention that an appellate Court is
not justified in reversing the trial Court’s judgment unless it was
found to be “perverse”, it is important to point out that in the instant
case, the trial Court being overwhelmed by many contradictions failed
to identify and appreciate material admissible evidence against the
appellants. The trial Court misdirected itself to wrong conclusions.
Suffice it to cite Babu v. State of Kerala17 where this Court observed
that:
“12. …While dealing with a judgment of acquittal, the appellate
court has to consider the entire evidence on record, so as to
arrive at a finding as to whether the views of the trial court
were perverse or otherwise unsustainable. The appellate
court is entitled to consider whether in arriving at a
finding of fact, the trial court had failed to take into
consideration admissible evidence and/or had taken into
consideration the evidence brought on record contrary to
law…”
(emphasis supplied)
29. There are numerous later decisions (including Aruvelu v. State
(supra), Triveni Rubber & Plastics v. CCE18 and Basalingappa v.
17 (2010) 9 SCC 189.
18 1994 Supp (3) SCC 665, ¶ 3.
Mudibasappa19) where this Court has firmly held that a finding
contrary to the evidence is “perverse”. The finding of the trial Court in
ignorance of the relevant material on record was undoubtedly
“perverse” and ripe for interference from the High Court.
30. While testing the ‘possibility’ of the conclusion drawn by the trial
Court, it has to be kept in mind that neither is there a reason on
record nor have the appellants led any defence evidence to suggest as
to why Netar Singh (P.W.1), his wife Meera Devi (P.W.11) or his father
Beli Ram (P.W.12) would allow the real culprits to go scotfree
and
instead falsely implicate the appellants to settle scores on trivial
issues. Rather, from the very beginning (FIR) till their last deposition,
the complainant and other two injured/eye witnesses have been
consistently accusing Budhi Singh for committing murder of Swari
Devi and Achhar Singh for grievously hurting Beli Ram. Their ocular
version is duly corroborated by the medical evidence on record. This
Court in Dalip Singh v. State of Punjab20 opined that:
“26….Ordinarily, a close relative would be the last to
screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to
drag in an innocent person against whom a witness has
19 (2019) 5 SCC 418, ¶ 31.
20 AIR 1953 SC 364, ¶ 26.
a grudge along with the guilty, but foundation must be
laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any
sweeping generalisation. Each case must be judged on its own
facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts.”
(emphasis supplied)
This decision has been usually followed by this Court in various
cases such as, Mohd. Rojali Ali v. State of Assam21, Laltu Ghosh v.
State of West Bengal22, Khurshid Ahmed v. State of J&K23 and
Shanmugam v. State24.
31. Coming to the arguments of Learned Senior Counsel for the
appellants that since the axe was recovered from a public place it
should not have been held to be in the possession of Budhi Singh or
that an axe was also recovered from Narinder Singh (with whom parity
was sought), it is clear from the facts that this was a farming
community in rural Himachal where tools like axes are found in
everyone’s homes. The argument that the spot of incident was
doubtful as there was a blood trail outside the house as deposed by
21 (2019) 19 SCC 567, ¶ 14.
22 (2019) 15 SCC 344 ¶ 14.
23 (2018) 7 SCC 429, ¶ 29.
24 (2013) 12 SCC 765, ¶ 13.
P.W.16 ASI
Jaisi Ram, carries no force. The presence of random
blood marks elsewhere could not put in doubt the fact that the
incident happened in the house of the complainant from where the
same witness recovered sticks, bloodstained
stone, glass splinters,
pieces of wood and leftover food, etc. The fact that the ASI did not find
it necessary or even material to investigate the blood marks shows
that they had no legal impact on the investigative conclusions. It is
pertinent to note that independent witness P.W.14 Lauhalu
Ram
also corroborated the recovery of broken pieces of the door, broken
bulb, stones, bloodstained
soil etc. from the house of the
complainant.
32. Nonexamination
of many alleged bystanders is wellexplained
as
it is clear from the facts that the complainant’s family had prior
litigation with some people in the village and most of them had socially
boycotted the victim’s family. The fact that nine persons who were
initially accused in the FIR but not chargesheeted
subsequently, were
not arrayed as prosecution witnesses is understandable. It is not
necessary for the prosecution to examine every cited or possible
witness. So long as the prosecution case can withstand the test of
proof beyond doubt, nonexamination
of all or every witness is
immaterial.
33. This Court in Sarwan Singh v. State of Punjab25 was of the
view that:
“13.…The onus of proving the prosecution case rests entirely on
the prosecution and it follows as a logical corollary that the
prosecution has complete liberty to choose its witnesses if it is
to prove its case. The court cannot compel the prosecution to
examine one witness or the other as its witness. At the most, if
a material witness is withheld, the court may draw an adverse
inference against the prosecution…The law is wellsettled
that the prosecution is bound to produce only such
witnesses as are essential for unfolding of the
prosecution narrative. In other words, before an adverse
inference against the prosecution can be drawn it must be
proved to the satisfaction of the court that the witnesses who
had been withheld were eyewitnesses who had actually seen
the occurrence and were therefore material to prove the case. It
is not necessary for the prosecution to multiply witnesses
after witnesses on the same point; it is the quality rather
than the quantity of the evidence that matters. In the
instant case, the evidence of the eyewitnesses does not suffer
from any infirmity or any manifest defect on its intrinsic
merit…”
(emphasis supplied)
34. Similarly, the doubt cast on the actual time of death relying on
P.W.3 Dr.
D.D. Rana’s statement does not inspire confidence as he
besides stating that the time between the death and the postmortem
was ‘within 10 hours’, has also deposed that the time between the
25 (1976) 4 SCC 369, ¶ 13.
death of Swari Devi and the injury was ‘within 510
minutes’, thereby
supporting the prosecution witnesses who deposed that she died on
the spot owing to the injuries.
35. Coming to the case of Narinder Singh, whose acquittal has been
upheld by the High Court also, it is imperative to point out that the
FIR, though not an encyclopedia of the entire incident, is the most
spontaneous account of it. It is very hard to believe that the
complainant who walked seven hours overnight to reach the police
station to record his account of the incident would forget to mention a
fatal attack with a deadly weapon on his deceased mother by Narinder
Singh as well. Such a major omission on the complainant’s part is
very material to contradict his testimony in Court with regard to his
belated allegations against Narinder Singh. The medical evidence has
also not substantiated such allegations against Narinder Singh. The
High Court has only acted on consistent and corroborated evidence
against Budhi Singh and Achhar Singh which was conspicuously
missing in the case of Narinder Singh.
36. Likewise, the contention relying on P.W.11’s statement that the
police could not have arrived before the FIR was filed does not defeat
the case of the prosecution as it is a minor contradiction considering
that P.W.16 ASI
Jaisi Ram has deposed that he reached the house of
the complainant at 1PM on 24.02.1996. The argument that there was
no reason for Budhi Singh to start a fight with his neighbours on the
day of his daughter’s wedding also does not help the appellants. The
High Court has specifically pointed out that his daughter’s wedding
was solemnized two days prior to the date of the incident and there is
no credible evidence as to whether a wedding function was underway
at the relevant time. Even Budhi Singh has not said so in his
statement under Section 313 CrPC.
37. In light of the above discussion and upon an indepth
reading of
the trial Court and High Court records, we are convinced that the High
Court was merited to interfere with the perverse findings of the trial
Court and has prevented miscarriage of justice by separating grain
from the husks leading to the conviction of the appellants.
CONCLUSION :
38. For the abovestated
reasons, the appeals are dismissed. Achhar
Singh’s conviction under Sections 452, 326 and 323 IPC and Budhi
Singh’s conviction under Sections 302 and 452 IPC by the High Court
39. are maintained. Their bail bonds are cancelled and they are
directed to undergo the remainder of their sentence.
……………………….. CJI.
………………………… J.
(SURYA KANT)
…………………………. J.
(ANIRUDDHA BOSE)
NEW DELHI
DATED : 07.05.2021
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