To begin with, it would be apposite to recount the settled proposition of law that a conviction under Section 307 of the IPC may be justified only if the accused in question possessed intent coupled with some overt act in aid of its execution. State of Maharashtra v. Balram Bama Patil, 1983 (2) SCC 28; Vasant Vithu Jadhav v. State of Maharashtra, AIR 2004 SC 2678.Ascertaining the intention to kill or having the knowledge that death may be caused as a result of the overt act, is a question of fact and hinges on the unique circumstances that each case may present. Though these fundamentals have been established in a plethora of decisions across several decades, we have briefly mentioned the same to ensure a lucid understanding of the rationale behind the instant decision.
{Para 7}
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1151 OF 2010
Raju and Another Vs State of Uttarakhand
Author: SURYA KANT, J.
1. This appeal is directed against the judgment dated 10.12.2009 passed by
the High Court of Uttarakhand at Nainital (hereinafter, ‘High Court’) in Appeal
No. 1458/2001, whereby the judgment and order dated 13.10.1995 of the
Additional Sessions JudgecumSpecial Judge, Dehradun (hereinafter, ‘Trial
Court’) in S.T. No. 116/1994 was substantially set aside and the Appellant was
convicted under Section 307 of the Indian Penal Code, 1860 (hereinafter, ‘IPC’)
and sentenced to undergo seven years of rigorous imprisonment, along with a fine
of Rs. 1000/.
FACTS:
2. At this juncture, it is essential to outline the factual matrix as described in
the FIR to clearly understand the context of the instant appeal.
2.1. On 08.05.1994, Farzan Ali, the Complainant, filed an FIR being Case Crime
No. 84/1994 at the Vikasnagar Police Station, Dehradun, recounting the events of
the previous night. He reported that his son Imran, along with his friends Mathu,
1
Irfan, and Jakir, had gone for a latenight cinema show in Vikasnagar. On their
return around 12:30 a.m., they saw the Appellant and the other accused—Raju,
Bhola Ram, Manoj, and Suresh — standing near Gopal's house. The Appellant
and Bhola Ram were armed with knives, while Manoj and Suresh were carrying
dandas/lathis. The accused were seen in the light of a singular bulb lit in front of
Devdutt’s house.
2.2. The FIR states that Mathu and Imran inquired from the accused persons as
to why they had assembled there, which allegedly infuriated them and they
(accused) started hurling abuses at them and assaulted Imran, Mathu, Irfan and
Jakir. Imran and Mathu were attacked with knives and lathis, whereas Irfan and
Jakir suffered injuries as they tried to save them. Thereafter, presuming Imran
and Mathu to be dead, the accused fled from the place of incidence. The
Complainant further detailed that Jakir and Irfan came to his house and narrated
the entire incident to him. This formed the basis for the Complaint at Vikasnagar
Police Station and the said FIR was registered.
2.3. The investigating officer commenced the investigation, followed by a
chargesheet. The Trial Court thereafter framed charges for offences punishable
under Section 307 read with Section 34 of the IPC, against the Appellant and the
other accused. The Trial Court, evaluated the statements of the prosecution
witnesses, sought the medical opinion to be brought on record, analysed the
statement of the investigating officer, recorded the statements of the accused
under Section 313 of the CrPC, and decided to acquit the Appellant and his coaccused vide judgment dated 13.10.1995.
2.4. The State felt aggrieved and challenged the acquittal of the Appellant and
other accused before the High Court. The High Court, as already mentioned in the
2
opening paragraph, partially allowed the appeal, sentenced the Appellant and one
of his coaccused to rigorous imprisonment for seven years and confirmed the
acquittal of the other two accused.
2.5. We have heard Learned Counsel(s) for the parties at a considerable length
and perused the trial record with their able assistance.
CONTENTIONS OF PARTIES
3. Mr. Anuvrat Sharma, learned counsel representing the Appellant, while
assailing the reversal of acquittal, contended that the High Court has failed to
appreciate the evidence on record due to which it arrived at an erroneous finding.
Mr. Sharma impressed that the Complainant, Farzan, was not an eyewitness to
the alleged incident. He admittedly arrived at the scene only after being told about
it. Learned counsel highlighted the glaring contradictions between the account
provided in the FIR and the testimonies of the witnesses, as recorded by the Trial
Court.
4. Mr. Sharma argued that the Trial Court, on the other hand, had considered
the absence of discernible evidence to prove that the Appellant and another
accused were holding knives and had caused stab injuries. In the same vein, he
contended that the testimonies of the injured witnesses and medical experts,
combined with the inconsistencies in the Complainant’s account, have unfolded
significant gaps in the investigation conducted.
5. Per contra, Mr. Advitiya Awasthi, learned State Counsel urged that the
Appellant, along with the other accused, Bhola, voluntarily inflicted injuries upon
Mathu and Imran with a knife, with the intention to cause death. He asserted that
the injured witness Mathu, in his testimony, stated that at the time of the
incident, both, the Appellant and Bhola were armed with knives. This testimony,
3
he argued, aligned with the opinion of the medical expert, who had opined that
Mathu’s injuries had been caused by some sharp object.
6. The singular question that requires our deliberation is whether the material
on record unmistakably justifies the conviction of the Appellant under Section 307
of the IPC?
ANALYSIS
7. To begin with, it would be apposite to recount the settled proposition of law that a conviction under Section 307 of the IPC may be justified only if the accused in question possessed intent coupled with some overt act in aid of its execution. State of Maharashtra v. Balram Bama Patil, 1983 (2) SCC 28; Vasant Vithu Jadhav v. State of Maharashtra, AIR 2004 SC 2678.Ascertaining the intention to kill or having the knowledge that death may be caused as a result of the overt act, is a question of fact and hinges on the unique circumstances that each case may present. Though these fundamentals have been established in a plethora of decisions across several decades, we have briefly mentioned the same to ensure a lucid understanding of the rationale behind the instant decision.
8. Keeping these principles in mind, the intention of the Appellant in this
context may perhaps be ascertained through the material on record, consisting
the testimonies of the witnesses; medical opinion and the very first version of
events contained in the FIR itself.
9. Having analysed the evidence on record, we find that there are several gaps
in the prosecution story. We say so for the reasons that, firstly, the testimonies of
PW2 and PW3, Mathu and Imran, are inherently contradictory to the narrative of
the prosecution, insofar as the sequence of events and the roles attributed to the
accused persons are concerned. Mathu for instance, admitted during his cross
4
examination that he could not identify as to who among the accused persons
inflicted stab wounds and who used lathis.
10. Secondly, the other injured witness, namely Imran, had initially testified
that all the four accused persons were found standing near Gopal’s house, with
the Appellant and Bhola carrying knives and Manoj and Suresh holding lathis.
However, upon being crossexamined, he changed his position, claiming that
Bhola and the Appellant lashed them with lathis while the other two accused
arrived at the place of incidence from the direction of their house. Given the
incertitude in regards to the roles attributed to the accused persons, the
conviction of the Appellant or his coaccused by the High Court becomes all the
more questionable.
11. Thirdly, there seems to be consequential disparity in the oral evidence
adduced by witnesses; the medical reports and the opinions, in terms of the
nature of injuries suffered by Mathu and Imran. Specifically, it is undisputed that
the injuries suffered by the victims were not caused by lathis or a blunt weapon.
Similarly, the evidence regarding the placement and extent of knife injuries
sustained by Mathu and Imran does not inspire confidence. Hence, the questions
surrounding the use of lathis or knives have undermined the prosecution case,
just as they have cast doubt on the extent and nature of injuries sustained by the
injured witnesses.
12. Fourthly, and most importantly, what makes the circumstances entirely
murky is the fact that the FIR itself was lodged by a hearsay witness, namely, PWI
Farzan, who is Imran’s father. Notably, Farzan was not present at the scene and
only learned about the incident through alleged eyewitnesses Jakir and Irfan,
both of whom had accompanied Imran and Mathu when the latter were allegedly
5
attacked by the Appellant and other accused persons. Ironically, there is not even
a whisper about the alleged eyewitnesses, Jakir and Irfan joining the
investigation. These persons were apparently ghost witnesses who neither had
their statements recorded by the Investigating Officer under Section 161 of the
CrPC nor were they produced by the prosecution before the Trial Court. Similarly,
no attempt was made to record their version under Section 164, CrPC. The
discrepancies elucidated above could have been clarified with ease had these eyewitnesses been produced or their statements recorded, shedding light on the
sequence of events as they unfolded. The deafening absence of these two alleged
eyewitnesses, in our considered opinion, has considerably weakened the
prosecution case.
13. Usually in matters involving criminality, discrepancies are bound to be there
in the account given by a witness, especially when there is conspicuous disparity
between the date of the incident and the time of deposition. However, if the
discrepancies are such that they create serious doubt on the veracity of a witness,
then the Court may deduce and decline to rely on such evidence. This is especially
true when there are variations in the evidence tendered by prosecution witnesses
regarding the sequence of events as they have occurred. Courts must exercise all
the more care and conscientiousness when such oral evidence may lean towards
falsely implicating innocent persons.2
14. Undoubtedly, there are glaring interludes which severely enfeeble the case
that the prosecution sought to present. The prosecution story has been
demolished by the oral testimonies of the witnesses, including the medical
experts, coupled with the contents of the FIR registered by a hearsay witness. It
2 Andhra Pradesh v. Pullagummi Kasi Reddy Krishna Reddy, (2018) 7 SCC 623.
6
goes without saying that the chain of evidence proffered by the prosecution has to
be as complete as is humanly possible and it does not leave any reasonable
ground for a conclusion consistent with the innocence of the accused and must
instead, indicate that the act had indeed been singularly committed by the
accused only.3
15. To further fan the flames, there is no motive attributed to the Appellant or
his coaccused Bhola, in order to justify their conviction under Section 307 of the
IPC. Both the injured witnesses, Imran and Mathu, during their crossexamination, clearly explicated that there was no enmity or ill will between them
and the accused persons. It is not even the prosecution’s case that this was a
chance occurrence. It seems that the accused and the alleged victims were
familiar with each other and had some kind of association. There is thus more to
this than meets the eye, and we are not entirely convinced of the narrative
presented and perceived by the prosecution.
16. In our considered view, the High Court ought to have given due weightage to
the glaring inconsistencies, before reversing a wellreasoned order of acquittal. It
is a wellestablished canon of law that when the Trial Court has acquitted the
accused based on a plausible understanding of the evidence, and such finding is
not marred by perversity or due to overlooking or misreading of the evidence
presented by the prosecution, the High Court ought not to overturn such an order
of acquittal4
. We are inclined to hold that the Trial Court, after reviewing the entire
evidence on record, was correct in concluding that the totality of circumstances
casts doubt on the alleged incident and suggests that the prosecution witnesses
3 Hanumant v. State of Madhya Pradesh, (1952) SCR 1091; Ram Gopal v. State of Maharashtra,
AIR 1972 SC 656; Sharad Birdhi Chand Sarda v. State of Maharashtra, 1984 AIR 1622.
4Darshan Singh v. State of Punjab, (2010) 2 SCC 333; Ballu@Balram v. State of Madhya
Pradesh, Crl. Appeal No. 1167.2018.
may have concealed the actual story.
CONCLUSION AND DIRECTIONS
17. We, thus, find it quite unsafe to convict the Appellant on the basis of such
laconic evidence. Rather, we deem it appropriate to allow this appeal and acquit
the Appellant in FIR Case Crime No. 84/1994. Accordingly, the order of conviction
by the High Court dated 10.12.2009 is set aside, and that of the Trial Court dated
13.10.1995 is restored in so far as the Appellant is concerned. The bail bonds, if
any, furnished by the Appellant are hereby cancelled.
18. The present appeal is allowed in the above terms.
………..………………… J.
(SURYA KANT)
……………………………J.
(DIPANKAR DATTA)
……………………………J.
(UJJAL BHUYAN)
NEW DELHI
DATED : 31.07.2024
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