Tuesday, 17 May 2016

Whether prosecution case can be disbelieved on the ground that independent witness is not examined?

 As far as the non-examination of any other independent witness
is concerned, there is no doubt that the prosecution has not been
able to produce any independent witness. But, the prosecution case
cannot be doubted on this ground alone. In these days, civilized
people are generally insensitive to come forward to give any
statement in respect of any criminal offence. Unless it is inevitable,
people normally keep away from the Court as they feel it distressing
and stressful. Though this kind of human behaviour is indeed
unfortunate, but it is a normal phenomena. We cannot ignore this
handicap of the investigating agency in discharging their duty. We
cannot derail the entire case on the mere ground of absence of
independent witness as long as the evidence of the eyewitness,
though interested, is trustworthy.
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NOS. 1467-1468 OF 2005
SADHU SARAN SINGH … APPELLANT
VERSUS
STATE OF U.P. AND ORS. … RESPONDENTS
Dated;FEBRUARY 26, 2016
N.V. RAMANA, J.
Citation;(2016) 4 SCC357

1. These appeals are directed against the judgment passed by the
High Court of Judicature at Allahabad in Criminal Appeal Nos.2701
and 5802 of 2003, dated 07.12.2004, by which the High Court has
allowed the appeals filed by the accused- respondents herein and
acquitted them for the offences under Sections 147, 148, 149, 302,
307 and 504 of the Indian Penal Code, 1860 (for short ‘the IPC’).
2. It is pertinent to mention here that the appellant before us was
not a party before the Courts below and the present appeals have
been preferred by him with the leave of this Court. The locus of the
appellant is that he is the brother of the informant Bhola Singh (PW1)
who died during the pendency of the appeal before the High Court
and also paternal uncle of the three deceased persons (Sons of
informant Bhola Singh—PW1).
3. The facts in brief, as unfolded by the prosecution case are that
Bhola Singh (PW1)—the informant is a resident of village Kanso,
district Mau and on 4th October, 1994 at about 8 am when his sons
namely Sheo Kumar, Avdhesh and Yogendra (all three deceased)
were repairing the cattle trough in presence of one Ganga Singh,
brother-in-law of the informant and one Baijnath Singh (PW 2), the
accused Ramashraya Singh, Satyendra Singh, Brijendra Singh along
with their father Ramchandra Singh armed with deadly weapons
came to the Baithka of the informant-Bhola Singh with the company
of Kamla Singh and Ram Saran Singh hurling filthy abuses. While
Ramchandra Singh exhorted his sons to eliminate the whole family of
the victim, the accused Ramashraya Singh and Kamla Singh opened
fire with guns while Satyendra Singh and Brijendra Singh attacked
with katta upon the three sons of Bhola Singh (PW1). The other
accused also attacked the victim party with their respective weapons.
In the assault, the three sons of PW1 sustained injuries and fell on
the ground and Ganga Singh, brother-in-law of PW1 sustained
firearm injuries. During the ongoing tussle, PW1—Bhola Singh ran
into the village and raised hue and cry whereupon the assailants took
to their heels. The attack resulted into the death of two sons of the
informant i.e. Shivshankar and Avadhesh on the spot while another
son i.e. Yogendra breathed his last on the way to the hospital.
4. At the instance of the informant (PW1), a First Information
Report (Ext. Ka-1) was lodged at 9.15 a.m. on the same day at
Haldharpur P.S. wherein PW1 stated that the incident had taken
place on account of enmity over land dispute between the parties.
Constable Muharrir Ram Manohar Maurya (PW-3) prepared the chick
report (Ext. Ka-4) and registered the case as Crime No.219/94 under
Sections 147,148, 149, 302, 307 and 504 IPC. The injured Ganga
Singh was then sent for medical check up to the Primary Health
Centre.
5. Sub-Inspector Riyayatullah Khan, the Investigating Officer
visited the place of occurrence, held inquest of the dead bodies,
prepared site map and recorded the statement of the informant. He
then collected blood stained roll of clay and plain clay and prepared
memo. Dr. O.P.Singh (PW 6) who conducted medical examination of
the injured Ganga Singh opined in his report (Ext.Ka-33) that all the
injuries were caused by fire arms and were sustained within a period
of 6 hours.
6. Dr. Jitendra Kumar Singh (PW7) conducted post-mortem
examination on the bodies of the three deceased persons. By his
reports Ka-34, 35 and 36, he expressed the opinion that the incident
might have occurred at 8.00 a.m. and that the intestines of all the
three deceased contained semi-digested food material and the
injuries suffered by the victims were of firearms and there was no
blunt object injury. On 7-10-1994, the I.O. arrested Ramchandra
Singh and Ramsaran Singh and recorded statements of witnesses.
The I.O. filed charge sheet (Ext. Ka-32) against all the six accused
persons. Since the accused have denied the charges and prayed for
trial, the case was committed to the Court of sessions.
7. The prosecution, in support of its case, had examined two
eyewitnesses, namely, the informant Bhola Singh (PW1), father of all
the three deceased persons and Baijnath Singh (PW 2) and fivePage 5
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formal witnesses i.e. PW 6 Dr.O.P.Singh and P.W.7 Dr.Jitendra
Kumar Singh, PW 5 the Investigating Officer and PW 4 the SubInspector
and PW 3 Constable Ram Manohar Maurya, who prepared
the chick FIR and General Diary entry pertaining to registration of the
case. On the other hand, the accused have produced four witnesses
in their defence. During the pendency of trial, one accused, namely,
Ramchandra Singh died.
8. The Trial Court, after a full-fledged trial, came to the conclusion
that the accused were guilty of committing a cruel and heinous
offence and by its detailed judgment dated 22-05-2003 sentenced
Ram Saran Singh, Satyendra Singh and Brijendra Singh to undergo
life imprisonment for the offence under Section 302/149, IPC and
imposed fine of Rs.10,000/-. In default, they were directed to undergo
two years’ rigorous imprisonment. They were also convicted under
Section 307/149 IPC and sentenced to seven years’ rigorous
imprisonment and a fine of Rs.5,000/-. In default, to undergo one year
rigorous imprisonment. Conviction under Section 148 IPC was also
recorded against these appellants. They were sentenced to two
years’ rigorous imprisonment and a fine of Rs.1,000/-. In default, six
months’ rigorous imprisonment was imposed on them. DeathPage 6
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Sentence was imposed upon Ramashraya Singh and Kamla Singh
under Section 302/149 IPC with a fine of Rs.10,000/-. In default, the
appellants were directed to undergo two years’ rigorous
imprisonment. They were also convicted under Section 307/149 IPC
and were sentenced to 7 years’ rigorous imprisonment and a fine of
Rs.5,000/-. In default, to undergo rigorous imprisonment for one year.
Conviction under Section 148 IPC was also recorded against these
appellants. They were sentenced to two years’ rigorous imprisonment
and a fine of Rs.1,000/-. In default of payment of fine, six months’
rigorous imprisonment was imposed.
9. Aggrieved thereby, all the five accused persons preferred
criminal appeals before the High Court. The High Court recorded
complete disagreement with the findings given by the Sessions Judge
and allowed the appeals of the accused by setting aside the judgment
of the trial Court and acquitted them of the charges and also rejected
the Reference for confirmation of death sentence of the accused
Ramashraya Singh and Kamala Singh. Dissatisfied with the order of
acquittal passed by the High Court, the brother of the deceased
informant filed the present appeals by way of special leave. Page 7
7
10. We have heard Shri Viswajit Singh, learned counsel for the
appellant and Shri Ranjit Rao, learned Additional Advocate General
for the State and Shri Pramod Swarup, learned senior counsel for the
accused—private respondents herein.
11. Shri Vishwajit Singh, learned counsel for the appellant
vehemently contended that the High Court committed a manifest and
grave error in analyzing the evidences of PW1 and PW2 and
acquitted the accused without proper application of mind. It ought not
to have rejected the ocular evidence of the informant PW 1 Bhola
Singh, the ultimate victim and father of the three deceased persons.
The finding of the High Court that PW1 was not present on the spot is
untenable and treating his evidence as unreliable, is totally perverse
and bad in law in view of the true nature and circumstances of the
case. A prudent analysis of evidence of PW-1 would clearly suggest
that there are no discrepancies in his evidence and rather it
abundantly makes clear that he is a wholly reliable witness and his
evidence is trustworthy.
12. Similarly, the view expressed by the High Court that the
presence of PW 2–Baijnath Singh at the scene of occurrence is
doubtful and it is an afterthought, cannot be sustained as perusal ofPage 8
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FIR lodged by PW-1 Bhola Singh unequivocally shows that the name
of PW-2 Baijanth Singh was referred in the FIR and his presence at
the place of occurrence was established beyond any reasonable
doubt. Moreover, nothing has been elicited in his examination-in-chief
or cross-examination mounting a doubt on the veracity of his
statement. Moreover, the witness has been consistent in his
statement fully supporting the prosecution story.
13. Lamenting on the view taken by the High Court in disregarding
the abduction of Ganga Singh, the injured witness, learned counsel
explained that Ganga Singh could not be produced in the witness box
by the prosecution for the reason that he was kidnapped by the
accused persons after being threatened and beaten up by them. In
this regard, two FIRs, i.e. one on 6.10.1997 and before that another
on 12.9.1997 were also lodged which would show that Ganga Singh
was purposely kidnapped during the period when the evidence of the
witnesses were going on and the High Court has wrongly mentioned
that a photocopy of the final report would show that the allegation of
kidnapping was fabricated and although no such document was
either exhibited before the Trial Court or before the High Court.
According to him, the timing of the aforesaid kidnapping andPage 9
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threatening also coincided with the fact that the statement of PW-1
Bhola Singh was completed on 24.7.1997 and the statement of PW-2
Baijnath Singh was completed on 13.11.1997. Regarding the minor
inconsistency between medical and ocular evidence, it is argued that
it cannot derail the case of the prosecution as the inconsistency is not
of an extreme nature and weightage has to be given to the evidence
of eyewitness as per settled law. Merely for the reason that no blunt
injuries were found on the bodies, even when the complainant had
alleged, is of no consequence.
14. Negating the finding of the High Court as to the place of
occurrence, learned counsel submitted that the High Court did not
consider the case in its proper perspective. A perusal of entire
evidence on record would clearly establish the place of occurrence
and that the prosecution has succeeded in proving the guilt beyond
all reasonable doubt. The evidence on record clearly reveals that the
Investigating Officer had recovered the blood stained roll of the clay
and the plain clay from the place of incident, which was sent for
examination wherein on analysis, human blood was found on the
same. Even the evidence of eyewitnesses PW-1 Bhola Singh and
PW-2 Baijnath Singh is very much consistent on the said aspect and,Page 10
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therefore, the High Court was wrong to raise a dispute on the place of
occurrence. Contending further on the doubt raised by the High Court
on the timing of incident, learned counsel submitted that the High
Court has laid a lot of emphasis on the presence of semi-digested
food in the medical report and has held that it totally contradicts the
case of prosecution with regard to the time of occurrence of the
offence, whereas the doctors (PWs 6 & 7) in their examination-inchief
have clearly stated that the incident might have taken place at
8 a.m. Thus the High Court erred in recording a finding contrary to the
evidence, particularly for the reason that in villages generally people
wake up early in the morning and start work early after having
breakfast and, therefore, presence of half-digested food cannot be a
probable ground to arrive at a conclusion that the deceased must
have died at night. Learned counsel finally submitted that for all the
aforesaid reasons, the High Court ought not to have interfered with
the well-reasoned judgment of the trial Court. In support of his
submissions, learned counsel placed reliance on various authorities
of this Court.
15. The learned counsel for the State supported the contentions of
the appellant and conceded that the High Court erred in acquitting thePage 11
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respondents-accused ignoring certain relevant circumstances and
material evidence which clearly established the guilt of the accused.
According to him, the High Court has utterly failed to consider the
genuine facts that the FIR was lodged at 9.15 a.m. immediately after
the incident without any unreasoned delay, evidence of both the
eyewitnesses i.e. PW-1 AND PW-2 were reliable as their statements
were completely corroborated by the medical evidence; the injured
Ganga Singh though could not be examined by the prosecution but
had been medically examined by PW-6 on the same day
corroborating the prosecution’s story and the motive of the accused
to commit the crime was established as they were having enmity with
the victim party in respect of a land dispute. Learned counsel,
therefore, prayed that considering the abundant and cogent evidence
available on record, this Court should exercise its powers under
Article 136 of the Constitution of India and set aside the impugned
judgment and order by convicting the accused.
16. Per contra, learned counsel appearing for the accused
respondents submitted that the prosecution case is unreliable for the
reasons that the place of occurrence and lodging of FIR is very much
disputed, there is difference between the medical and oral evidencePage 12
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of the witnesses, the so called injured witness Ganga Singh despite
being a relative of the informant, has not been examined before the
Court and the presence of semi-digested food in the stomach of the
deceased suggests that the incident could have occurred between
2.00 to 4.00 a.m. totally controverting the stand taken by the
prosecution. The High Court has prudently appreciated these facts
and rightly held that the investigation department was hand in glove
with the complainant who wanted to implicate the accused in the
alleged crime. The alleged FIRs purporting to establish kidnapping
story of Ganga Singh cannot be of any consequence as the same
were concocted and was rightly disregarded by the High Court.
Moreover, from the statements of PW-1 Bhola Singh and PW-2
Baijnath Singh, it cannot be inferred that they were actually present at
the scene of offence at the time of occurrence of the incident since
their evidence does not support the same. Disputing the scene of
occurrence, learned counsel contended that as per prosecution
version, all the three deceased were laying clay on the nand but
PW-4 Riyatullah Khan, who has prepared the panchnama had not
found any clay on the dead-bodies of the deceased nor in the postmortem
no clay was found by PW-7 Dr. Jitendra Kumar. AnotherPage 13
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clinching factor in this regard is that the place of firing as shown in the
sketch map prepared by the I.O. is contradictory to the place referred
by PW-1 and P.W.2. in their statements. The motive factor also stood
not proved beyond reasonable doubt, considering the statement of
PW1 who had categorically stated in his evidence that there was no
dispute with regard to haudi and the land abutted to that.
17. Learned counsel further contended that General Diary of the
case has been prepared on the plain paper, contrary to the provisions
of the Police Regulation Act. Apart from this, entry of sending the
case diary to the Superintendent of Police has not been made in the
G.D., whereas under para 295(16) of the Police Regulation Act, it was
necessary that the documents which are received in the G.D. in the
police station, are sent to the police station after making entries; thus
the IO has not complied with the provisions of para 107 of the Police
Regulation Act and due to this reason, the investigation is vitiated.
Learned counsel for the accused therefore strenuously urged
that there is no error in the acquittal order passed by the High Court
which does not call for any interference by this Court.
18. Generally, an appeal against acquittal has always been
altogether on a different pedestal from that of an appeal againstPage 14
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conviction. In an appeal against acquittal where the presumption of
innocence in favour of the accused is reinforced, the appellate Court
would interfere with the order of acquittal only when there is
perversity of fact and law. However, we believe that the paramount
consideration of the Court is to do substantial justice and avoid
miscarriage of justice which can arise by acquitting the accused who
is guilty of an offence. A miscarriage of justice that may occur by the
acquittal of the guilty is no less than from the conviction of an
innocent. This Court, while enunciating the principles with regard to
the scope of powers of the appellate Court in an appeal against
acquittal, in the case of Sambasivan and Others V. State of Kerala,
(1998) 5 SCC 412, has held :
“The principles with regard to the scope of the powers of
the appellate Court in an appeal against acquittal are well
settled. The powers of the appellate Court in an
appeal against acquittal are no less than in an appeal
against conviction. But where on the basis of evidence
on record two views are reasonably possible the appellate
Court cannot substitute its view in the place of that of the
trial Court. It is only when the approach of the trial Court
in acquitting an accused is found to be clearly erroneous
in its consideration of evidence on record and in deducing
conclusions therefrom that the appellate Court can
interfere with the order of acquittal”.Page 15
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19. This Court, in several cases, has taken the consistent view that
the appellate Court, while dealing with an appeal against acquittal,
has no absolute restriction in law to review and relook the entire
evidence on which the order of acquittal is founded. If the appellate
Court, on scrutiny, finds that the decision of the Court below is based
on erroneous views and against settled position of law, then the
interference of the appellate Court with such an order is imperative.
20. This Court in Chandrappa V. State of Karnataka, (2007) 4
SCC 415, after referring to a catena of decisions, has laid down the
following general principles with regard to powers of the appellate
Court while dealing with an appeal against an order of acquittal:
“42. From the above decisions, in our considered view,
the following general principles regarding powers of the
appellate Court while dealing with an appeal against an
order of acquittal emerge :
(1)An appellate Court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded.
(2)The Code of Criminal Procedure, 1973 puts no
limitation, restriction or condition on exercise of such
power an appellate Court on the evidence before it
may reach its own conclusion, both on questions of
fact and of law.Page 16
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(3)Various expressions, such as, ‘substantial and
compelling reasons’, ‘good and sufficient grounds’,
‘very strong circumstances’, ‘distorted conclusions’,
‘glaring mistakes’, etc. are not intended to curtail
extensive powers of an appellate Court in an appeal
against acquittal. Such phraseologies are more in the
nature of ‘flourishes of language’ to emphasise the
reluctance of an appellate Court to interfere with
acquittal than to curtail the power of the Court to
review the evidence and to come to its own conclusion.
(4)An appellate Court, however, must bear in mind that in
case of acquittal, there is double presumption in favour
of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by
a competent Court of law. Secondly, the accused
having secured his acquittal, the presumption of his
innocence is further reinforced, reaffirmed and
strengthened by the trial Court.
(5)If two reasonable conclusions are possible on the
basis of the evidence on record, the appellate Court
should not disturb the finding of acquittal recorded by
the trial Court.”
21. Reason is the heartbeat of every conclusion, without proper
reason the conclusion becomes lifeless. Having carefully considered
the impugned judgment and order passed by the High Court as also
that of the Trial Court and after perusing the records and giving
anxious consideration to the facts of the case on hand in the light ofPage 17
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well-settled law, in our considered opinion the judgment of the High
Court deserves to be set aside on the ground of lack of reasoning
and for the following compelling and substantial reasons:
i) The High Court had taken a view that PW 1 – Bhola Singh,
father of the deceased (brother of the appellant before us) had
changed his version at the time of second Chief Examination. Upon
giving our anxious consideration to the chronology of events, we find
that after commencement of the trial, the evidence of PW1 was
started on 9.8.1996 and the chief-examination was concluded on
21.8.1996. On 9.1.1997 the cross-examination was started and
further on 29.5.1997 the second Examination-in-chief was started as
some of the accused had surrendered before the Court in the
meanwhile. Second time Examination-in-chief was conducted on
29.5.1997 and ended up on 19.06.1997. Second Cross-examination
started on 17.07.1997 which was further conducted on 24.7.1997. As
seen from the various dates, the record indicates that the first chiefexamination
of PW 1, which started on 09.08.1996, was concluded
after completing the second cross-examination on 24.7.1997. So, it
is clear from the evidence of PW 1 itself that the examination and
cross-examination had taken place several times in a piece-mealPage 18
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manner and the Court was forced to conduct the chief-examination
repeatedly because of the subsequent surrender of some of the
accused persons. While appreciating the evidence of PW1, the
Courts must be conscious of the length of time consumed in
recording the evidence of the prosecution witness. From a perusal of
the evidence of PW1, the High Court was of the opinion that there
were discrepancies and deviations in the evidence of PW1. In our
considered opinion, the evidence of PW 1, who is an eyewitness who
lost three sons in the fateful incident was consistent and there are no
major deviations or discrepancies and if at all any minor
discrepancies that occurred in the evidence of PW1 might have been
due to the long gap between the date of incident and the long delay in
examination, more so, those discrepancies are not material in
bringing home the guilt of the accused, we find no reason whatsoever
to disbelieve his evidence. The statements of PW 1 are fairly
corroborated by the statements of PW 2. Hence, we are of the
considered opinion that the occurrence had taken place in front of
Baithaka of PW1—Bhola Singh and he had witnessed the said
occurrence along with PW-2 Baijnath and the injured Ganga Singh. Page 19
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ii) Similarly, we find no reason whatsoever to disbelieve the
evidence of PW2 (brother-in-law of PW1 Bhola Singh), another key
eyewitness present at the time of incident. A valiant attempt is also
made by the defence to discredit his evidence that he is only a
chance witness and not an eyewitness to the incident and his
presence is doubtful. But, nothing has come out in his examination-inchief
or in cross-examination which creates a doubt on the veracity of
his statement. Moreover, he has been consistent in his version and
fully supported the prosecution story. However, his admission that at
the time of panchnama, he has signed as suggested by the Darogaji
and PW1 asked him as to whose names should be written and whose
names should be left out in the panchnama, have to be seen in the
context of preparing the panchnama and shall not be attributed
otherwise to disbelieve his evidence.
iii) We are of the view that the High Court, for acquitting the
respondents, had mainly relied upon the medical evidence in a very
inappropriate manner. When the doctor (PW 7) in his examination-inchief
had categorically stated that the incident could have occurred at
8.00 a.m. which corroborated the case of the informant, there was no
reason to disbelieve this fact to hold that the incident occurredPage 20
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between 2.00 to 4.00 a.m. merely basing on a vague statement made
by the Doctor in the cross-examination. Also we believe that merely
for the reason that no blunt injuries were present on the deceased,
the whole evidence of PW 1 cannot be discarded as primacy has to
be given to the ocular evidence particularly in the case of minor
discrepancies. This Court in Darbara Singh Vs. State of Punjab,
(2012) 10 SCC 476, wherein this Court has held :
“…. So far as the question of inconsistency between the
medical evidence and the ocular evidence is concerned,
the law is well settled that, unless the oral evidence
available is totally irreconcilable with the medical
evidence, the oral evidence would have primacy. In the
event of contradictions between medical and ocular
evidence, the ocular testimony of a witness will have
greater evidentiary value vis-à-vis medical evidence
and when medical evidence makes the oral testimony
improbable, the same becomes a relevant factor in the
process of evaluation of such evidence. It is only when
the contradiction between the two is so extreme that
the medical evidence completely rules out all
possibilities of the ocular evidence being true at all,
that the ocular evidence is liable to be disbelieved.”
iv) We are also of the opinion that the place of occurrence is
proved beyond doubt in the light of evidences of PW 1 (Bhola Singh),
PW 2 (Baijnath), PW 3 (Constable Ram Manohar Maurya) and PW 4
(Riyayatullah Khan—Sub Inspector). Apart from this, the investigating
officer had recovered blood stained roll of the clay and plain clay fromPage 21
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the place of incident (Ext.Ka-8) and also had recovered cartridges
from the place of the incident. Even as per the forensic report human
blood was found on the roll of clay (Ext.Ka-37). The aforesaid
circumstance would clearly establish that the place of incident was
the baithka of the informant and not the village pakvainar as alleged
by the defence.
v) Coming to the issue of non-examination of the injured witness
Ganga Singh, it is relevant to point out that the trial Court had
appreciated the fact that though the prosecution had made an
attempt to produce Ganga Singh, they failed to do so as he was
kidnapped at the relevant period. This stands proved by the
registration of two FIRs dated 12.09.1997 and 06.10.1997 which
establish the fact that Ganga Singh was threatened and kidnapped.
Therefore, non-examination of injured Ganga Singh could not be fatal
to the case of the prosecution and the same cannot be a ground to
disregard the evidence of PWs 1 & 2. Thus, no adverse inference can
be drawn against the prosecution for not examining Ganga Singh, the
injured witness [Also see : Rajan Rai v. State of Bihar, 2006(1)
SCC 191].Page 22
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vi) As far as the non-examination of any other independent witness
is concerned, there is no doubt that the prosecution has not been
able to produce any independent witness. But, the prosecution case
cannot be doubted on this ground alone. In these days, civilized
people are generally insensitive to come forward to give any
statement in respect of any criminal offence. Unless it is inevitable,
people normally keep away from the Court as they feel it distressing
and stressful. Though this kind of human behaviour is indeed
unfortunate, but it is a normal phenomena. We cannot ignore this
handicap of the investigating agency in discharging their duty. We
cannot derail the entire case on the mere ground of absence of
independent witness as long as the evidence of the eyewitness,
though interested, is trustworthy.
vii) It has been vehemently argued by the accused/respondents
that the prosecution has failed to establish any motive for the alleged
incident. However, the complainant had deposed about existence of
land dispute between the parties and regarding the same complaints
were made prior to the incident also. The Trial Court had held that
there was land dispute between the parties and for the same the
complainant had made complaints to the police (Ext. Ka-2 and Ka-3).
We concur with the view of the Trial Court that the accused—
respondents had enmity with the complainant party over a land
dispute and that Ext.Ka-2 and Ka-3, the complaints made prior to the
incident, could not be an after-thought as both the exhibits bear
signature and dates on which these were received by the police.
Thus, in the light of above discussion, it can be safely held that the
accused respondents had strong motive to commit the offence
against the complainant party.
viii) The High Court, while passing the impugned judgment and
order, has failed to consider that the two respondents-accused
Ramashray Singh and Kamla Singh had not succeeded in proving
their plea of alibi. It is evident from the letter of Ministry of Defence
addressed to the District & Sessions Judge, Mau (Doc.263 Ka.)
where it has been specifically mentioned that the accused
Ramashray Singh and one Virender Singh (DW-1) had been directed
to proceed to Secunderabad from Pathankot on 4.9.1994. It is
mentioned that on 6.10.1994 said Virender Singh had deposited the
fused missile and Ramashray Singh accused respondent was not
present on the said date and he presented himself at Secunderabad
on 11.10.1994. As far as accused Kamla Singh is concerned, he had
taken a plea of alibi stating that he was posted as a Hawaldar in
Jammu. However, he has failed to mark any evidence in this behalf.
Also it was stated by him that he was present at his quarter in
Jammu. However, DW-4 Onkar Singh has stated that he, along with
the accused Kamla Singh, had gone to Vaishno Devi but fails to
prove the same by adducing cogent evidence. Thus, on perusal of
the material on record, we concur with the finding of the trial Court
that the accused have failed to establish their plea of alibi.
ix) We are also of the considered opinion that the reasons given by
the High Court to reverse the conviction and sentence of the accused
are flimsy, untenable and bordering on perverse appreciation of
evidence.
x) The trial Court has awarded death sentence to Ramashraya
Singh and Kamla Singh. On this issue, we are not able to concur with
the view taken by the trial Court as the reasoning of the trial Court
does not convince us that this is the rarest of the rare cases which
warrants the penalty of death sentence.
22. For the aforesaid reasons, we reach to the irresistible
conclusion that these appeals deserve to be allowed and the
impugned judgment and order has to be set aside. Accordingly, we
allow these appeals by setting aside the impugned judgment and
order passed by the High Court and modify the judgment and order
passed by the Trial Court by convicting all the accused respondents
to life imprisonment under Section 302/149 IPC with a fine of
Rs.10,000/-. In default, they are directed to undergo rigorous
imprisonment for six months. They are also convicted under Section
307/149 IPC and sentenced to seven years’ rigorous imprisonment
and a fine of Rs.5,000/-. In default, they shall undergo rigorous
imprisonment for three months. Conviction under Section 148 IPC is
also recorded against the accused respondents and they are
sentenced to two years’ rigorous imprisonment and a fine of
Rs.1,000/-. In default, they have to undergo three months’ rigorous
imprisonment. All the sentences shall run concurrently.
.…………………J.
(DIPAK MISRA)
…………………J.
 (N.V. RAMANA)
NEW DELHI,
FEBRUARY 26, 2016
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