1996 Supreme(SC) 622

1996(3) Supreme 108
SUPREME COURT OF INDIA
M.K. Mukherjee and G.B. Pattanaik, JJ.
Betal Singh -Appellant
versus
State of M.P. -Respondent
Criminal Appeal No. 745 of 1985
Decided on 19-3-1996

IMPORTANT POINT
In an appeal against acquittal when the view taken by the Trial Court in                                     acquitting the accused is palpably wrong, the ultimate order of acquittal is vitiated and the High Court is empowered to alter the order of acquittal to order of conviction.

Headnote:(i) Appeal Against Acquittal-Powers of High Court-When credibility of evidence depends upon factors other than demeanour of witnesses-Appellate Court is free to come to its own conclusions as to credibility-High Court should also consider reasons advanced by Trial Court before altering order of acquittal to order of conviction.

       Held : It is well settled that the High Court s power in disposing of appeals from conviction or acquittal are essentially the same. It is equally well settled that where the credibility of the evidence depends upon factors other than the demeanour of witnesses, the appellate Court is free to come to its own conclusions as to the credibility. But at the same time if the view taken by the Trial Court in acquitting the accused is not palpably wrong there would be no occasion for reversal of the order of acquittal. Further the High Court should also consider the reasons advanced by the Trial Court before altering the order of acquittal to order of conviction. (Para 7)

       (ii) Indian Penal Code, 1860-Section 302-Offence under-Prosecution case that appellant fired at deceased Head Constable as deposed by PW 1-Defence case of accidental firing while there was a scuffle between appellant and PW1-Trial Court held that defence case appeared to be correct finding that police caused suspicion in respect of certain circumstances-Reasons acquitting appellant not based on materials on record are unsustainable -Medical evidence corroborated PW1-Course of movement of bullet inside dead body belies defence theory of scuffle-FIR lodged promptly described basic prosecution case-Evidence of PW1 unimpeachable-No infirmity in judgment of High Court convicting appellant for the offence.

       Held that the controversy centres around a very narrow compass namely whether the appellant fired at the deceased Head Constable as deposed by PW. 1 or it was a case of accident as suggested by defence while there was a scuffle between the appellant and PW. 1. The learned Trial Judge appears to have focussed his attention to several irrelevant factors which occurred in the course of investigation instead of focussing its attention to find out the narrow controversy as stated ealier. In this context the finding of the Trial Judge that the entry No. 401 appears to be suspicious and the further finding that there has been exaggeration to the occurrence is absolutely of no significance. Then again learned Trial Judge committed serious error in impeaching the evidence of Prem Singh, PW. 1 by examining the same with reference to 161 statement of PW. 5 and PW. 10 which is hit by Section 162 of the Code of Criminal Procedure. The learned Trial Judge also committed an error in recording a finding that either Betal Singh was not present at the time of discussion to give another date before the Head Constable Rajendra Singh or he had left towards the Bus not on the basis of evidence of PW. 1 but on the basis of the statement recorded by police under Section 161 of the Code of Criminal Procedure of PW. 5 and PW. 10. The dying declaration said to have been made by deceased to PW. 1 have been discarded by the Trial Judge and also affirmed by the High Court and in our view rightly. But the Trial Judge again committed an error in appreciating the medical evidence and even while analysing the evidence of Prem Singh, PW. 1 in the context of narrow compass as to whether appellant Betal Singh fired the gun which hit the deceased or it was a case of accidental firing in the course of scuffle between the appellant and PW. 1. The Trial Court has looked into insignificant particulars and failed to notice the basic prosecution case. The ultimate conclusion that the defence of the accused appears to be correct and true is not on the basis of any materials on record but because of the finding that the police had caused suspicion in respect of certain circumstances which resulted in exaggeration of the prosecution case. On examining the grounds advanced by the learned Trial Judge to discard the prosecution case so far as it relates to the question whether Betal Singh fired the gun at the deceased Head Constable we have no hesitation to come to the conclusion that the reasons are wholly unsustainable and the ultimate order of acquittal is vitiated.(Para 7)

       Further held : The High Court has broadly held that PW. 1 had no axe to grind against the accused appellant and he narrated the main incident of shooting by Betal Singh. The High Court has rightly held that non mentioning of the detailed particulars in the FIR cannot create any doubt and the basic prosecution case remains the same in the trial as was mentioned in the FIR. On analysis of evidence of PW. 1 and the doctor PW. 8 the High Court also has come to the conclusion that the medical evidence corroborated the evidence of PW. 1 so far as the manner in which the incident occurred. The High Court also examined Ex. P-7 which indicates the course of movement of bullet inside the dead body of deceased Head Constable and rightly came to the conclusion that the said diagram completely belies the defence theory of scuffle between the appellant Betal Singh and witness PW. 1 and in the course of scuffle accidently the gun was fired and on the other hand it proves the prosecution case that Betal Singh fired at the deceased while the deceased was sitting on the cot. The High Court rightly came to the conclusion that the evidence of PW. 1 cannot be impeached with reference to the statement of PWs 5 and 10 recorded under Section 161 Cr.P.C. The High Court also rightly observed that even if the FIR was not immediately sent to the Court of the Magistrate, but it is of no consequence, since the F.I.R. had been lodged within 30 minutes of the occurrence and the said F.I.R. clearly described the basic prosecution case. The High Court has then analysed the evidence of PW. 1 and has held the same to be unimpeachable and established the charge against appellant Betal Singh. We find no infirmity with the judgment of the High Court. We have also ourselves scrutinised the evidence of PW. 1 and, in our view, the same evidence can be safely relied upon in establishing the charge against the appellant notwithstanding some minor inconsistency in the evidence here and there. (Para 8)