1999 Supreme(SC) 1395

1999(9) Supreme 545
SUPREME COURT OF INDIA
(From Allahabad High Court)
G.B. Pattanaik & M.B. Shah, JJ.
Padam Singh -Appellant
versus
State of U.P. -Respondent
Criminal Appeal No. 679 of 1997
Decided on 30-11-1999
Counsel for the Parties :
For the Appellant : U.N. Bachawat, Sr. Advocate, Sushil Kumar Jain, Ms. Madhurima Tatia, A. Mishra, Advocates.
For the Respondent : Anis Ahmad Khan, Advocate for A.S. Pundir, Advocate.

IMPORTANT POINT
In appeal against conviction, it is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion and the appellate Court like the trial Court has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt.

Headnote:(i) Code of Criminal Procedure, 1973 - Section 374(2) - Appeal from conviction-Duty and obligation of appellate Court-It is duty of appellate Court to look into evidence adduced in the case and arrive at an independent conclusion -Appellate Court like trial Court has to be satisfied affirmatively that prosecution case is substantially true and guilt of accused has been proved beyond all reasonable doubt -Presumption of innocence of accused continues until he is held guilty by final Court of appeal.

       Held : A bare reading of the Judgment of Justice Malviya would indicate that he has failed to discharge his duty and obligation as an appellate Court, in appreciating the evidence and coming to its conclusion one way or the other. It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate Court in drawing inference from proved and admitted facts. It must be remembered that the appellate Court like the trial Court has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final court of appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial Court. The judicial approach in dealing with the case where an accused is charged of murder under Section 302 has to be cautious, circumspect and careful and the High Court, therefore, has to consider the matter carefully and examine all relevant and material circumstances, before upholding conviction. (Para 2)

       (ii) Indian Penal Code, 1860-Sections 302, 307, 452, 148, 324 r/w Section 149-Conviction under-Sustainability of-Prosecution story of accused persons entering house of prosecution party and firing and counter firing by prosecution party-One from prosecution party died and two from accused party and a third unknown person died in incident-Unknown person s body found far away from alleged place of occurrence-Eye witnesses all relatives of prosecutions and inimical to accused-No independent witness-Admitted enmity between prosecution party and accused-Prosecution unable to explain how three persons of accused party died-Evidence of eyewitnesses unreliable-Place of occurrence not proved - Prosecution suppressed genesis and origin of occurrence and not presented true version-Accused entitled to benefit of doubt-Conviction set aside.

       Held : The prosecution evidence, excepting, indicating that Raghuraj was also firing, there is not an iota of material, indicating, how the three people belonging to the accused party died. It is too well settled that when the prosecution does not explain the injury sustained by the accused at about the time of the occurrence or in the course of occurrence, the Court can draw the inference that the prosecution has suppressed the genesis and origin of the occurrence and has thus, not presented the true version. It is also well settled, where the evidence consists of interested or inimical witnesses, then, non-explanation of the injury on the accused by the prosecution assumes greater importance. Adjudged from the aforesaid stand point and in the absence of any explanation as to how three of the people belonging to the accused party died, the testimonies of P.Ws. 1, 2, 3 and 4 become vulnerable and the accused is entitled to benefit of doubt. That the prosecution witnesses and accused persons are inimical to each other is apparent from the evidence of the four eye witnesses. It has also been elicited from the cross-examination of the eye-witnesses that while the accused persons were running away and the prosecution witnesses were chasing, there had been no assault by the prosecution party nor had there been any firing from them. If that be so and according to the medical evidence, the unknown male person died on receiving multiple gun shot ante-mortem injuries and he must have died in instantaneous death, then obviously, the fact that the dead body was found at a distance of four furlongs would establish that the prosecution case, as unfolded through the evidence of P.Ws. 1 to 4 is not true and the true version is not coming forward. On this ground alone, the accused is entitled to the benefit of being acquitted. Even, if we examine the intrinsic oath of the prosecution witnesses, who are admittedly inimical, the omissions and contradictions between the statement made under Section 161 and the statement made in Court, as brought out in the cross-examination, makes the witnesses unreliable and the two learned Judges, without noticing the same have just brushed aside on the ground that the omissions and contradictions are not material. The said conclusion in our opinion, cannot be sustained. After going through the cross-examination of the aforesaid witnesses, in our opinion, the witnesses do not stand the test of stricter scrutiny, they being admittedly inimical towards the accused persons. In this view of the matter, no reliance could have been placed on their testimony and as such the conviction of the appellant cannot be sustained. Further the fact that there had been firing at the place of occurrence, has not been established by the prosecution witnesses. The reading of the evidence of the Investigating Officer P.W. 5 gives an interesting picture when he states that blood stained soil and control soil had been taken from the place of occurrence and sealed separately but no witness to the seizure has been examined. According to him, on the way to Saragpur, though a dead body was found and Panchayatnama of the dead body was prepared, but no Panch had been examined. He further candidly admitted that the pellet marks which were found on the wall, were not shown in the site plan. In his cross-examination, he categorically stated that "I had not conducted any investigation as to who killed Munshi Singh, Lekh Raj and the unknown person". He also further admitted that he did not sign on the labels of the bundles, which were sealed. In the teeth of the aforesaid materials, brought out in the cross-examination of the Investigating Officer and in view of the fact that we have already held the interested witnesses to be unreliable and that the prosecution has offered no explanation, as to how three people belonging to the accused party died, it is difficult for us to sustain the conviction of the appellant. We, accordingly, set aside the impugned conviction and sentence of the appellant and acquit him of the charges levelled. (Paras 5, 6 & 7)