2002 Supreme(SC) 1052

2002(7) Supreme 348
SUPREME COURT OF INDIA
(From Allahabad High Court)
Shivaraj V. Patil & Arun Kumar, JJ.
State of U.P. -Appellant
versus
Man Singh & Ors. -Respondents
Criminal Appeal Nos. 65-66 of 1995
Decided on 24-10-2002
Counsel for the Parties :
For the Appellant : Praveen Swarup, Prashant Chaudhary and Pramod Swarup, Advocates.
For the Respondents : Uma Datta, Advocate.

IMPORTANT POINT
The factor which prevailed with High Court in acquitting the accused persons viz. doubt about eye witnesses actually having seen the incident due to fog at time of occurrence (about 7 A.M. of 6th January, 1978) was totally extraneous, being based on conjectures in the facts and circumstances of the case. Acquittal is liable to be set aside.

Headnote:Criminal Trial-Murder case-Seven persons murdering one-Eye witnesses following deceased at same distance from deceased-Whether could have seen what had actually happened-Trial Court holding "Yes"-But High Court holding "doubtful" due to plea of accused persons that there was "fog at the time of occurrence (early in the morning" of winter) raised for first time before High Court-Acquittal-Whether based on relevant factor duly proved in trial? (No)-Result-Acquittal reversed (I.P.C. 1860-Sections 148, 302/149 and 201-Offences under-Evidence Act, 1872-Appreciation of Evidence of eye witnesses).

       Held : In our view, this factor which seems to have prevailed with the High Court in acquitting the accused persons was totally extraneous, being based on conjectures. It is rather contrary to the evidence on record. Therefore, in our view, the decision of the High Court cannot be sustained. The theory of fog was introduced before the High Court for the first time. It is not based on any evidence. In any case the said theory could not be introduced because the presence of fog leading to the vision of the eye-witnesses being blurred was never put to the eye-witnesses. The eye-witnesses were never asked in the cross-examination as to whether there was fog at the time of the incident, and if so, did it obstruct the eye-witnesses from watching the occurrence. When this aspect was never put to the witnesses, it cannot be said on the basis of mere imagination that the vision of the witnesses was obstructed by fog and they could not have seen the occurrence. The High Court completely erred in accepting this and doubting the version of eye-witnesses for this reason alone. The basic fact about the presence of fog leading to blurring the vision of the eye-witnesses without being put to witness during their cross-examination could not have been taken into consideration. It was the witnesses who were in best position to say whether there was fog at the relevant time or not and whether the fog, if present, was enough to prevent the eye-witnesses from watching the scene of occurrence. The High Court was not justified in basing its decision on the theory of presence of fog. On the other hand it is to be seen that both the eye witnesses gave detailed account of the incident. There is hardly any discrepancy in the version of the incident given by the two witnesses. Without actually witnessing the incident the witnesses could not have given such details of the occurrence, in our view the eye witness account of the occurrence inspires confidence and there is no reason to cast any doubt on the same. It is a case of brutal murder of a person by a gang of seven persons. The details of the murder available on record in the shape of eye witness account of the incident, medical evidence, mutilated body of the accused with neck and head severed, leave no doubt about the involvement of the accused-respondents in the crime. (Para 11)

       Held further : The High Court failed to appreciate that the dead body of Raja Ram was taken out from the river by Daya Ram, Kishan Lal and Dev Dutt almost immediately after the accused persons had left the scene after throwing the dead body into the river. The immediate recovery of the dead body by these persons completely establishes their presence at the scene of occurrence and the fact that they had witnessed the entire incident. When the dead body was immersed in water and was lying in the river bed, it would have been impossible to take it out immediately unless the persons who took out the dead body had seen the dead body being thrown into the river. The instantaneous recovery of the dead body of Raja Ram from the river by the eye-witnesses, including Dev Dutt shows that they had seen the spot where the dead body had been thrown into the river and for that reasons alone, they could have it out, otherwise locating the dead body in the river bed would have been quite an effort and time consuming. This aspect completely establishes the presence of the eye-witnesses on the scene of occurrence and the fact that they had seen the occurrence. (Para 12)

       Held in addition : Another important fact to be kept in view is that the accused persons were seven in number and they were all armed with guns and pistols whereas the three viz., Daya Ram, Kishan Lal and Dev Dutt, belonging to the victims party, were totally unarmed. This was the reason that they had to conceal themselves and they could not come out in the open before the accused persons in order to make any effort to save the deceased. Coming out in the open would have been fatal. The conduct of these three was quite natural. Normally nobody would venture or have the courage to go near the accused persons who were armed with fire-arms and who were firing gun shots at their target. If any one would have tried, he would have met the same fate. They must have been anxious to take the dead body of the deceased with them and for that reason they hid themselves in the Arhar fields and remained there till the accused left the place of occurrence to take out the dead body. The trial Court after closely examining the evidence of Daya Ram (PW 1) and Kishan Lal (PW 2) noted that both were consistent in their version of the occurrence and there was no material discrepancy in their statements. It found that there was no material evidence of the two eye-witnesses was genuine. (Para 13)

       Held finally : For all these reasons we are unable to sustain the judgment of the High Court which is under appeal. Accordingly the same is set aside. The judgment of the trial Court is upheld. We uphold the conviction of the accused persons and the sentence imposed on them by the trial Court. We are informed that out of the six accused persons, two died during the pendency of appeal before the High Court, the remaining accused persons be taken in custody to undergo the sentence as awarded by the trial Court. The appeals are allowed accordingly. (Paras 14 and 15)