2002 Supreme(SC) 1219

2003(1) Supreme 386
SUPREME COURT OF INDIA
(From Punjab and Haryana High Court)
N. Santosh Hegde, Shivaraj V. Patil & B.P. Singh, JJ.
Bhim Singh -Appellant
versus
State of Haryana  -Respondent
Criminal Appeal No. 78 of 1996
With
(Criminal Appeal No. 79/1996)
Decided on 11-12-2002
Counsel for the Parties :
For the Appellant : Sushil Kumar, Sr. Advocate, J.K. Das, Sanjay Jain, Adolf Mathew, Advocates.
For the Respondent : Aditya Kumar Chaudhary and Ranbir Singh Yadav, Advocates.

IMPORTANT POINT
In an appeal against acquittal, appellate Court should not disturb acquittal unless the appellate Court comes to the conclusion that the view taken by the trial Court is perverse or is not based on record.

Headnote:Indian Penal Code, 1860-Sections 302/34-Arms Act-Sections 25 and 27-Four persons charged for murder of Hari Om by gunshot with whom Accused 1 (Kanwar Singh) had dispute-Murder seen by two young women PW 3 and 7 who were accompanying deceased as chance witness going to Police Station-Appellant who was accused No. 4 was an army man-Trial Court acquitted all-Disbelieved testimony of PW 3 and 7-Doubt about time of occurrence and possibility of appellant being absent-Recovery of Gun of appellant was not duly proved-Discrepancy in manner of attack and unusual behaviour of prosecution case was pointed out-But High Court in appeal, upheld the acquittal of Accused 2 and 3 on same evidence but recorded conviction of appellant, taking different view of same evidence-Appeal to Supreme Court-Whether High Court was right in its approach? (No)-Motive not clear-Time of incident doubtful-Eye witnesses are chance witnesses-Recovery not established-Appeal allowed-Caution regarding appeal against acquittal stressed.

       Held : We will now consider the case on the merits of the prosecution case as presented before the courts below. We notice that the appellant was gainfully employed with the CRPF and was visiting the village to see his ailing sister en route to his place of transfer in Tripura. There is no dispute in regard to this fact. There is also no dispute in regard to the fact that this appellant had no special reason to take sides with A-1 in a fight between A-1 and deceased; that too to go to the extent of committing a murder. It does not stand to reason why this appellant who is otherwise gainfully employed would take part in a crime of this nature without there being any special advantage to him nor there being any motive for him to be involved in the crime. The only case put forth by the prosecution in this regard is that the appellant and his brother were supporting A-1 in the dispute between A-1 and the deceased. Assuming that it is true, it cannot be a ground for the appellant to be involved in a murder case that too taking active part. This is as far as the motive goes. In regard to the incident as such, we notice that there is a dispute as to the actual time of occurrence. PWs.3 and 7 have stated that the incident in question had occurred at about 9 or 9.30 a.m. while PW-5 who is a Government photographer, has clearly stated in his examination-in-chief itself that when he went to the village to take photographs of the dead body, it was an hour after sunrise which was in the month of March, therefore, there was a considerable difference between the two timings which is relevant for the purpose of appreciating the evidence of PWs. 3 and 7. The High Court in this regard has found corroboration for PWs. 3 and 7 evidence from the stomach contents of the deceased as found in the P.M. report. We think this piece of evidence cannot always be relied on as conclusive evidence in the absence of there being some other evidence to show when the deceased had his last meal or when the deceased went to answer the call of nature. What intrigues us in this regard is the failure of the prosecution to clarify the time from PW-5 himself who has not been treated as a hostile witness, therefore, if there are two pieces of evidence in regard to the same fact both uncontroverted and uncorroborated then the benefit of doubt must be given to the accused. In the instant case, PW-5 s evidence as to the timing has not been challenged by the prosecution. The trial court accepted that version. The High Court refused to believe that solely on the ground that PW-5 had not recorded the time or he might have made mistake because he was giving evidence after considerable time - either of these reasons according to us, is not good enough to reverse the finding of the Sessions Court in this regard. Coming to the evidence of PWs. 3 and 7, we notice they are not the permanent residents of the village Gochi though they have every reason to visit the said village. Therefore, in a manner of speaking, they could be said to be chance witnesses. We also do not find any special reason for these 2 witnesses to have accompanied the deceased when he was going to the Police Station to lodge a complaint. It is rather unusual for a person to take with him two young girls to a Police Station when he had the assistance of other grown up male members available at that time. No special reason whatsoever has been given by the prosecution to establish this unusual conduct. Then we notice from the evidence of these 2 witnesses who have stated that at first all the accused persons were hiding in a Nullah, obviously meaning thereby the accused did not want to disclose their identities. If that be so, as observed by the learned Sessions Judge, they could have very well shot the deceased from where they were hiding; more so because of the fact the appellant being a policeman, used to firearms, could have very well shot at and killed the deceased from where he was hiding. In that background, we are unable to understand the version of the eye-witnesses when they also said that all these 4 accused persons suddenly appeared from their hiding and came in front of the deceased, waylaid him and shot him dead. As observed by learned Sessions Judge, this sounds rather unusual. The next part of the evidence of these eye-witnesses shows that A-1 first pulled the trigger of his revolver which did not fire then this appellant shot at the deceased with his .12 bore gun on his chest. At one stage these witnesses say that deceased was shot at when he was standing; at another stage they say that he was pulled down by A-2 and A-3 who held his hands and was then shot at. These contradictions also throw a doubt in regard to the actual manner in which the accused attacked the deceased. Then as observed by learned Sessions Judge, it is highly unnatural for A-2 and A-3 to have held the deceased at such a close range while the appellant shot at him with the .12 bore gun which sprays pellets. As observed by the learned Sessions Judge, no sensible person would incur the risk of standing close to the victim when he is being shot at by a .12 bore gun from a close range. In our opinion, these statements made by PWs. 3 and 7 are referred to us hereinabove, create sufficient suspicion in our minds to accept their evidence. Then we notice even the High Court has rejected the evidence of these witnesses in regard to A-2 and A-3. We do not find from the judgment of the High Court any special reason why their evidence which was not acceptable in regard to A-2 and A-3 can be accepted in regard to the appellant. Therefore, we think it not safe to rely on the evidence of these eye-witnesses. The High Court has relied on the recovery of a .12 bore gun at the instance of the appellant while the Sessions Judge has not placed any reliance on this recovery. It is seen from the records that before the appellant was brought to the village, the house of A-3 was searched by the Police and they did not find any weapon. It is a few days thereafter when the appellant was arrested. The prosecution alleges that on the basis of his statement the recovery of the gun was made from the Chabutra near the house of A-3. The panch witness for this recovery has not supported the prosecution case. In such a situation and in the background of the fact that on an earlier search of the house, the police were unable to recover this gun it becomes doubtful whether a recovery as stated by the investigating agency can be believed, more so the panch witness has not supported the recovery. Therefore, in our opinion even the recovery allegedly made at the instance of the appellant cannot be relied upon. If this be the conclusion in regard to the prosecution case we think it is not necessary to go into the defence put forth by the appellant because the prosecution should either succeed or fail on its own case. In the instant case we agree with the learned Sessions Judge that the prosecution has not established its case even against the appellant and the High Court was in error in selectively accepting the evidence tendered by the prosecution in regard to the appellant to come to the conclusion that he is guilty of the offence charged. (Paras 6, 7 and 8)

       Held further : In the instant case also we find that the trial court had taken a view which the High Court has not held to be either perverse, unreasonable or a finding which is not based on evidence, still on re-appreciation of the evidence, the High Court came to a different conclusion which on facts of this case and on the basis of the ratio of the law laid down by this Court in the above cited cases cannot be sustained. (Para 9)

       Held finally : For the reasons stated above, these appeals succeed. The judgment and conviction recorded by the High Court as against this appellant is set aside. The appeals are allowed. If the appellant is in custody, he shall be released forthwith, if not required in any other case. (Para 10)