1990 Supreme(SC) 205

SUPREME COURT OF INDIA
A.M. Ahmadi and M. Fathima Beevi. JJ.
Kanti Kumari Roy - Appellant
versus
Suresh Kumar Roy & Ors. - Respondents
Crl. Appeal No. 4 of 1988
Decided on 4-4-1990

IMPORTANT POINT
When there is overwhelming evidence on record pointing to the guilt of the accused and the High Court committed a grave error in lightly brushing it aside and reversing the order of conviction recorded by trial court, the Supreme Court can restore the order of conviction even in an appeal against acquittal.

Headnote:(i) Indian Penal Code, 1860 - Sections 302 & 307 - Prosecution for the offence under - Accused was annoyed with his father as he refused to grant him a share in the lands transferred in the name of P.W. 2 and her children - Eye witnesses - Only three persons, namely, the deceased, P.W. 11 & the accused were present at the scene of occurrence - No question of deceased or P.W. 11 having used the weapon in view of the injuries sustained by them - Only- the accused emerged unhurt - P.W. 2 and P.W.11, being mother and son, they had no reason to falsely implicate the accused - Weapon of attack admittedly belonged to the accused The accused had produced the weapon soon after the occurrence - Expert evidence shows that the extracted bullet was fired from the barrel of this weapon - Overwhelming evidence on record pointing to the guilt of the accused - Trial Judge had rightly concluded that the accused was responsible for the death of his father & for the injuries to P.W. 11- Conviction affirmed.

       Held: It is evident from the evidence of P.Ws. 1, 3, 5, 6, 8, 9 & 12 that the deceased had called the Panchayati at his Baithak for partitioning his properties amongst his two sons. Even these witnesses who have departed from their earlier version before the police, support the prosecution to the limited extent that both the accused and P.W. 11 were present at the Panchayati. As there was no agreement on partitioning the properties, the Panchayati dispersed and soon thereafter gun shots were heard. Some of the members of the Panchayati rushed back and found P.W. 11 injured and Krityanand Roy lying dead in the Chowki. It is, therefore, obvious that after the Panchayati dispersed only three persons, namely, the deceased, P. W. 11 and the accused remained in the Baithak. There is no question of the deceased or P.W. 11 having used the weapon in view of the injuries sustained by them. Only the accused emerged unhurt. It was his revolver. The needle of suspicion, therefore, points towards the accused. However, in the cross-examination of P.W. 2 it was suggested that P.W. 11 had handed over the pistol to her to hide it somewhere. In the cross-examination of P.W. 11 also a similar suggestion was made. These suggestions imply that the defence case upto that stage was that it was P.W. 11 who had used the accused’s revolver and had thereafter handed it over to P.W. 2 to hide it but she handed it over to the police. P.W. 16 has tried to support this defence version. However, on realising that P.W. 11 was seriously injured, that case was given a goby and instead defence witnesses were examined to prove that it was P.W. 2 who had fired the shots. D.W. 2 deposed that after the Panchayati there was some talk between the deceased and P.W.l1 when P.W. 2 entered with a gun and fired a shot at P.W. 11 and thereafter at her husband. D.W s 3, 5, 6 and 7 have deposed that they hap seen P.W. 11 grappling with his mother while she was in the process of shooting the deceased. The accused stated that P.W. .2 had removed his licensed revolver from below the pillow of his bed and had used the same in the commission of the crime We find it difficult to believe this part of the defence version for the simple reason that P.W. 2 had no reason, whatsoever, to fire at her son P.W. 11 or at the deceased since the latter had tried to protect her interest by refusing a share to the accused in the lands transferred to her name.

       The accused had stated in his statement that his step-mother had killed his father with his revolver and P.W. 11 received the injury when he tried to intervene. It is, therefore, obvious from this statement that even according to the accused the weapon of attack was his revolver. The report of the Director of Forensic Science Laboratory confirmed that it was the same weapon from which the extracted bullet was fired. According to P.W. 17 the accused surrendered his revolver along with seven live cartridges. If P.W.2 had, in fact, removed the revolver as alleged and had used it, it is difficult to understand how she came in possession of seven live catridges also because it is not the case of the accused that he had left the live catridges also under his pillow. Therefore, the story that P.W. 2 removed the revolver belonging to the accused and used it in the commission of the crime is, to say the least; thoroughly got up and imaginary.

       (Paras 7 & 8)

       (ii) APPEAL AGAINST ACQUITTAL - Indian Penal Code, 1860 - Sections 302 and 307 - Conviction under - Appeal - High Court reversed the order of conviction on thoroughly unsustainable grounds - Evidence of P.W. 2 and P.W. 11 was doubted on flimsy grounds placing reliance on a minor contradiction - Trial Court had rightly concluded that the accused was responsible for the death of his father - High Courts interference was totally unjustified, being against the weight of evidence - HIGH Court failed to appreciate the evidence in the correct perspective - There is overwhelming evidence on record pointing to the guilt of the accused - Order of Trial Court is restored.

       Held: The High Court has taken the view that both P.W. 2 and P.W. 11 are highly interested witnesses and the conduct of P.W. 11 in getting himself admitted to the Purnea Hospital is somewhat strange. The High Court has also criticised the conduct of P. W. 2 in not-approaching the police on reaching Purnea or at Kalihar. According to the High Court P.W. 2 was no ordinary woman, she was the retainer of her husbands gun and had shown great capacity at manoeuvring. There is no doubt that P.W. 2 and P.W.1 are mother and son, respectively. It is also true that P.W. 2 was the retainer of her husbands gun kept at Katihar. After the death of her husband she has retained his weapons. She had to run for her life from the Rajwara house after her son was injured and her husband was killed. She reached Pumea and from there she took a bus to Katihar. She has explained that she did not go to the Katihar Police Station because Rajwara did not fall within the jurisdiction of that police station. She was so terrified and shocked that she did not even wait to nurse her injured son. It was only after she reached Katihar that she collected herself and returned in her car to Rajwara. She then took her husband to the Hospital. By that time P.W. 11 had reached the Purnea Hospital and was given treatment by Dr. R.N. Chobey. The conduct of P.W. 11 in going to Purnea Hospital has been criticised by the High Court but we do not see anything unusual in P.W. 11 having chosen to go to a hospital where he knew his sisters friend Dr. Shanta Roy was serving. His statement was not recorded by the police immediately because even according to Dr. Chorey his condition was very low when he was admitted to the hospital. He remained in the hospital for over a month and a half. The statement of P.W. 2 was recorded on the next day as she was not immediately available since she too had gone to the hospital with the body of her husband. There is, therefore, nothing unusual about the conduct of P.W. 2 and P.W.11. Although they are mother and son, we do not see any reason to doubt their testimony since it stands corroborated in material particulars not only by medical evidence but also by the evidence of the prosecution witnesses and to some extent even by the defence witnesses. Therefore, the presence of the accused andP.W.11 at the Panchayati cannot be doubted. If the deceased and P.W.11 could not have used the weapon and if the accuseds effort to implicate P.W. 2 has failed, the only inference that can be drawn is that the accused had fired the shots. The evidence of P.W. 2 and P.W. 11 is consistent with this line of reasoning.

       (Para 9)

       Further held: In our view there is over whelming evidence on record pointing to the guilt of the accused and the High Court committed a grave error in lightly brushing it aside. Besides, the High Court cast unwarranted aspersions in regard to the conduct, character and role of P.W. 2 which cannot be allowed to stand. She was virtually compelled to approach this Court to have her name cleared. This is an additional reason necessitating our interference.

       (Para 11)