Important Point
When Court finds that evidence of eye witnesses is true and can be relied upon, absence of proof of motive or conspiracy would not dislodge the prosecution of securing conviction of accused.

Headnote:Indian Penal Code, 1860—Sections 302, 307/34—Appellant convicted by High Court in an appeal against acquittal—Appeal—PW15, father of complainant PW1 came to door of his house to receive telegram—PW1 saw some one fired two shots on PW15 on his chest and elbow—PW2, brother of PW1 and deceased ran after miscreants and deceased caught hold of appellant but other three miscreants ran away—Appellant fired shot in abdomen of deceased and tried to run away but he was captured on spot with country made pistol—Trial Court disbelieved eye witnesses and acquitted all accused including appellant—High Court on reappreciation of evidence convicted appellant but leave to appeal against other accused was declined—Appeal—High Court had power and jurisdiction to re-appraise evidence where it felt that Sessions Court had committed error in its approach, application of law and appreciation of evidence—High Court placed reliance on fact of immediate lodging of FIR and confirmation of story narrated therein by ocular statements—High Court rightly took different view—Acceptance of part of the evidence and discarding unreliable part was in accordance with law—No error or illegality in reversing order of acquittal by High Court.
       Held : On the first question, the submission of the learned senior counsel is based on the principles enunciated by this Court, in cases where two views are possible, the High Court should not interfere because it feels that sitting at the sessions court it would have preferred conviction. The High Court should consider every reason given by the sessions court in favour of acquittal and then dislodge them. We are in complete agreement with the principles laid down by this Court in number of decisions but at the same time we may mention that they do not take away the powers and jurisdiction of the appellate court to re-apprise the evidence in cases where it feels that the sessions court has committed an error in its approach, application of law and also appreciation of evidence on record or when the court has misread or not read the evidence placed before it. It cannot be said that the appellate court does not have the power to reverse the order of the sessions court when it feels and finds that there is a direct evidence to prove to the contrary on record, otherwise it would defeat the entire purpose and the intent of providing appeal against the judgment of the sessions judge. In the present case, what we find is that the High Court has reached a different conclusion on appreciation of the statement of the eye witnesses. The High Court has appreciated the statement of the victim PW-15 which the sessions court failed to do. The High Court has placed reliance on the fact of immediate lodging of FIR and the confirmation of the story narrated therein by ocular statement of the witnesses examined by the prosecution. The High Court has rightly taken a different view on the statement of PW-1 which has been ignored by the trial court on the basis of the insignificant aspects namely that he could not name the persons among the crowd that had gathered outside his house. Or that how is it that his clothes were not blood stained while he was standing behind his father and tried to help his father. We have also considered the statement of PW-15 on whom the first attack was made and from where the accused started running away and was chased by PW-1, along with the deceased Ramesh who was shot when he was able to catch hold of accused appellant. We feel that the testimony of PW-15 cannot be discarded as he is the victim and also there is no denying of the fact that he was shot at. It would be incorrect to say that the person who was shot at from a near distance would not be in a position to look at the face of the assailants in the availability of sufficient light. There does not appear to be any motive or reason for PW-15 to falsely implicate the appellant in such a serious crime. The statement of PW-1 could not have been discarded whose presence in the whole of the incident is natural as the incident commenced at his house and culminated in a nearby place when he along with other persons including the deceased Ramesh, chased the miscreants and apprehended the accused-appellant with a gun in his hand. It could not be ignored that there was sufficient time and opportunity for him to see that it was the appellant who was involved in commission of the crime. The sessions court’s approach in appreciating the evidence of PW-1 was, in our view, rightly discarded by the High Court. We do not see any merit in the argument of the appellant that he has been falsely implicated, as he was caught near the place of incident, along with a country made pistol. The fact that PW-1 could not remember the faces of persons among the people who had gathered outside his house at the time of incident, would not make the testimony unreliable. Paras 7 & 8)
       The High Court’s acceptance of part of the evidence and discarding the unreliable part is in accordance with law and is in tune of the established practice followed by the courts while appreciating the evidence of the witnesses. The sessions court has committed an error in discarding his evidence wholly. The statement of PW-3 is a corroborative piece of evidence corroborating the statement of witnesses PW-1 and PW-2. The High Court has rightly found that the statement of Dr. Goyal who was the first in point of time to examine Ramesh, the deceased, is reliable regarding the nature of injuries and supported by the statement of ballistic expert (PW-21) that a gun was used in the incidence. (Para 8)
       From the evidence on record the sessions court and the High Court has rightly held that the prosecution has failed to establish the conspiracy theory, and that the motive to commit the crime has not been proved, but does this mean that the High Court could not have convicted the accused placing reliance on the statement of the eye witnesses just because the prosecution failed to prove a particular theory. We do not think so. It is not necessary that if the prosecution theory of the conspiracy or the motive fails, the entire case would crumble to ground. The High Court has found the version given by the witnesses trustworthy and found support to their statement from the medical evidence and lodging of the prompt FIR, apart from the fact that the appellant was apprehended on the spot or near about the spot of crime with the weapon which was used in commission of crime. When the court finds that the evidence of the eye witnesses is true and can be relied upon, absence of proof of motive or the conspiracy to commit the crime would not dislodge the prosecution of securing the conviction of the accused on the basis of the reliable evidence. (Para 9)

JUDGMENT

P.P. Naolekar, J.—The accused appellant along with two other persons namely, Sahdulli Khan and Mehtab Khan were tried for committing an offence under Section 302, 307/34 IPC and under Section 27 of the Arms Act. The learned Sessions Judge acquitted all the accused persons. The State preferred two appeals challenging the order of acquittal of the appellant and the other being acquittal of two other persons. The High Court refused leave in appeals preferred by the State against the two other persons and accordingly the appeals were dismissed. Against the order of acquittal passed in favour of the appellant in two appeals, leave was granted and the High Court set aside the order of the Sessions Judge, acquitting the accused-appellant and convicted the appellant under Section 302 IPC and sentenced him to undergo life imprisonment. He was further held guilty of the charge under Section 307/34 IPC and sentenced to undergo five years rigorous imprisonment and guilty of the charge under Section 27 of the Arms Act and sentenced to undergo one year rigorous imprisonment. All the sentences were to run concurrently. Aggrieved by the order of conviction the present appeal is filed.

2. The prosecution case in short as per the FIR lodged at the Police Station Kotwali, Mathura on 22.2.1978 by PW-1 Satya Prakash is that his father living in Pirpanchi Gali, Mathura had litigation with one Kedar, son of Ayodhya Prakash, resident of Mathura. On 22.2.1978 at about 6.30 P.M. a call was given at the door of Ranchor Lal, father of the complainant, to come and receive a telegram. Ranchor Lal came out to the main door, received the telegram and started reading it. Satya Prakash followed him and was standing behind him. The complainant saw that some one fired two shots on his father Ranchor Lal and the shots hit Ranchor Lal PW-15 on his chest and elbow, whereafter he fell down. Shiv Kumar PW-2, the other brother of the complainant ran after the miscreants raising hue and cry, who were four in number in the street. One Ramesh (deceased), son of Keshav also ran after the miscreants and was able to catch hold of one of them. The miscreant in his attempt to flee fired on Ramesh which hit Ramesh on the abdomen. After the fire was shot the miscreant was overpowered in Holiwali Gali, near Chhota Bazar, Mathura by the complainant and other namely, Halla, Banwari Lal, Dauji and few others. The other three companions of the miscreant were successful in escaping from the spot but various witnesses, in the streetlight managed to see their faces. The apprehended miscreant had a country made pistol in his hand and upon questioning, gave out his name as Haji Khan (appellant herein). The FIR was prepared by Satya Prakash PW-1 in his own hand and was sent to the police station. His brother Shiv Kumar, PW-2 and witnesses Dauji and Banwari Lal PW-3, caught the appellant on the spot and a country made pistol was recovered from him. It is also mentioned in the FIR that injured Ramesh had been sent to the hospital and Satya Prakash the complainant was also in the process of taking his father to the hospital. On his way to the Agra Hospital, Ramesh succumbed to his injuries and died.

3. The defence version appears to be that they have been falsely roped in the case due to some wrong assumptions. According to the appellant-Haji Khan, he was serving in the Indian Army at the relevant time and that he had gone to Chhota Bazar, Mathura. There was electricity failure in the market and suddenly some commotion took place, people started running helter-skelter. In the confused melee, some one hit him on the head and he fell down in the market. He was then taken to the house where he was mercilessly beaten, upon gaining consciousness he found himself in the hospital and only then he came to know that he was under arrest. He alleged false implication. In support of the defence of the appellant, four witnesses were examined. Relevant for the purposes of the appellant’s case are DW

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2005 Supreme(SC) 1524

Important PointWhen Court finds that evidence of eye witnesses is true and can be relied upon, absence of proof of motive or conspiracy would not dislodge the prosecution of securing conviction of accused.

Important Point
When Court finds that evidence of eye witnesses is true and can be relied upon, absence of proof of motive or conspiracy would not dislodge the prosecution of securing conviction of accused.