Judicial Analysis Court Copy Headnote Facts Arguments Court observation

2022 Supreme(SC) 663

SUPREME COURT OF INDIA
B.R. Gavai, Pamidighantam Sri Narasimha, JJ.
Khema @ Khem Chandra Etc. – Appellant
Versus
State Of Uttar Pradesh - Respondent
Criminal Appeal Nos. 1200-1202 OF 2022 [Arising out of SLP(Criminal) Nos.8624-8626 of 2019]
Decided On : 10-08-2022

Advocates appeared:
For the Petitioner(s): Mr. Rajul Bhargav, Sr Adv Mr. Ashish Garg, Adv Mr. Kartikeya Bhargava, Adv Mr. Rajiv K Garg, Adv Mr. T. L. Garg, AOR
For the Respondent(s): Ms. Garima Prashad, Sr. Adv./AAG Mr. Vishnu Shankar Jain, AOR Mr. S.R. Singh, Sr. Adv. Mr. Sushant Kumar Yadav, Adv. Mr. Prateek Yadav, Adv. Mr. Pradeep Yadav, Adv. Mr. Adarsh Verma, Adv. Mr. Prithvi Yadav, Adv. Mr. Gaurav Lomes, Adv. Mr. Sanjeev Malhotra, AOR

IMPORTANT POINTS
(1) On the ground of minor inconsistencies, evidence of injured witness cannot be brushed aside.
(2) Enmity provides motive to crime and on other, there is a possibility of false implication.
(3) Appeal – Though in cases of concurrent findings of fact Supreme Court will not ordinarily interfere with said findings, in exceptional circumstances, Supreme Court is empowered to do so.

Headnote:
(A) Indian Penal Code, 1860 – Sections 302/149, 307/149 and 148 – Murder and attempt to murder – Common object – Conviction and sentence – On the ground of minor inconsistencies, evidence of injured witness cannot be brushed aside. However, there are material improvements in his evidence – His evidence is required to be scrutinized with greater caution and circumspection – Even according to prosecution, there is previous enmity between accused and deceased – Enmity provides motive to crime and on other, there is a possibility of false implication – There are no independent Panches to seizure memo – Apart from that, memorandum statement of accused, as is required to be recorded under Section 27 of Evidence Act, has also not been brought on record – Even seizure memo of recovery in respect of accused is not signed by any independent Panch witness – As such, recoveries cannot be said to be free from doubt – Possibility of prosecution not bringing on record real genesis of incident cannot be ruled out – Trial court as and High Court have failed to take into consideration vital discrepancies and inconsistencies in evidence of prosecution witnesses – This is a case wherein appellants are entitled for benefit of doubt – Appellants acquitted of all charges. (Paras 20, 23, 24, 25, 28, 29 and 30)
(B) Constitution of India – Article 136 – Appeal – Scope and ambit – Though in cases of concurrent findings of fact Supreme Court will not ordinarily interfere with said findings, in exceptional circumstances, Supreme Court is empowered to do so – If Supreme Court finds that appreciation of evidence and findings is vitiated by any error of law or procedure or found contrary to principles of natural justice, errors of record and misreading of evidence, or where conclusions of High Court are manifestly perverse, Supreme Court would not be powerless to reappreciate evidence. (Para 26)
Facts of the case:
Present appeals challenge the judgment and order dated 30th April 2019 passed by the High Court of Judicature at Allahabad in Criminal Appeal Nos. 6961, 7260 and 6227 of 2006, thereby dismissing the appeals filed by appellants and confirming the judgment and order dated 28th September 2006 passed by Trial Court, convicting appellants for offences punishable under Section 302 read with Section 149, Section 307 read with Section 149 and Section 148 of the Indian Penal Code, 1860 and sentencing them to undergo imprisonment for life with a fine of Rs. 5,000/- each.
Findings of Court:
Judgment and order dated 30th April 2019 passed by High Court of Judicature at Allahabad in Criminal Appeal Nos. 6961, 7260 and 6227 of 2006 and the judgment and order dated 28th September 2006 passed by trial court in Sessions Trial Nos. 515 and 655 of 2002 are quashed and set aside.
Result : Appeals allowed.

JUDGMENT :

B.R. GAVAI, J.

1. Leave granted.

2. These appeals challenge the judgment and order dated 30th April 2019 passed by the High Court of Judicature at Allahabad in Criminal Appeal Nos. 6961, 7260 and 6227 of 2006, thereby dismissing the appeals filed by the appellants and confirming the judgment and order dated 28th September 2006 passed by the Additional Sessions Judge, Court No. 4, Mathura (hereinafter referred to as “trial court”) in Sessions Trial Nos. 515 and 655 of 2002 convicting the appellants for offences punishable under Section 302 read with Section 149, Section 307 read with Section 149 and Section 148 of the Indian Penal Code, 1860 (for short ‘IPC’) and sentencing them to undergo imprisonment for life with a fine of Rs. 5,000/- each.

3. The prosecution case in brief is thus :

The marriage of two daughters of deceased Prakash was to be solemnized on 1st May 2002. On 27th April 2002 at around 08.00 am, when deceased Prakash and his wife Kripa were going to extend invitation to their relatives, near the house of accused Deepi, all the accused persons who were hiding themselves inside the house, came out carrying weapons. Accused Deepi and Kanhaiya were having farsa with them whereas accused Khema @ Khem Chandra was having a club. Accused Jasram, Balveer and Mahaveer were having country made pistols with them. All of them started assaulting deceased Prakash and threw him on the brick road. Inder (PW-2), brother of deceased Prakash, his sister Omwati and wife Kripa came forward to save the life of deceased Prakash. However, accused persons assaulted them as well. In the said assault, Inder (PW-2) suffered gunshot injury. On the basis of information given by Omveer (PW-1), brother of deceased Prakash, an FIR came to be lodged on 27th April 2002 at 10.10 am. On the basis of the said FIR, a crime for the offences punishable under Sections 147, 148, 149, 307, 302 and 506 of the IPC came to be registered against the accused persons. After completion of investigation, a charge-sheet came to be filed in the trial court. Since the case was triable exclusively by the Sessions Judge, it was committed to the learned Sessions Judge. The learned Sessions Judge framed the charges against the accused persons for the offences punishable under Sections 147, 148, 302 read with 149 and 307 read with 149 of the IPC. Charge was also framed against accused Balveer under Section 25 of the Arms Act, 1959 (hereinafter referred to as the “Arms Act”) and against accused Deepi under Section 4/25 of the Arms Act. The accused persons pleaded not guilty and claimed to be tried. At the conclusion of the trial, the trial court convicted the appellants as aforesaid. Being aggrieved thereby, the appellants had filed appeals before the High Court, which were also dismissed, thereby confirming the judgment and order of conviction and sentence passed by the trial court. Being aggrieved thereby, the appellants have approached this Court.

4. We have heard Shri Rajul Bhargav, learned Senior Counsel appearing on behalf of the appellants, Ms. Garima Prashad, learned Additional Advocate General for the State and Shri S.R. Singh, learned Senior Counsel appearing on behalf of the first informant.

5. Shri Bhargav submitted that the trial court and the High Court have grossly erred in convicting the appellants. He submitted that the appellants have been falsely implicated in the case. It is submitted that though Omveer (PW-1) is projected as an eye witness, it is clear from his testimony that he could not have witnessed the incident. He submitted that even the trial court has held that from the deposition of Omveer (PW-1), it is clear that he has not witnessed the incident. He further submitted that Inder (PW-2) who is said to be an injured witness, also appears to be a planted witness. It is submitted that from the evidence of the prosecution witnesses, there is serious doubt with regard to the timing as to when Inder (PW-2) has sustained injuries and as to when he