2001(4) Crimes 382 (SC)
SUPREME COURT OF INDIA
(From Madhya Pradesh High Court)
Chief Justice of India, R.C. Lahoti
and P. Venkatarama Reddi, JJ.
Thanedar Singh —Appellant
versus
State of Madhya Pradesh —Respondent
Criminal Appeal No. 1123 of 2000
Decided on 30-10-2001
Counsel for the Parties :
For the Appellant : Dr. T.N. Singh, Sr. Advocate, J.P. Pandey, L.S. Chauhan and Somnath Mukherjee, Advocates.
For the Respondent : Ms. Vibha Datta Makhija and Uma Nath Singh, Advocates.

IMPORTANT POINT
The High Court failed to address itself to certain crucial factors cast­ing doubt on prosecution version concerning the credibi­lity of eye witness account and the correctness of the FIR and wrongly disturbed the reasonably possible view of Trial Court ­acquitting the appellant.

Headnote:Indian Penal Code, 1860—Sections 302 and 148—Appellant charged under for murdering Rajbahadur Singh by gun short—Sessions Judge acquitted but High Court in appeal against acquittal under Section 378 Cr.P.C. convicted him under section 302—Appeal against to Supreme Court—Eye witness father of deceased PW 6 could not have identified accused due to dark night between 18th and 19th May and incident took place at midnight—FIR of 19th May but sent to Magistrate on 21 May—No explanation of delay—Non-mention of FIR Crime No. on Inquest report, site plan and on requisition sent to hospital for post-mortem—Inference that FIR was anti-timed to rope in the accused—Appellant not ruled out—Evidence of PW 8 not showing that he saw appellant in the running accused on the crucial night—Whether High Court was right in reversing the acquittal of appellant? (No)—Appeal allowed.

       Held : Having gone through the evidence and the record, we are of the view that the impugned judgment of the High Court shall not be allowed to stand. (Para 4)

       The High Court was of the view that the judgment of the Trial Court was perverse and its approach was unreasonable. The first comment made by the High Court was that the Trial Court did not assign any reason for disbelieving the FIR. The High Court found no infirmity in the FIR having regard to the fact that the part played by the accused appel­lant was specifically mentioned in the FIR. But, the High Court missed to note the crucial facts adverted to in Para 5.2 (supra) which cast a serious doubt on the correctness of the FIR, especially the time and date of its recording. The learned Sessions Judge particularly advert­ed to the fact that the prosecution did not produce the original record of police station relating to the receipt and despatch of FIR inspite of an order passed to that effect. Though the Trial Judge was not careful enough in recording a specific finding that the prosecution failed to clear the doubt regarding the date and time of recording the FIR, in sum and substance, that is what the learned Trial Judge pur­ported to say. The observations of the Trial court were not properly understood by the High Court when it proceeded on the basis at para­graph 12 that the Trial Court found fault with the delay in lodging the complaint at 9 A.M. on the next morning. But, it is to be noted that nowhere in the judgment, the trial court observed that the com­plaint having been lodged and recorded at 9 A.M. next morning, that itself would tantamount to delay. The second aspect commented upon by the High Court was that there was no basis for the finding of the Trial Court that the moon rise was at about 3 O’Clock on 19th May. The learned Judges commented that the almanac was not brought on record. But, it is to be seen that the learned Sessions Judge referred to the evidence of DW 1 Pandit Kedar Nath whose evidence need not be thrown out merely for the reason that almanac was not filed. DW 1 was clear in his deposition that according to ‘Kashi Vishwa Panchangam’, which he brought with him, on the inter­vening night of 18th and 19th, the moon rise would be at 2.31 a.m. This statement has not been challenged in the cross-examination. The only point elicited in the cross-examination was that according to some other almanac, there will be some difference and the moon rise may be at 2.45 a.m. The statement of PW 6 that the night became bright after 12, mid-night is liable to be doubted. There is no basis for the assumption of the High Court that the rising of the moon could be before mid night. However, on the aspect of identification, the High Court may be justi­fied in commenting, based on Nathuni Yadav v. State of Bihar (1998(9) SCC 238) that the approach of the Trial court is faulty. In Nathuni Yadav’s case (supra), this Court pointed out that under cer­tain circumstances, the lack of moonlight or artificial light does not per se preclude identification of the assailants. Thomas J. speaking for the Court observed:-

       “Even assuming that there was no moonlight then, we have to gauge the situation carefully. The proximity at which the assailants would have confronted with the injured, the possibility of some light reaching there from the glow of stars, and the fact that the murder was commit­ted on a roofless terrace are germane factors to be borne in mind while judging whether the victims could have had enough visibility to correctly identify the assailants. Over and above those factors, we must bear in mind the further fact that the assailants were no strang­ers to the inmates of the tragedy-bound house, the eyewitnesses being well acquainted with the physiognomy of each one of the kil­lers. We are, therefore, not persuaded to assume that it would not have been possible for the victims to see the assailants or that there was possibi­lity for making a wrong identification of them. We are keeping in mind the fact that even the assailants had enough light to identify the victims whom they targeted without any mistake from among those who were sleeping on the terrace.”

       While the possibility of identification of the accused-appellant cannot be ruled out in the present case too having regard to the fact that the accused was not stranger and the occurrence was at an open place, there is one more factor which creates some difficulty in the matter of identification. PW 6 as sleeping on a cot at a little dis­tance from the spot where the victim was sleeping. PW 6 stated that as many as five persons including the appellant surrounded his son and two of the accused were standing in front of his cot. In this situa­tion, assuming that there was faint light emanating from the open sky, would it be possible for PW 6 to observe the appellant firing the shot from the rifle? The possibility seems to be remote. At any rate, this aspect ought to have engaged the attention of the High Court before reversing the trial court’s finding on the point of identifica­tion by PW 6. The third comment made by the High Court is that no reason was assigned by the High Court for disbelieving the eye-witness - PW 6 (wrongly noted as PW 3). This comment ignores the fact that the iden­tification by PW 6 - Bhola Singh was itself doubted by the Sessions Judge. That apart, as already pointed out supra, PW 6 categorically stated that he did not reveal the names of the accused to any one not even to his close relations after the occurrence. This point was also taken into account by the trial court (vide para 16 of the judgment). This fact which is not quite consistent with the professed knowledge of the witness about the assassin has not been taken into account by the High Court. The High Court then commented that the Trial Court was not justi­fied in disbelieving PW 8 (wrongly noted as PW 9) who is the cousin of the deceased merely on the ground that since the lands were leased out, there was no occasion for him to sleep at the barn. The High Court, however, did not express any view of its own on the credibili­ty and worth of the evidence of PW 8. His evidence was not re-appreciated. As already noticed, according to his version, he saw five accused persons near his field soon after the occurrence and the appellant was not one amongst them. The High Court found fault with the comment of the trial Court that in Ex. P5 (site plan), Ex. P6 ­(inquest report) and Ex. P8 (application for post mortem) the names of the accused were not mentioned. True, the details of the accused persons need not be men­tioned in Ex. P5 or Ex. P8 but in the inquest report, it is not unusual to note the gist of FIR or the cause of death as narrated by the witnesses. We have already referred to the observations in Meharaj Singh’s case in this regard. Be that as it may, the trial court’s conclusion will not be vitiated merely because certain inappropriate observations were incidentally made. As regards the motive for the crime, the High Court observed in Paragraph 3 that one of the reasons for acquittal was that the motive was not proved. This is again a factually incorrect statement. In the trial court’s judgment, the learned Judge did not attach much impor­tance to motive as seen from paragraph 8 of the judgment. Apart from observing that there was no evidence of enmity between the deceased and the accused, the trial court noted that much importance need not be given to this aspect as the case is based on eye witness account. (Paras 6 to 11)

       Held consequently : The foregoing discussion shows that the High Court was not justi­fied in making the comments that the trial court did not give reasons on certain important aspects or misdirected itself in the appreciation of evidence. Though the judgment of the trial court is somewhat per­functory and lacking clarity in certain respects, on the whole, the approach and conclusions of the trial court cannot be said to be perverse or vitiated by any serious error warranting interference with the verdict of acquittal. The view taken by the trial court, in our opinion, is a reasonably possible view and, therefore, the High Court was not justified in reversing the acquittal insofar as the appellant is concerned. The High Court failed to address itself to certain crucial factors discussed above concerning the credibility of eye witness account and the correctness of the FIR. (Para 12)

       Held finally : For the aforesaid reasons, the appeal is allowed. The conviction and sentence of the appellant under Section 302 IPC is set aside and the appellant is directed to be set at liberty forthwith, if not required to be detained in any other case. (Para 13)