Achhar Singh vs The State Of Himachal Pradesh on 7 May, 2021


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Achhar Singh vs The State Of Himachal Pradesh on 7 May, 2021

Author: Surya Kant

Bench: Hon’Ble The Justice, Surya Kant

                                                                       REPORTABLE

                                   IN THE SUPREME COURT OF INDIA
                                 CRIMINAL APPELLATE JURISDICTION

                              CRIMINAL APPEAL NOS. 1140 ­1141 OF 2010


       Achhar Singh
                                                                          ..... Appellant

                                                 VERSUS

       State of Himachal Pradesh                                        ..... Respondent


                                                 WITH
                                  CRIMINAL APPEAL No. 1144 of 2010

       Budhi Singh
                                                                          ..... Appellant

                                                 VERSUS

       State of Himachal Pradesh                                       ..... Respondent


                                            JUDGMENT

Surya Kant, J:

The appellants Achhar Singh and Budhi Singh are aggrieved by

the judgment and order dated 12.05.2010/27.05.2010 passed by the

High Court of Himachal Pradesh whereby their acquittal by the Addl.

Sessions Judge, Mandi dated 24.02.1998 has been set aside.
Signature Not Verified

Consequently, Achhar Singh has been convicted for offences under
Digitally signed by
Vishal Anand
Date: 2021.05.07
19:41:46 IST
Reason:

Sections 452, 326 and 323 of the Indian Penal Code, 1860 (“IPC”) and

Page | 1
sentenced to undergo rigorous imprisonment for five years along with

fine, while Budhi Singh has been convicted for offences under Sections

302 and 452 IPC and sentenced to undergo imprisonment for life

along with fine.

FACTS:

2. The prosecution case, in brief, is that on the night of

23.02.1996, the complainant Netar Singh’s wife (Meera Devi, P.W.11)

and mother (Swari Devi) had attended the marriage function in a

nearby village at the house of the bridegroom with whom their

neighbour Budhi Singh’s daughter got married. Both the ladies

returned home with ‘Dhaam’ (traditional food served on social events).

It is relevant to mention here that owing to their social boycott by

Budhi Singh and some other villagers, Netar Singh’s family did not

attend any marriage function at the former’s house. At about 8 pm

when the complainant and his family were taking Dhaam, Budhi

Singh, Achhar Singh along with some other villagers shouted for the

complainant and his father (Beli Ram, P.W.12) to come out. When they

neared the door, they sensed the intention of the accused to kill the

complainant party. The appellants and other villagers started pelting

stones at the complainant party which forced them to rush back to the

house and bolt their door. The assailants, however, broke open the

door and entered the house bearing arms. Budhi Singh and Achhar

Page | 2
Singh had axes, while the other accused were armed with sickles,

spears and sticks. It is alleged that Budhi Singh executed an axe blow

on Swari Devi’s head causing her death on the spot and Achhar Singh

hit Beli Ram with an axe due to which the latter fainted. The

complainant was also allegedly beaten with sticks by other villagers

after which he somehow managed to escape to the roof. Meera Devi

begged the assailants for mercy and they left threatening that the

complainant’s family will be killed if they tried to leave the house.

3. Meanwhile, some villagers including Govind Ram (D.W.2) and

Bahadur who were standing outside intervened and called on the

accused persons to stop the violence whereupon the accused were

forced to leave the place of incident. Afterwards, at around 2:00 AM

the complainant went to the house of the Pradhan of Gram Panchayat

(Beasa Devi ­ D.W.1) to inform her about the assault. She advised the

complainant to contact the police. Since phone lines were down in the

village and no buses plied at night, the complainant walked 24 kms to

Jogindernagar police station and lodged FIR No. 36 of 1996 against

sixteen villagers including the appellants at 9:30 AM on 24.02.1996.

The police after investigation found that only seven persons out of the

lot were involved in the attack against whom charge­sheet was filed.

The accused persons were committed to stand trial for offence under

Sections 147, 148, 452, 506, 323, 302 and 326 of the IPC.

Page | 3

4. The Additional Sessions Judge, Mandi acquitted all the accused

vide judgment dated 24.02.1998. The trial Court while observing prior

enmity and extensive litigation between the parties, did not rule out

the possibility of false implication. The belatedly exaggerated

allegations by the prosecution witnesses, were held to be an attempt

by the complainant party to rope in as many people as possible. In

regard to the role of present appellants, it was pointed out that

according to the FIR, Swari Devi died owing to a single axe blow

inflicted by Budhi Singh and the post­mortem report also showed only

one head injury on her person. However, three prosecution eye­

witnesses, namely, Netar Singh – P.W.1 (the complainant), Meera Devi

– P.W.11 and Beli Ram – P.W.12 deposed that Budhi Singh gave two

axe blows on her head and then Narinder Singh (co­accused) also hit

the deceased’s left ear with an axe twice. It was further noticed that

while the complainant initially stated that his father was attacked on

the face by Achhar Singh and Prakash (co­accused), but in their

depositions the injured or eyewitnesses have attributed attacks to

other co­accused persons also which were not corroborated by the

medico legal report of Beli Ram. They also changed the nature of

attack attributed to co­accused Prakash.

5. The trial Court also observed that eyewitness – Govind Ram

(D.W.2) did not support the prosecution story and the Gram

Page | 4
Panchayat Pradhan (Beasa Devi – D.W.1) stated that the complainant

only informed her about a minor dispute after which she advised him

to contact the police. Noting that no evidence was put forth by the

complainant to establish the unavailability of telephone network in the

neighbouring village, the Court found the delay in registering the FIR

to be fatal to the prosecution. The spot of occurrence was also

doubted observing that bloodstains were noticed in the passage

leading to the village. Keeping in view the conflicting exaggerations by

the prosecution witnesses coupled with the allegation that about

sixteen persons entered a small room and started attacking the

complainant party with various deadly weapons, the trial Court could

not attribute any specific injury to any of the accused and thus

acquitted them all by giving the benefit of doubt.

6. The High Court upon re­appreciation of the entire evidence, set

aside the acquittal of the appellants Achhar Singh and Budhi Singh

though it has upheld the acquittal of the rest of the five accused.

While acknowledging the contradiction between the contents of FIR,

the witness testimonies and the medical reports, the High Court stated

that a thread of consistent evidence against the appellants could still

be extracted from the material on record, howsoever messy it was.

Disregarding the exaggerations and improvements made by the

complainant party, the High Court observed that the allegation of the

Page | 5
first axe blow by Budhi Singh on the head of Swari Devi was

corroborated by the FIR, the prosecution witnesses, the post­mortem

report which mentioned one fatal head injury by a sharp weapon and

the recovery of axe from him. The High Court noted that the

allegations against Achhar Singh with regard to his assault on Beli

Ram with an axe were also consistent, and medical evidence showed

that some injuries could have been caused by an axe.

7. It was noticed that Govind Ram (D.W.2) being the son­in­law of

the appellant Budhi Singh could not have deposed against him. While

dealing with the delay in filing the FIR, the High Court considered the

unavailability of buses at night, terrain of the area and the distance

between the complainant’s house and Jogindernagar police station (24

kms) while concluding that he could not have reached there until next

morning. With regard to the trial Court’s confusion about the spot of

the occurrence, it was held that the evidence regarding the broken

windowpanes, scattered articles in the room, plates with leftover food

etc. was enough to conclude that the occurrence took place inside the

room and the presence of random blood marks elsewhere ought not to

be given undue credit. It was also observed that since the marriage of

Budhi Singh’s daughter was solemnized on 21.02.1996, no marriage

function could have been underway at Budhi Singh’s house on the

night of the incident. While observing that the evidence on record did

Page | 6
not suggest a common intention to kill Swari Devi or cause grievous

hurt to Beli Ram, the appellants were held to be liable for their

individual acts. Budhi Singh was thus convicted for offences under

Sections 302 and 452 IPC and Achhar Singh was convicted for the

offences under Sections 452, 326 and 323 IPC. They have now come to

this Court against their conviction by the High Court.

CONTENTIONS:

8. Relying on Murugesan v. State1, Learned Senior Counsel for

Budhi Singh contended that so long as the trial Court’s view was a

‘possible view’, further scrutiny by the High Court in exercise of

powers under Section 378 CrPC was not called for. While citing

Aruvelu v. State2, it was urged that the trial Court’s judgment cannot

be set aside merely because the appellate Court’s view is more

probable and that to merit interference by the High Court there has to

be perversity in the trial Court’s judgment. It was also pressed that

owing to their proximity to the witnesses, the trial Courts are at an

advantage to judge the credibility of the witnesses and make

intangible observations. Learned Senior Counsel highlighted the

prosecution witnesses’ tendency to exaggerate and falsely implicate,

and pointed out that the four head injuries to the deceased as alleged

1
(2012) 10 SCC 383.

2

(2009) 10 SCC 206.

Page | 7
by the eye­witnesses were falsified by the medical evidence which

showed only one head injury. It was also accentuated that nine

persons who were mentioned in the FIR were let go at the stage of

charge as bystanders. The contention was that the prosecution also

ought to have arrayed these nine persons as witnesses. Salim Akhtar

v. State of UP3 was cited to urge that since the axe was recovered

from a public place, it could not be held that Budhi Singh was in

possession of the article recovered. Additionally, no conclusive

presence of blood on the axes recovered was stated in the FSL report.

9. Highlighting the fact that there was a marriage function going on

in Budhi Singh’s house, it was urged that he had no reason to leave

mid­celebration and attack his neighbours. Doubt was also cast on

the actual spot of the incident contending that P.W.16 – ASI Jaisi Ram

had deposed that there was a blood trail outside the house. It was

further contended that Narinder Singh had also been accused of

inflicting a head injury on the deceased with an axe and despite

recovery of an axe from him, the High Court has not interfered with

his acquittal. Suspicion was cast on the actual time of lodging the FIR

(lodged at 9:30AM) as P.W.11 ­ Meera Devi had stated in her cross

examination that the police arrived at 8­9 AM in the morning. It was

then asserted that the police could not have arrived before the FIR had

3
(2003) 5 SCC 499, ¶ 11­12.

Page | 8
been lodged. Doubt was also cast on the exact time of death of the

deceased as the prosecution witnesses stated that she died on the spot

whereas according to P.W.3 – Dr. D.D. Rana who conducted the post­

mortem, the time between the death and the post­mortem (on

25.02.1996 at 11am) was ‘within 10 hours’.

10. Learned Senior Counsel for Achhar Singh also reiterated these

very contentions and made a pointed reference to the statements of

eye­witnesses according to which, some other accused besides Achhar

Singh, too had hit Beli Ram with their respective weapons. It was

claimed that trial Court rightly expressed its inability to identify the

definite architect of individual injuries.

11. On the other hand, counsel for the State while placing reliance

on Sheikh Hasib @ Tabarak v. State of Bihar4 & Dharma Rama

Bhagare v. State of Maharashtra5, canvassed that the FIR was not

a substantive piece of evidence and could be used for contradicting or

corroborating only its maker and not other witnesses. He contended

that the credibility of the witnesses cannot be called into question

merely because they were related to the deceased (while citing State

of UP v. Kishan Chand6) or because there were minor discrepancies

4
(1972) 4 SCC 773.

5

(1973) 1 SCC 537.

6

(2004) 7 SCC 629.

Page | 9
or exaggerations (relying on Leela Ram v. State of Haryana 7). While

bringing out attention to this Court’s observations in Gangadhar

Behera v. State of Orissa8 and Prabhu Dayal v. State of

Rajasthan9 it was urged that inconsistent evidence by the

prosecution witnesses against one accused cannot be capitalised to

give the benefit of doubt to another.

ANALYSIS:

12. The question which falls for consideration in these appeals is

whether the High Court while exercising its powers under Section 378

of the Code of Criminal Procedure, 1973 (“CrPC”) was justified in

interfering with the acquittal by the trial Court?

13. It is fundamental in criminal jurisprudence that every person is

presumed to be innocent until proven guilty, for criminal accusations

can be hurled at anyone without him being a criminal. The suspect is

therefore considered to be innocent in the interregnum between

accusation and judgment. History reveals that the burden on the

accuser to prove the guilt of the accused has its roots in ancient times.

The Babylonian Code of Hammurabi (1792­1750 B.C.), one of the

oldest written codes of law put the burden of proof on the accuser.

7
(1999) 9 SCC 525.

8

(2002) 8 SCC 381.

9

(2018) 8 SCC 127.

Page | 10
Roman Law coined the principle of actori incumbit (onus) probatio (the

burden of proof weighs on the plaintiff) i.e., presumed innocence of the

accused. In Woolmington v. Director of Public Prosecutions10, the

House of Lords held that the duty of the prosecution to prove the

prisoner’s guilt was the “golden thread” throughout the web of English

Criminal Law. Today, Article 11 of the Universal Declaration of Human

Rights, Article 14 of the International Covenant on Civil and Political

Rights and Article 6 of the European Convention on Human Rights all

mandate presumption of innocence of the accused.

14. A characteristic feature of Common Law Criminal Jurisprudence

in India is also that an accused must be presumed to be innocent till

the contrary is proved. It is obligatory on the prosecution to establish

the guilt of the accused save where the presumption of innocence has

been statutorily dispensed with, for example, under Section 113­B of

the Evidence Act, 1872. Regardless thereto, the ‘Right of Silence’

guaranteed under Article 20(3) of the Constitution is one of the facets

of presumed innocence. The constitutional mandate read with the

scheme of the Code of Criminal Procedure, 1973 amplifies that the

presumption of innocence, until the accused is proved to be guilty, is

an integral part of the Indian criminal justice system. This

presumption of innocence is doubled when a competent Court

10
[1935] AC 462 (HL)

Page | 11
analyses the material evidence, examines witnesses and acquits the

accused. Keeping this cardinal principle of invaluable rights in mind,

the appellate Courts have evolved a self­restraint policy whereunder,

when two reasonable and possible views arise, the one favourable to

the accused is adopted while respecting the trial Court’s proximity to

the witnesses and direct interaction with evidence. In such cases,

interference is not thrusted unless perversity is detected in the

decision­making process.

15. It is thus a well crystalized principle that if two views are

possible, the High Court ought not to interfere with the trial Court’s

judgment. However, such a precautionary principle cannot be

overstretched to portray that the “contours of appeal” against acquittal

under Section 378 CrPC are limited to seeing whether or not the trial

Court’s view was impossible. It is equally well settled that there is no

bar on the High Court’s power to re­appreciate evidence in an appeal

against acquittal11. This Court has held in a catena of decisions

(including Chandrappa v. State of Karnataka12 , State of Andhra

Pradesh v. M. Madhusudhan Rao13 and Raveen Kumar v. State of

Himachal Pradesh14,) that the CrPC does not differentiate in the

11
Sangappa v. State of Karnataka, (2010) 3 SCC 686, ¶ 10.
12
(2007) 4 SCC 415, ¶ 42.

13

(2008) 15 SCC 582, ¶ 20 – 21.

14

2020 SCC OnLine SC 869, ¶ 11.

Page | 12
power, scope, jurisdiction or limitation between appeals against

judgments of conviction or acquittal and that the appellate Court is

free to consider on both fact and law, despite the self­restraint that

has been ingrained into practice while dealing with orders of acquittal

where there is a double presumption of innocence of the accused.

16. The trial Court in the instant case rightly observed that the

evidence was chaotic with regard to many accused persons and no

definite view could be formed regarding their participation. The High

Court also shared the view of the trial Court and expressed concern

regarding the exaggerations and contradictions within the evidence.

Keeping in mind the attempts by the prosecution witnesses to

implicate numerous people, the High Court delineated the strands of

consistent evidence against some of the accused which were

overlooked by the trial Court amid the chaos. While analysing the

witness statements and other evidence, we will now consider whether

the High Court did so correctly.

17. Complainant Netar Singh (P.W.1), deposed that when the

accused persons broke open the door and entered their house, Budhi

Singh, Achhar Singh, Narinder Singh were armed with axes, Prakash

had a spear, Sodha Ram had a sickle and other accused (Jai Singh

and Hem Singh) were bearing sticks. While mentioning the present

appellants he said that “Budhi Singh accused gave two axe blows on

Page | 13
the head of my mother, while Narender accused gave two axe blows

one above the left ear and second below the left ear of my mother, and

my mother Swari Devi died on the spot… Achhar Singh and Sodha also

gave blows of drat and axe to my father. As a result of the beatings my

father became unconscious and fell down. Hem Singh and Jai Singh

accused gave me danda blows”. It was also mentioned that the

accused had broken the door, windows and utensils. He then

described how he went to the Pradhan’s house at 2:00 AM and later to

the far away police station (Jogindernagar) on foot and lodged the FIR

at about 8­9 AM the next morning. He also mentioned that prior

animosity existed between the parties because Budhi Singh and

Narinder Singh wanted to purchase the land where he had

constructed a house and that his father ­ Beli Ram had previously

filed a case against the accused persons in which they had been

acquitted.

18. Meera Devi – P.W.11, the daughter in law of the deceased stated

in her testimony that Budhi Singh and Narinder Singh were armed

with axes, while Prakash carried a spear and Sodha Ram carried a

sickle. She said that “Budhi Singh accused gave two blows of axe on

the head of my mother­in­law Smt. Swari Devi on which my mother­in­

law raised cry. Narinder Singh accused gave two blows of axe on the

ear of my mother­in­law and my mother­in­law fell down and died.

Page | 14
Narinder Singh gave blow from backside of the axe to Beli Ram on his

face and Achhar Singh gave blow of axe on the neck of Beli Ram. Sodha

Ram gave drat blow on the leg of my father­in­law Beli Ram…Jai Singh

and Hem Singh gave danda blow to my husband Netar Singh.” She

stated that her husband escaped to the roof, reported the matter to

the Pradhan and came back with the police the next day. Her husband

and father­in­law were taken for medical examination and her mother­

in­law’s body was sent for post­mortem. During her cross­

examination, she mentioned that the police came at about 8­9AM in

the morning.

19. Injured witness, Beli Ram (P.W.12) was also examined and he

stated that Budhi Singh, Narinder and Achhar Singh came bearing

axes, while Prakash had a spear, Sodha Ram had a sickle and Jai and

Hem Singh were armed with sticks. While describing the attacks, he

said that “Budhi Singh gave two blows of axe on the head of my wife,

Swari Devi and two blows of axe were given by Narinder near the ear of

my wife and my wife died on the spot. Achhar Singh accused gave axe

blow on the backside of my head while Sodha accused gave drat blow

on my leg….Netar Singh was given beatings by Jai Singh and Hem

Singh with danda and stones.” He added that his son escaped through

the roof. It was mentioned that the accused persons had formed a

committee to boycott them and thus nobody from the village gave

Page | 15
evidence in their favour. He also disclosed that “Narinder Singh

accused also gave blow blunt side of the axe on my face near ear.”

Thereafter, he fell unconscious and was medically examined at the

hospital.

20. Dr. DD Rana, who conducted the post­mortem of the deceased

and medically examined the injured (Netar Singh and Beli Ram) was

examined as P.W.3. with regard to Swari Devi, he described one

incised wound on the left temporal region, which he stated, could have

been caused by the axe shown in Court. On medically examining Beli

Ram, he stated that he found incised wounds on the face and the back

of his skull, a lacerated wound on the right foot, fracture in the facial

bone and a black eye. He said that the incised wounds were possible

by the axe shown in Court and the rest were possible by stick blows.

During cross­ examination, he added that the incised injuries on Beli

Ram could be inflicted by falling on a sharp­edged stone and other

injuries were possible from falling on a hard surface. After medically

examining Netar Singh (P.W.1), he is stated to have found abrasions

on the right foot, left leg and forehead. He added that such injuries

were possibly a result of stick blows and could also be from a fall.

21. A meticulous reading of the above statements makes it clear that

even if the exaggerations of multiple axe blows being given to the

deceased were discarded, the allegation that Budhi Singh entered the

Page | 16
house of the victims armed with an axe and hit Swari Devi on her

head, and that Swari Devi died due to a head injury was consistent

and undisputed throughout the FIR and the deposition by prosecution

witnesses. The same is also supported by the post­mortem report

stating one fatal injury to the head by a sharp­edged weapon and the

medical officer’s testimony that her injury could have been caused by

the axe shown in Court. Considering this, the trial Court’s confusion

as to who caused Swari Devi’s fatal injury was unwarranted and

uncalled for.

22. The fact that Budhi Singh executed an axe blow on Swari Devi’s

head knowing fully well that an axe blow on an old woman’s vital body

part would in all probability cause her death, justifies his conviction

for the offence under Section 302 IPC. As for Achhar Singh, we find

that the injuries sustained by Beli Ram (incised wounds on the face

and posterior skull along with fracture in the facial bone) being a

combination of grievous and simple injuries were opined to have been

caused by both sharp and blunt edged weapons. Considering that all

the witnesses have been consistent about Achhar Singh’s attack on

Beli Ram with an axe, his conviction under Sections 326 and 323 IPC

cannot be found faulty and deserves to be upheld.

23. The appellants’ contention that the testimony of P.W.1, P.W.11

or P.W.12 was wholly unbelievable and inconsistent with the evidence

Page | 17
of the Doctor (P.W.3) and the post­mortem report, is unacceptable. As

noticed earlier, the prosecution witnesses have given an over­

exaggerated version of the injuries suffered by the deceased. They

have, however, consistently deposed that the head injury which proved

to be fatal, was caused by Budhi Singh. Their statement, to this

extent, is consistent and in conformity with the medical evidence on

record. Despite the fact that the presence of many persons inside the

room of occurrence created chaos and some of such persons were

bystanders or fence sitters, the eye­witnesses have been able to see

that the fatal blow to the deceased was caused by none else than

Budhi Singh.

24. It is vehemently contended that the evidence of the prosecution

witnesses is exaggerated and thus false. Cambridge Dictionary defines

“exaggeration” as “the fact of making something larger, more important,

better or worse than it really is”. Merriam­Webster defines the term

“exaggerate” as to “enlarge beyond bounds or the truth”. The Concise

Oxford Dictionary defines it as “enlarged or altered beyond normal

proportions”. These expressions unambiguously suggest that the

genesis of an ‘exaggerated statement’ lies in a true fact, to which

fictitious additions are made so as to make it more penetrative. Every

exaggeration, therefore, has the ingredients of ‘truth’. No exaggerated

statement is possible without an element of truth. On the other hand,

Page | 18
Advance Law Lexicon defines “false” as “erroneous, untrue; opposite of

correct, or true”. Oxford Concise Dictionary states that “false” is

“wrong; not correct or true”. Similar is the explanation in other

dictionaries as well. There is, thus, a marked differentia between an

‘exaggerated version’ and a ‘false version’. An exaggerated statement

contains both truth and falsity, whereas a false statement has no

grain of truth in it (being the ‘opposite’ of ‘true’). It is well said that to

make a mountain out of a molehill, the molehill shall have to exist

primarily. A Court of law, being mindful of such distinction is duty

bound to disseminate ‘truth’ from ‘falsehood’ and sift the grain from

the chaff in case of exaggerations. It is only in a case where the grain

and the chaff are so inextricably intertwined that in their separation

no real evidence survives, that the whole evidence can be discarded. 15

25. Learned State counsel has rightly relied on Gangadhar Behera

(Supra) to contend that even in cases where a major portion of the

evidence is found deficient, if the residue is sufficient to prove the guilt

of the accused, conviction can be based on it. This Court in Hari

Chand v. State of Delhi16 held that:

“24. …So far as this contention is concerned it must be kept in
view that while appreciating the evidence of witnesses in

15
Sucha Singh v. State of Punjab, (2003) 7 SCC 643, ¶ 18.

16

(1996) 9 SCC 112.

Page | 19
a criminal trial especially in a case of eyewitnesses the
maxim falsus in uno, falsus in omnibus cannot apply
and the court has to make efforts to sift the grain from
the chaff. It is of course true that when a witness is said
to have exaggerated in his evidence at the stage of trial
and has tried to involve many more accused and if that
part of the evidence is not found acceptable the
remaining part of evidence has to be scrutinised with
care and the court must try to see whether the
acceptable part of the evidence gets corroborated from
other evidence on record so that the acceptable part can
be safely relied upon…”

(emphasis supplied)

26. There is no gainsaid that homicidal deaths cannot be left to

judicium dei. The Court in their quest to reach the truth ought to

make earnest efforts to extract gold out of the heap of black sand. The

solemn duty is to dig out the authenticity. It is only when the Court,

despite its best efforts, fails to reach a firm conclusion that the benefit

of doubt is extended.

27. An eye­witness is always preferred to others. The statements of

P.W.1, P.W.11 and P.W.12 are, therefore, to be analysed accordingly,

while being mindful of the difference between exaggeration and falsity.

We find that the truth can be effortlessly extracted from their

statements. The trial Court apparently fell in grave error and

overlooked the credible and consistent evidence while proceeding with

Page | 20
a baseless premise that the exaggerated statements made by the eye­

witnesses belie their version.

28. As regard to the appellants’ contention that an appellate Court is

not justified in reversing the trial Court’s judgment unless it was

found to be “perverse”, it is important to point out that in the instant

case, the trial Court being overwhelmed by many contradictions failed

to identify and appreciate material admissible evidence against the

appellants. The trial Court misdirected itself to wrong conclusions.

Suffice it to cite Babu v. State of Kerala17 where this Court observed

that:

“12. …While dealing with a judgment of acquittal, the appellate
court has to consider the entire evidence on record, so as to
arrive at a finding as to whether the views of the trial court
were perverse or otherwise unsustainable. The appellate
court is entitled to consider whether in arriving at a
finding of fact, the trial court had failed to take into
consideration admissible evidence and/or had taken into
consideration the evidence brought on record contrary to
law…”

(emphasis supplied)

29. There are numerous later decisions (including Aruvelu v. State

(supra), Triveni Rubber & Plastics v. CCE18 and Basalingappa v.

17

(2010) 9 SCC 189.

18

1994 Supp (3) SCC 665, ¶ 3.

Page | 21
Mudibasappa19) where this Court has firmly held that a finding

contrary to the evidence is “perverse”. The finding of the trial Court in

ignorance of the relevant material on record was undoubtedly

“perverse” and ripe for interference from the High Court.

30. While testing the ‘possibility’ of the conclusion drawn by the trial

Court, it has to be kept in mind that neither is there a reason on

record nor have the appellants led any defence evidence to suggest as

to why Netar Singh (P.W.1), his wife Meera Devi (P.W.11) or his father

Beli Ram (P.W.12) would allow the real culprits to go scot­free and

instead falsely implicate the appellants to settle scores on trivial

issues. Rather, from the very beginning (FIR) till their last deposition,

the complainant and other two injured/eye witnesses have been

consistently accusing Budhi Singh for committing murder of Swari

Devi and Achhar Singh for grievously hurting Beli Ram. Their ocular

version is duly corroborated by the medical evidence on record. This

Court in Dalip Singh v. State of Punjab20 opined that:

“26….Ordinarily, a close relative would be the last to
screen the real culprit and falsely implicate an innocent
person. It is true, when feelings run high and there is
personal cause for enmity, that there is a tendency to
drag in an innocent person against whom a witness has

19
(2019) 5 SCC 418, ¶ 31.

20

AIR 1953 SC 364, ¶ 26.

Page | 22
a grudge along with the guilty, but foundation must be
laid for such a criticism and the mere fact of
relationship far from being a foundation is often a sure
guarantee of truth. However, we are not attempting any
sweeping generalisation. Each case must be judged on its own
facts. Our observations are only made to combat what is so
often put forward in cases before us as a general rule of
prudence. There is no such general rule. Each case must be
limited to and be governed by its own facts.”
(emphasis supplied)
This decision has been usually followed by this Court in various

cases such as, Mohd. Rojali Ali v. State of Assam21, Laltu Ghosh v.

State of West Bengal22, Khurshid Ahmed v. State of J&K23 and

Shanmugam v. State24.

31. Coming to the arguments of Learned Senior Counsel for the

appellants that since the axe was recovered from a public place it

should not have been held to be in the possession of Budhi Singh or

that an axe was also recovered from Narinder Singh (with whom parity

was sought), it is clear from the facts that this was a farming

community in rural Himachal where tools like axes are found in

everyone’s homes. The argument that the spot of incident was

doubtful as there was a blood trail outside the house as deposed by

21
(2019) 19 SCC 567, ¶ 14.

22

(2019) 15 SCC 344 ¶ 14.

23

(2018) 7 SCC 429, ¶ 29.

24

(2013) 12 SCC 765, ¶ 13.

Page | 23
P.W.16 ­ ASI Jaisi Ram, carries no force. The presence of random

blood marks elsewhere could not put in doubt the fact that the

incident happened in the house of the complainant from where the

same witness recovered sticks, blood­stained stone, glass splinters,

pieces of wood and leftover food, etc. The fact that the ASI did not find

it necessary or even material to investigate the blood marks shows

that they had no legal impact on the investigative conclusions. It is

pertinent to note that independent witness P.W.14 ­ Lauhalu Ram

also corroborated the recovery of broken pieces of the door, broken

bulb, stones, blood­stained soil etc. from the house of the

complainant.

32. Non­examination of many alleged bystanders is well­explained as

it is clear from the facts that the complainant’s family had prior

litigation with some people in the village and most of them had socially

boycotted the victim’s family. The fact that nine persons who were

initially accused in the FIR but not charge­sheeted subsequently, were

not arrayed as prosecution witnesses is understandable. It is not

necessary for the prosecution to examine every cited or possible

witness. So long as the prosecution case can withstand the test of

proof beyond doubt, non­examination of all or every witness is

immaterial.

Page | 24

33. This Court in Sarwan Singh v. State of Punjab25 was of the

view that:

“13.…The onus of proving the prosecution case rests entirely on
the prosecution and it follows as a logical corollary that the
prosecution has complete liberty to choose its witnesses if it is
to prove its case. The court cannot compel the prosecution to
examine one witness or the other as its witness. At the most, if
a material witness is withheld, the court may draw an adverse
inference against the prosecution…The law is well­settled
that the prosecution is bound to produce only such
witnesses as are essential for unfolding of the
prosecution narrative. In other words, before an adverse
inference against the prosecution can be drawn it must be
proved to the satisfaction of the court that the witnesses who
had been withheld were eyewitnesses who had actually seen
the occurrence and were therefore material to prove the case. It
is not necessary for the prosecution to multiply witnesses
after witnesses on the same point; it is the quality rather
than the quantity of the evidence that matters. In the
instant case, the evidence of the eyewitnesses does not suffer
from any infirmity or any manifest defect on its intrinsic
merit…”
(emphasis supplied)

34. Similarly, the doubt cast on the actual time of death relying on

P.W.3 ­ Dr. D.D. Rana’s statement does not inspire confidence as he

besides stating that the time between the death and the post­mortem

was ‘within 10 hours’, has also deposed that the time between the
25
(1976) 4 SCC 369, ¶ 13.

Page | 25
death of Swari Devi and the injury was ‘within 5­10 minutes’, thereby

supporting the prosecution witnesses who deposed that she died on

the spot owing to the injuries.

35. Coming to the case of Narinder Singh, whose acquittal has been

upheld by the High Court also, it is imperative to point out that the

FIR, though not an encyclopedia of the entire incident, is the most

spontaneous account of it. It is very hard to believe that the

complainant who walked seven hours overnight to reach the police

station to record his account of the incident would forget to mention a

fatal attack with a deadly weapon on his deceased mother by Narinder

Singh as well. Such a major omission on the complainant’s part is

very material to contradict his testimony in Court with regard to his

belated allegations against Narinder Singh. The medical evidence has

also not substantiated such allegations against Narinder Singh. The

High Court has only acted on consistent and corroborated evidence

against Budhi Singh and Achhar Singh which was conspicuously

missing in the case of Narinder Singh.

36. Likewise, the contention relying on P.W.11’s statement that the

police could not have arrived before the FIR was filed does not defeat

the case of the prosecution as it is a minor contradiction considering

that P.W.16 ­ ASI Jaisi Ram has deposed that he reached the house of

the complainant at 1PM on 24.02.1996. The argument that there was

Page | 26
no reason for Budhi Singh to start a fight with his neighbours on the

day of his daughter’s wedding also does not help the appellants. The

High Court has specifically pointed out that his daughter’s wedding

was solemnized two days prior to the date of the incident and there is

no credible evidence as to whether a wedding function was underway

at the relevant time. Even Budhi Singh has not said so in his

statement under Section 313 CrPC.

37. In light of the above discussion and upon an in­depth reading of

the trial Court and High Court records, we are convinced that the High

Court was merited to interfere with the perverse findings of the trial

Court and has prevented miscarriage of justice by separating grain

from the husks leading to the conviction of the appellants.

CONCLUSION:

38. For the above­stated reasons, the appeals are dismissed. Achhar

Singh’s conviction under Sections 452, 326 and 323 IPC and Budhi

Singh’s conviction under Sections 302 and 452 IPC by the High Court

Page | 27

39. are maintained. Their bail bonds are cancelled and they are

directed to undergo the remainder of their sentence.

……………………….. CJI.

………………………… J.

(SURYA KANT)

…………………………. J.

(ANIRUDDHA BOSE)
NEW DELHI
DATED : 07.05.2021

Page | 28



Source link