Amar Singh vs The State (Nct Of Delhi) on 12 October, 2020


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Supreme Court of India

Amar Singh vs The State (Nct Of Delhi) on 12 October, 2020

Author: Krishna Murari

Bench: A.M. Khanwilkar, B.R. Gavai, Krishna Murari

                                                                                     REPORTABLE
                                         IN SUPREME COURT OF INDIA
                                      CRIMINAL APPELLATE JURISDICTION
                                      CRIMINAL APPEAL NO. 335 OF 2015
         AMAR SINGH                                             ……..         APPELLANT (S)

                                                       VERSUS

         THE STATE (NCT OF DELHI)                               ……..         RESPONDENT (S)

                                                        WITH

                                       CRIMINAL APPEAL NO. 336 OF 2015

         INDERJEET SINGH                                        ……..         APPELLANT (S)

                                                       VERSUS

         THE STATE (NCT OF DELHI)                               ……..         RESPONDENT (S)

                                                    JUDGMENT

KRISHNA MURARI, J.

These two appeals are directed against the impugned judgment and order dated

09.05.2014 passed by the High Court1 dismissing the criminal appeal filed by the

appellants challenging the order of conviction against them whereby the appellants

were convicted under Section 302 IPC r/w Section 34 IPC. One of the accused–

appellant, Inderjeet Singh, was also held guilty and convicted under Section 27 of the

Arms Act and were sentenced to undergo imprisonment for life and a fine of

Rs.5000/- each, in default of payment to undergo Simple Imprisonment for 3 months.

Accused–appellant, Inderjeet Singh, was also sentenced to Rigorous Imprisonment
Signature Not Verified

for one year under Section 27 of the Arms Act and this sentence was to run
Digitally signed by
NEETU KHAJURIA
Date: 2020.10.12
16:45:01 IST
Reason:

concurrently with the sentence already awarded to him under Section 302 IPC.
1High Court of Delhi

1

2. In brief the prosecution case is that on 03.08.1990, on receipt of DD No. 18-A,

SI Joginder Singh along with SI Gian Singh, Constable Jai Singh and Constable

Narender Pal reached Sukhdev Market on the street which goes to Qumayun

Restaurant, where near House No. H-801 a crowd was gathered and they came to

know that injured had been removed to AIIMS in a PCR vehicle. Leaving Constable

Narender Pal at the spot, SI Joginder Singh along with other police officials reached

AIIMS, where he came to know that injured Devinder Singh @ Ladi was declared as

‘brought dead’. Two brothers of the deceased, namely, Parminder Singh and Amar

Singh, were found present in the hospital. Parminder Singh gave his statement to SI

Joginder Singh to the effect that he has six brothers and his three brothers, namely,

Harinder Singh, Ravinder Singh and Rajinder Singh reside with his mother Smt.

Prakash Wati at House No.826/5, Arjun Nagar. His eldest brother Amar Singh resides

at House No.15/88, Geeta Colony along with his family and he along with his family

resides at 53/F, D-12 Area, Sector 4, Bangla Sahib Marg, New Delhi. His sister Saroj

resides at 98-A Baba Kharak Singh Marg along with her family. About three years

ago, one person namely Khazan Singh had been murdered and his brother Devinder

Singh @ Ladi had been arrested for his murder and a case for murder was pending

against him. He was released on interim bail from the Court and used to reside with

his sister Saroj. On 3.8.1990 Devinder Singh @ Ladi came to the house of his mother

and his other brother Amar Singh also reached there and they had their meals together.

At about 10:00 PM, Parminder Singh along with his brothers, Devinder [email protected] Ladi

and Amar Singh left the house for going to their respective houses. They were

moving on foot towards taxi stand situate in Sukhdev Market. He and Amar Singh

were about ten paces ahead of Devinder Singh @ Ladi . At about 10:10 PM, when

2
they reached near the corner of Sukhdev Market, they heard Devinder Singh @ Ladi

raising an alarm ‘Bachao-Bachao’ and on turning back, they saw that Amar Singh, S/o

Likhi Chand and Shiv Charan, S/o Pooran Chand were giving hockey blows and one

Inder Singh, S/o Khazan Singh was giving knife blows to Devinder Singh @ Ladi.

His brother Devinder [email protected] Ladi fell on the ground and Inderjeet Singh gave him

many knife blows. When they tried to rescue their brother, all the above three accused

persons brandished their knife and hockeys and warned that whosoever will come to

save Devinder Singh, they will also kill him. Thereafter all of them ran towards

Bhisham Pitamah Marg, his brother Devinder Singh became unconscious. Many

persons including Sujan Singh, S/o Ram Singh assembled there. After sometime, PCR

van came and removed Devinder Singh to AIIMS, where he was declared dead by the

Doctor.

3. On this statement, a case was got registered and investigation was conducted

by Inspector Richpal Singh. During investigation, Inspector got the spot

photographed, prepared site plan, seized one broken piece of hockey, one pair of dirty

white shoes, one steel strip, sample blood, blood stained earth, sample earth from the

spot. Inspector also seized the blood stained clothes of Amar Singh and Parminder

Singh, got conducted the post mortem on the dead body of the deceased, recorded the

statement of witnesses and collected the post mortem report. Inspector arrested the

accused persons and recorded the disclosure statement of accused Inderjeet Singh @

Inder, who got recovered the knife, which was used to commit the murder. Inspector

also recorded the disclosure statements of accused Amar Singh and Shiv Charan, who

got recovered the hockeys, used in commission of offence. The recovered items were

3
sealed separately in pulandas and were sent to CFSL. After completion of

investigation, challan under Section 302/506/34 IPC was filed in the Court of

concerned Metropolitan Magistrate, who committed this case to the Court of Sessions.

All the accused persons pleaded not guilty to the charge framed against them and

claimed trial. Accused Inderjeet Singh was separately charged for an offence under

Section 25 and 27 of Arms Act.

4. In order to substantiate its case, prosecution had examined 27 witnesses in all.

All the incriminating evidence was put to the accused persons while recording their

statements under Section 313 Cr.P.C., wherein they totally denied the case of the

prosecution.

5. The Trial Court came to the conclusion that the prosecution had brought home

the guilt of the accused persons and accordingly convicted them for murder

punishable under Section 302 IPC r/w Section 34 IPC and sentenced them to Life

Imprisonment. Aggrieved by the same, the accused appellants filed an appeal before

the High Court. However, during the pendency of the appeal before the High Court,

appellant Shiv Charan, expired on 12th April, 2008 and accordingly the proceedings

against him were abated.

6. The case set up by the appellants before the High Court was that there was

unexplained delay not only in the lodging of the First Information Report but also in

despatching a copy of the same to the jurisdictional magistrate. In the absence of any

cogent and acceptable explanation for the delay, the prosecution case was rendered

4
doubtful. It was further contended that although prosecution case is alleged to be

based on eye witness on account of the incident, however, Amar Singh PW-11, and

PW-5, did not support the prosecution case and thus it was not safe to rely upon the

solitary evidence of the sole remaining eye witness Parminder Singh PW-1. It was

further pleaded that the conduct of Parminder Singh PW-1 is highly unnatural which

makes his presence on the spot at the time of the incident doubtful. It was pointed out

that no effort was made to take his injured brother to the clinic of Doctor Bhardwaj,

which was just nearby. Amar Singh PW-11, who was declared hostile stated in his

evidence that there was darkness at the time of the incident and nobody recognised the

accused persons who have been falsely implicated. It was also contended that another

eye witness Sujan Singh PW-5 has also not supported the prosecution case at all. The

defence also drew the attention of the Court to MLC of the deceased Ex. PW-17/A to

show that first the name of the injured was written as unknown and thereafter the

name of Devinder Singh has been written by overwriting and in the column

maintained for recording the name and relation of who brought the injured, name of

Head Constable, Dharam Singh PCR is mentioned and again later on ‘brothers’ has

been added. It was also submitted that the solitary eye witness is a close relation of a

deceased and thus it is not safe to rely upon his sole testimony which is not

corroborated.

7. It was further submitted that father of the appellant Inderjeet Singh was

murdered and deceased Devinder Singh was facing trial for the murder and was out on

bail and since the victim was accused of murdering the father of the appellant, the

5
brothers of the deceased victim had clear motive to falsely implicate the appellants in

this case.

8. Arrest of the accused persons and subsequent recovery at their instance was

also challenged on the ground that there is no independent witness to the recovery and

police officials are giving different versions. The defence also pointed out that the

knife which was recovered had a blunt tip, as such, the injuries as mentioned in the

post mortem report were not possible to be caused by the said knife. Even, this knife

was not shown to the doctor to seek his opinion whether injuries were possible by the

said blunt knife or not. Recovery of hockey at the instance of the appellant was not

even believed by the Trial Court.

9. However, the High Court finding that the impugned judgment does not suffer

from any infirmity or perversity which calls for interference, dismissed the appeal.

10. We have heard learned counsel for the appellants, learned counsel for the

State-Respondent and learned counsel for the respondent.

11. Shri Dushyant Dave, Learned Senior Counsel for the appellants submitted that

the entire incident appears to be inherently improbable. It is also pointed out that

conduct of PW-1 alleged eye witness either at the time of the incident or immediately

thereafter is not natural and does not inspire confidence which makes his presence on

the spot extremely doubtful. The other two eye witnesses have turned hostile and

nothing could be elicited from their cross-examination by the prosecution. It was

6
further submitted that the conviction and sentence of the appellants based upon the

sole testimony of one eye witness, whose conduct was unnatural and inconsistent with

the ordinary course of human nature making his presence at the site of incident

extremely doubtful, is highly unsafe without corroboration from other piece of

evidence.

12. Ms. Aishwarya Bhati, Learned Senior Counsel appearing for the State

vehemently contended that two Courts have recorded concurrent finding of guilt of the

accused appellants based on the testimony of an eye witness which they found to be

reliable and there exists no legal impediment for conviction on the basis of the same.

She further submitted that evidence of a hostile witness is not to be discarded as a

whole and relevant parts thereof which are admissible in law can be relied upon by the

prosecution. She further submitted that the conviction cannot be assailed merely

because of some lacuna in investigation and any failure or omission of the

investigating officer cannot render the prosecution case doubtful or unworthy of

belief, in a case where the prosecution case is fully established by direct testimony of

eye witness duly corroborated by medical evidence.

13. We have considered the rival submissions and carefully perused the record.

14. The prosecution apart from other formal witnesses produced three eye

witnesses in support of its version, namely, Parminder Singh PW-1, Amar Singh PW-

11, the two brothers of the deceased and Sujan Singh PW-5. PW-11 and PW-5 turned

hostile. PW-11 was cross-examined by the prosecution. He simply denied having seen

7
the accused persons giving blows to his brother. He also denied having stated to the

police that he saw accused appellant Inderjeet Singh inflicting knife blows. He also

denied having stated to the police that he ran to rescue his brother. He also stated that

he was not able to see the faces of the culprits because of the darkness and thus cannot

say, if, the accused persons are the same person, who killed his brother. This alleged

eye witness specifically denied having told the police that the three accused had

murdered his brother and he had identified them as culprits.

15. Similarly, the other eye witness PW-5 produced by the prosecution denied

having seen two boys armed with hockey sticks and one boy holding knife attacking

another boy. He also denied having identified the three accused. He stated that while

he was passing outside the house of Doctor Bhardwaj there were 4-5 persons standing

there and it was from them he came to know that person outside the house of Doctor

Bhardwaj was dead. This eye witness also denied having seen the incident. He was

cross-examined by the prosecution but nothing could be elicited therefrom.

16. Thus the finding of guilt of the two accused appellants recorded by the two

Courts below is based on sole testimony of eye witness PW-1. As a general rule the

Court can and may act on the testimony of single eye witness provided he is wholly

reliable. There is no legal impediment in convicting a person on the sole testimony of

a single witness. That is the logic of Section 134 of the Evidence Act, 1872. But if

there are doubts about the testimony Courts will insist on corroboration. It is not the

number, the quantity but quality that is material. The time honoured principle is that

evidence has to be weighed and not counted. On this principle stands the edifice of

8
Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth,

is cogent, credible and trustworthy or otherwise (see Sunil Kumar V/s State

Government of NCT of Delhi)2.

17. This case primarily hinges on the testimony of sole eye witness, Parminder

Singh PW-1, brother of the deceased. As already discussed above conviction can be

based on the testimony of a single eye witness so long he is found to be wholly

reliable. In the light of the settled legal principles we proceed to examine the

testimony of Parminder Singh PW-1 and also his conduct at the time of the incident.

18. According to his own testimony on the fateful night at about 10:00 PM, the

three brothers (Parminder Singh PW-1, Amar Singh PW-11 and deceased Devinder

Singh @ Ladi) left the Mother’s house for their respective houses. Parminder Singh

and Amar Singh were walking a few paces ahead of Devinder Singh @ Ladi when

they heard him shouting ‘Bachao-Bachao’ when they turned around they found three

persons attacking their brother Devinder Singh @ Ladi. Accused Inderjeet Singh was

armed with a knife while accused Amar Singh and Shiv Charan were armed with

hockey sticks. He further stated that he recognised all the three accused from before

and when they try to intervene all the three persons aimed their weapons at them and

threatened to kill. Due to assault Devinder Singh @ Ladi fell down on the ground and

became unconscious and thereafter the accused persons fled from the place. He also

stated that while they were taking care of the injured brother the police van arrived at

the spot in which Devinder Singh @ Ladi was removed to the Hospital where he was
_________________________________

2. (2003) 11 SCC 367.

9
declared brought dead. During the cross-examination he stated that entire incident

barely lasted five minutes and they did not make any complaint to the police but the

police came of its own after about 15 minutes of the incident. He had also admitted in

the cross- examination that he did not inform his mother though she was living nearby.

He also stated that he and his brother Amar Singh went to the Hospital with injured

Devinder Singh @ Ladi in the PCR van. He also stated that he informed the Doctor

who examined Devinder Singh @ Ladi as to the manner in which he sustained

injuries. He also stated that Devinder Singh @ Ladi sustained injury on his head on

account of hockey blows however he did not bleed from his head.

19. The unnatural conduct of Parminder Singh PW-1 and Amar Singh PW-11 the

two brothers of the deceased which we have noticed from record is that though they

claim to be present at the time of occurrence no attempt was made by them to save

their brother from assault. Though PW-1 has tried to explain in his examination in

chief that when they tried to intervene and save their brother Devinder Singh @Ladi

all the three accused persons aimed their weapons at them and threatened that in case

they intervened they would also be killed. It may be relevant to notice that Amar

Singh PW-11 neither in statement in chief nor in his cross-examination by the

prosecution after being declared hostile stated about any efforts made either by him or

by PW-1 Parminder Singh to save their brother Devinder Singh @ Ladi when he was

attacked. On the contrary PW-11 stated in his examination in chief that he was not

able to run because of his spinal injury. In the cross-examination he categorically

stated that he never told the police that when they tried to rescue Accused Inderjeet

Singh brandished the knife and accused Amar Singh and Shiv Charan brandished

10
hockey towards them threatening to kill anyone who comes to rescue Devinder Singh

@ Ladi. He also denied in the cross-examination having ever being given any

statement to the police that he had identified the culprits or accused Inderjeet Singh

has stabbed with knife and accused Amar Singh gave hockey blows and the front

portion of the hockey had broken because of assault and the 3rd accused Shiv Charan

also gave hockey blows.

20. The assailants were only armed with hockey sticks and a knife and not with any

fire arms. It seems very unnatural that two brothers present on the spot will not even

make slightest attempt to intervene and try to save the other brother being assaulted,

merely on the threat extended by the assailants armed with hockey sticks and a knife.

This unnatural conduct totally against natural human behaviour casts a serious doubt

of shadow on the presence of eye witness on the spot at the time of occurrence.

Moreover the facts stated by PW-1 Parminder Singh in this regard, as already

discussed above, has not been corroborated by the other brother Amar Singh PW-11.

21. The other unnatural conduct of two brothers PW-1 and PW-11 just after the

incident again makes their presence on the spot extremely doubtful. There was a

medical clinic of Doctor Bhardwaj just nearby the place of incident and the first

endeavour of the two brothers would have been to take injured brother to the clinic for

immediate medical aid or try and get some medical aid fro m the clinic of Doctor

Bhardwaj. Admittedly, according to the statement of Parminder Singh PW-1 PCR Van

arrived after about 15 minutes. During this period no effort was made to either take

11
the injured brother to the clinic or to call Doctor Bhardwaj for some first aid. This is

totally against normal human behaviour.

22. Further no effort is alleged to have been made to either shift the injured to any

hospital or even inform the police. It is highly unnatural that two real brothers made

no efforts to save the life of third brother who was severely injured if they were

present at the place of the incident. The PCR van is stated to have arrived after 15

minutes on the basis of information given by some unknown person regarding a

person lying injured in front of Qumayun Hotel. PW-20 lady constable Renu in her

evidence stated that on the fateful night she was posted at PCR Van when at about

10:27 PM an unknown person made a call to inform that one man was lying

unconscious near Qumayun Hotel, Defence Colony which was registered as DD No.-

493. It was on the information given by an unknown, the PCR Van reached at the site

of the incident and shifted the injured to AIIMS where he was declared brought dead.

23. According to the prosecution story the two brothers, namely, Parminder Singh

PW-1 and Amar Singh PW-11 accompanied the injured to the Hospital in the PCR Van

and were present during his medical examination. However, a perusal of the MLC Ex.

PW-17/A filed in Volume-II of additional document goes to show that in the column

meant for recording name initially unknown is mentioned and subsequently Devinder

Singh @ ladi has been recorded. Likewise in the column made for recording the name

of relative or friend initially Head Constable ‘Dharam Singh’ is entered and after

recording the words ‘V/C’ V-89 PCR No. 1008/PCR in the second line words ‘and

brothers’ appears to have been added.

12

24. This in itself casts serious doubts of shadow on the prosecution story that two

brothers of the deceased, namely, Parminder Singh PW-1 and Amar Singh PW-11

were present on the spot and accompanied the injured in PCR Van to AIIMS. Had it

been so, naturally, they would have given the name of the deceased and their own

names which would have been recorded in the MLC Ex. PW-17/A at the first instance.

Doctor Romesh Lal PW-17/A who prepared the MLC stated in his evidence that one

dead body was brought in the casualty of AIIMS by Head Constable Dharam Singh

having multiple sharp deep injuries all over the body and he prepared the MLC PW-

17/A.

25. The facts discussed hereinabove makes the presence of eye witness at the place

of occurrence all the more doubtful and highly improbable. Since there are serious

doubtful aspects in the conduct of PW-1 Parminder Singh and his conduct does not

appear to be natural it would not be safe to accept his evidence without corroboration

more particularly when two other eye witnesses, one being a real brother of the

deceased has turned hostile.

26. Further, there is material discrepancy between ocular testimony and medical

evidence. Post-Mortem on the dead body of the deceased Devinder Singh @ ladi was

conducted by Doctor M. S. Sagar PW-21. On external examination following anti

mortem injuries were noticed:-

1. Multiple contusions and abraded contusions over both forearms, both
arms and dorsum of both hands.

2. CLW on right periauricular region of size 3 cm x 2 cm x 0.5 cm.

13

3. Contusions right mandibular region extending to neck of size 6 cm x
3 cm.

4. Incised wound on the right side of forehead 1 cm below hairline of
size 1.5 x 1 cm superficial.

5. Incised wound left upper limb vertically placed of size 1.5 x 1 cm x
muscle deep with clean cut inverted margins.

6. Incised wound left knee of size 5 cm x .5 cm x bone deep with clean cut
inverted margins.

7. Incised wound left forearm round elbow of size 1 cm x 1 cm margins
clean cut and everted.

8. Incised wound left forearm placed 6 cm below elbow joint of size 2.5
x lx bone deep, with clean cut inverted margins, with cut
impressions present on the olecraenon.

9. Incised wound left forearm anterio-medical aspect placed 5 cm
below cubital fossa of size 1.5cm x 1cm x muscle deep with clean cut
inverted margins underline subcutaneous tissue and muscle clean cut.

10. Incised wound right side of abdomen placed 10 cm below coastal
margins in mid axillary plane 3 cm x 1 cm into muscle deep obliquely
placed, margins clean cut, not penetrating the abdominal cavity.

11. Stab wound right side of chest anterior axillary plane obliquely
placed of size 3.5 cm x 1 cm, 22 cm below cavicular with clean cut
everted margins passing through 7th intercoastal plane entering into left
lower lobe of lung going into pericardium with presence of hemo-
pericardium and incised wound left pentricle around apex of size 2 cm
x 1.5 cm x whole thickness of ventricle.

12. Stab wound of size 4 cm x 1 cm x skin deep placed transversely 8 cm
below injury no. 11.

13. Incised wound 1 cm x 1 cm with clean cut inverted margins placed 2
cm lateral and 1.5 cm below injury no. 12.

14. Stab wound left side of abdomen in posterior axillary line placed 25 cm
below clavicular margins of size 4 cm x 1 cm going into abdominal
cavity producing multiple incised wound of small and large intestines.

15. Incised wound of size 4 cm x 1.5 cm in left side of abdomen 6 cm
below and 2 cm medial to injury no. 14.

14
Internal examination of the deceased revealed:-

There were homo-thorax on left side with about 500 cc of blood being
present. There was stab wound of left lung lower lobe of size 3 cm x 1.5
cm x 4 cm. Hemo-cardium was also present with 400 cc of blood and
blood clots. There was stab wound of heart over apex of size 2.5 cm x 1
cm x whole thickness of left ventricular wall with cutting of cordae-
tendenae. In the abdominal cavity, there was hemo-periteneum about
400 cc of blood and blood clots with multiple incised wound of small
and large intestines.

It was opined that cause of death was shock as a result of multiple
antemortem injuries produced by sharp edged weapon.

Injury no.11 and 14 are sufficient to cause death in the ordinary course
of nature individually as well as collectively.

27. Thus, there are total 15 injuries inflicted by three assailants, two having hockey

sticks and one knife as per prosecution story. Parminder Singh PW-1 emphatically

stated that whole incident barely lasted five minutes. It would be practically

impossible to inflict 15 injuries of the type by three assailants simultaneously

attacking the deceased within a short span of 5 minutes particularly when the victim

being a normal healthy person naturally must have offered resistance. Inflicting 15

injuries on the body of the deceased by three accused persons would require a

considerable amount of time. This itself suggest that three accused had sufficient time

at their disposal to conduct the crime and the entire incident could not have taken

place within five minutes as stated by eye witness Parminder Singh PW-1. This fact

coupled with the fact that two brothers of the deceased remained a mute spectator

when the third brother was being assaulted is clear indication of the fact that PW-1

Parminder Singh was not present on the spot and not an eye witness of the incident.

15

28. Dr. M.S. Sagar in his Post-Mortem report has opined that the cause of death

was due to shock due to multiple ante mortem injuries caused by sharp edged weapon

and injuries No. 11 and 14 were individually and collectively sufficient to cause death

in ordinary course of nature. He further opined in his statement that injuries have been

caused by sharp edged weapon and since no weapon was shown to him, he has not

given any opinion. Admittedly the tip of knife which was recovered on the disclosure

statement of accused appellant Inderjeet Singh was broken and it was not pointed but

blunt. Whether the type of stab and incised wound found on the body of the deceased

could have been inflicted by a knife with a broken tip, is in our opinion, extremely

doubtful. The opinion of the Doctor has not been obtained as to whether such injuries

could have been caused by knife with a broken tip by showing him the same.

29. In the facts and circumstances of the case this was serious lapse on the part of

the investigating officer. Though normally minor lapses on the part of the

investigating officer should not come in the way of accepting eye witness account, if

otherwise reliable. But in the circumstances of the case at hands where the conduct of

sole eye witness is unnatural and there are various other surrounding circumstances

which make his presence at the site of incident doubtful, such a lapse on the part of the

investigating officer assumed significance and is not liable to ignored.

30. While emphasizing the importance of eliciting the opinion of medical witness

in such circumstances this Court in the case of Kartarey and Ors. V/s State of U.P.3

________________

3. (1976) 1 SCC 172.

16
has observed as under:-

“We take this opportunity of emphasizing the importance of
eliciting the opinion of the medical witness, who had examined the
injuries of the victim, more specifically on this point, for the proper
administration of justice particularly in a case where injuries found are
forensically of the same species, example stab wound, and the problem
before of the Court is whether all or any those injuries could be caused
with one or more than one weapon. It is the duty of the prosecution,
and no less of the Court, to see that the alleged weapon of the offence,
if available, is shown to the medical witness and his opinion invited as
to whether all or any of the injuries on the victim could be caused with
that weapon. Failure to do so may sometimes, cause aberration of the
course of justice”.

31. The same has been again asserted by this Court in Ishwar Singh V/s State of

U.P.4 by observing as under:-

“It is the duty of the prosecution, and no less of the Court, to see
that the alleged weapons of the offence, if available, is shown to the
medical witness and is opinion invited as to whether all or any of the
injuries on the victim could be caused with that weapon. Failure to do so
sometimes, cause aberration of the course of justice. On the basis of the
evidence on record it is difficult to say whether the injury to the deceased
was caused by the knife with a broken tip which was ceased. These
variations relate to vital parts of the prosecution case, and cannot be
dismissed as minor discrepancies. In such a case, the evidence of the eye
witness “cannot be accepted at its face value”, as observed by this Court
in Mitter Sen and others V/s State of U.P.”5

32. The conviction of the appellants rests on the oral testimony of PW-1 who was

produced as eye witness of the murder of the deceased. Both the Learned Sessions

Judge, as well as High Court have placed reliance on the evidence of PW-1 and

_________________

4. (1976) 4 SCC 355.

5. (1976) 1 SCC 723

ordinarily this Court could be reluctant to disturb the concurrent view but since there

17
are inherent improbabilities in the prosecution story and the conduct of eye witness is

inconsistent with ordinary course of human nature we do not think it would be safe to

convict the appellants upon the incorroborated testimony of the sole eye witness.

Similar view has been taken by a Three Judge Bench of this Court in the case of

Selvaraj V/s The State of Tamil Nadu6. Wherein on an appreciation of evidence the

prosecution story was found highly improbable and inconsistent of ordinary course of

human nature concurrent findings of guilt recorded by the two Courts below was set

aside.

33. On the facts of the present case it can be said without hesitation that

prosecution has miserably failed to prove the alleged offences beyond doubt by

adducing cogent and trustworthy evidence.

34. In view of the forgoing discussions, we are not able to appreciate the reason

given by the Courts below for convicting the appellants for the alleged offences. On

the contrary, we are of the considered view that prosecution has failed to establish the

guilt of the accused beyond reasonable doubt. The incident does not appear to have

happened in the manner in which the prosecution wants the Court to believe it had

happened.

________________

6. (1976) 4 SCC 343

18

35. Since, the prosecution has miserably failed to prove the guilt of the accused

beyond doubt the appellants therefore must be given benefit of doubt. In the

circumstances, we set aside the impugned orders of the Courts below and allow these

appeals. The appellants are directed to be released forthwith unless required in any

other case.

……………………………………..J.

(SANJAY KISHAN KAUL)

……………………………………..J.

(ANIRUDDHA BOSE)

…………………………………….J.

(KRISHNA MURARI)

NEW DELHI;

OCTOBER 12, 2020.

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