# STATE OF UTTARAKHAND v. DARSHAN SINGH

- **Citation:** [2019] 14 S.C.R. 338
- **Court:** Supreme Court of India
- **Decided:** 2019-11-07
- **Case number:** Criminal Appeal No. 1856 of 2013
- **Bench:** Sanjay Kishan Kaul, K. M. Joseph
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/state-of-uttarakhand-v-darshan-singh-33327
- **Pages:** 30

## Headnote

Penal Code, 1860 - ss.147, 148, 149 and 302 - Murder -
Acquittal of accused by the High Court - Prosecution case was that
PW-1, his father, mother and maternal uncle-PW-4 were going on a
tractor and PW-2 was following them on a cycle - Father of PW-1
was driving the tractor, when they found that a bullock cart had
blocked their passage - The tractor stopped near the bullock cart
- The accused persons, who were hiding, armed with pistols and
other sharp-edged weapons attacked father of PW-1 - Consequent
to which, father of PW-1 died - FIR was lodged u/ss. 147, 148, 149
and 302 IPC - The Trial Court convicted accused persons u/s.302
r/w. ss.148 and 149 IPC - However, High Court acquitted the
accused - On appeal, held: There were material variations in the
evidence of PW-1 and PW-2 - There were contradictions in the
evidence of PW-1 and PW-2 as to who wrote the report in the police
station - PW-1 stated that he, his mother, maternal uncle and one
'IS' went to the police station and report was written by 'IS' - There
was no mention of PW-2 by PW-1, however, PW-2 stated that he had
also gone to the police station and stated in his cross-examination
that report was written by PW-1 - PW-4, one of the witness, turned
hostile - PW-1, his mother, PW-4 and PW-2 after the incident did
not rush to the hospital with the victim and post-mortem report
revealed that the body reached the hospital next day in the afternoon
- These aspects strengthened the judgment of the High Court -
Another contradiction came from the testimony of PW-2, who stated
that one of the accused fired the shot from behind after climbing in
the tractor which had struck at the back of deceased whereas PW1 deposed that all the accused stood at front and all three had fired
the shot - The gunshot injury no.4 at the back of deceased remained
unexplained - Further, no role was attributed to the two accused
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338
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persons, however, when evidence opened PW-1 had gone on to
attribute specific overt act to them also - PW-2 had also stated that
he and other relatives had left the tractor at spot and had not taken
it to the police station to lodge the report as the dead body was on
it - On the other hand, according to PW-5-investigating officer, the
site of the dead body was the paddy field - Considering the apparent
variations in the evidence, the appellant was not able to make out a
case to interfere with the judgment of the High Court - Resultantly,
appeals were dismissed.
Law of Evidence - Medical and ocular evidence - discussed.
Dismissing the appeals, the Court
HELD: 1. The incident allegedly unfolded when the
deceased along with PW1, his wife, and brother-in-law (PW4) were
coming back in a tractor. The case of the prosecution further is
that the accused came forward and committed the acts attributed
to them. There is an allegation that some relatives accompanying
the deceased were sitting on the mudguard of the tractor. There
is a case for the prosecution that the deceased fell from the tractor
when PW1 was asked how he went to the Police Station to lodge
the report and whether he had taken the tractor, his answer was
that since the body of his father was lying on it, they did not take
the tractor and they went on foot. Therefore, it must be taken
that the body was on the tractor. PW5-the Investigating Officer,
on the other hand, deposed that the dead body of the deceased
was lying in the paddy field at the side of the road. PW5-original
Investigating Officer does not speak a word about the tractor.
According to PW1, the tractor was left behind as the dead body
was lying on it. As noted, PW5 speaks otherwise and the dead
body was found at the paddy field at the side of the road. Whether,
therefore, the tractor was in fact used as claimed by the
prosecution? There is no evidence regarding any investigation
conducted by the Officer in regard to the tractor. The nature and
size of the tractor remains a mystery. [Para 42][363-D-H]
2. Ther

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STATE OF UTTARAKHAND
v.
DARSHAN SINGH
(Criminal Appeal No. 1856 of 2013)
NOVEMBER 07, 2019
[SANJAY KISHAN KAUL AND K. M. JOSEPH, JJ.]
Penal Code, 1860 - ss.147, 148, 149 and 302 - Murder -
Acquittal of accused by the High Court - Prosecution case was that
PW-1, his father, mother and maternal uncle-PW-4 were going on a
tractor and PW-2 was following them on a cycle - Father of PW-1
was driving the tractor, when they found that a bullock cart had
blocked their passage - The tractor stopped near the bullock cart
- The accused persons, who were hiding, armed with pistols and
other sharp-edged weapons attacked father of PW-1 - Consequent
to which, father of PW-1 died - FIR was lodged u/ss. 147, 148, 149
and 302 IPC - The Trial Court convicted accused persons u/s.302
r/w. ss.148 and 149 IPC - However, High Court acquitted the
accused - On appeal, held: There were material variations in the
evidence of PW-1 and PW-2 - There were contradictions in the
evidence of PW-1 and PW-2 as to who wrote the report in the police
station - PW-1 stated that he, his mother, maternal uncle and one
'IS' went to the police station and report was written by 'IS' - There
was no mention of PW-2 by PW-1, however, PW-2 stated that he had
also gone to the police station and stated in his cross-examination
that report was written by PW-1 - PW-4, one of the witness, turned
hostile - PW-1, his mother, PW-4 and PW-2 after the incident did
not rush to the hospital with the victim and post-mortem report
revealed that the body reached the hospital next day in the afternoon
- These aspects strengthened the judgment of the High Court -
Another contradiction came from the testimony of PW-2, who stated
that one of the accused fired the shot from behind after climbing in
the tractor which had struck at the back of deceased whereas PW1 deposed that all the accused stood at front and all three had fired
the shot - The gunshot injury no.4 at the back of deceased remained
unexplained - Further, no role was attributed to the two accused
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persons, however, when evidence opened PW-1 had gone on to
attribute specific overt act to them also - PW-2 had also stated that
he and other relatives had left the tractor at spot and had not taken
it to the police station to lodge the report as the dead body was on
it - On the other hand, according to PW-5-investigating officer, the
site of the dead body was the paddy field - Considering the apparent
variations in the evidence, the appellant was not able to make out a
case to interfere with the judgment of the High Court - Resultantly,
appeals were dismissed.
Law of Evidence - Medical and ocular evidence - discussed.
Dismissing the appeals, the Court
HELD: 1. The incident allegedly unfolded when the
deceased along with PW1, his wife, and brother-in-law (PW4) were
coming back in a tractor. The case of the prosecution further is
that the accused came forward and committed the acts attributed
to them. There is an allegation that some relatives accompanying
the deceased were sitting on the mudguard of the tractor. There
is a case for the prosecution that the deceased fell from the tractor
when PW1 was asked how he went to the Police Station to lodge
the report and whether he had taken the tractor, his answer was
that since the body of his father was lying on it, they did not take
the tractor and they went on foot. Therefore, it must be taken
that the body was on the tractor. PW5-the Investigating Officer,
on the other hand, deposed that the dead body of the deceased
was lying in the paddy field at the side of the road. PW5-original
Investigating Officer does not speak a word about the tractor.
According to PW1, the tractor was left behind as the dead body
was lying on it. As noted, PW5 speaks otherwise and the dead
body was found at the paddy field at the side of the road. Whether,
therefore, the tractor was in fact used as claimed by the
prosecution? There is no evidence regarding any investigation
conducted by the Officer in regard to the tractor. The nature and
size of the tractor remains a mystery. [Para 42][363-D-H]
2. There are contradictions in the evidence of PWs 1 and 2
as to who wrote the report. Did PW1 himself write the report as
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claimed by PW2 in his cross-examination or was it written by
'IS', who according to PW1 wrote the report? There are
contradictory answers given by PWs 1 and 2. [Para 43][364-A]
3. If the incident had happened, as projected by the
prosecution, and PW1, his mother and PW4 were accompanying
the deceased apart from PW2 and other cyclists, would they not
immediately rush the body to the nearest hospital? In fact, from
the post-mortem report, it would appear that the body reached
the hospital only next day in the afternoon. These aspects create
doubts in our minds and strengthens the judgment of the High
Court further. [Para 45][364-E-F]
4. The doubt arises about the prosecution version from the
oral testimony itself. As noticed already, PW1 is already
unambiguous when he states that all the accused came at front
and all the three had fired the shots. The firing, PW1 was specific,
was done from the front. He claims that other people climbed on
the tractor. This can mean that the people who had not done the
firing and who were otherwise armed according to his version,
climbed on the tractor. In his earlier version, in the chief
examination, he, on the other hand, states that when his father
fell down, the accused armed with pistols and the other sharp
edged weapons assaulted his father. This itself manifests a
contradiction. [Para 47][364-H; 365-A-B]
5. The real contradiction comes in the form of testimony of
PW2. PW2 states that one of the accused 'R' fired the shot from
behind after climbing in tractor which had struck at the back of
deceased whereas PW1 has deposed that all the accused came
stood at front and all the three had fired the shot. This is an
inconsistency which goes to the root of the matter. If the above
version of PW1 is believed, it is the deposition of PW2 which
comes under a cloud. More importantly, injury no.4, viz., the
gunshot injury at the back remains unexplained. For this, this
Court does not have to go into the contents of the medical
evidence. It is not doubt true that that the medical evidence also
points to the injury no.4 being sustained by the deceased on his
back side. [Para 49][365-E-F]
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6. It is to be noted that in the FIR, 'R' is stated to have
fired the shot which struck at the back of the deceased. No role
has been attributed in the FIR to the two accused persons whereas
when the evidence opened, PW1 has gone on to attribute specific
overt acts to them also. While a FIR is not to be an encyclopaedia
of all that transpired, the omission to mention about actual overt
acts to the specific two accused, creates serious doubt about the
version. Further, PW2 also stated that they had left the tractor at
the spot and had not taken it to the Police Station to lodge the
report as the dead body was on it. On the other hand, the site of
the dead body is the paddy filed, according to PW5. The tractor
is not referred to by PW5. [Paras 50 and 51][366-C-E]
7. As regards the deceased falling down on being shot at
and assaulted, PW5 would state that PW1 did not tell him anything
(apparently, in the 161 statement about the fact of the deceased
falling down).[Para 52][366-F]
8. In the state of evidence, in this case otherwise, as
discussed, particularly bearing in mind the nature of the limited
jurisdiction this Court exercises qua the order of acquittal
rendered by the High Court, the appellant has not made out a
case in interfering with the impugned judgment of the High Court.
[Para 57][367-G]
The State Government, Madhya Pradesh v. Ram Krishna
Ganpatrao Limsey and others AIR 1954 SC 20; State
of Uttar Pradesh v. Guru Charan and others (2010) 3
SCC 721 : [2010] 2 SCR 1110 - relied on.
Gosu Jayrami Reddy and another v. State of Andhra
Pradesh (2011) 11 SCC 766 : [2011] 9 SCR 503;
Mangoo v. State of Madhya Pradesh AIR 1995 SC 959;
Abdul Sayeed v. State of Madhya Pradesh (2010) 10
SCC 259 : [2010] 13 SCR 311; Tehseen Poonawalla v.
Union of India and another (2018) 10 SCC 498 : [2018]
12 SCR 204 - referred to.
Case Law Reference
[2011] 9 SCR 503
referred to
Para 8
AIR 1995 SC 959
referred to
Para 8
STATE OF UTTARAKHAND v. DARSHAN SINGH
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[2010] 13 SCR 311
referred to
Para 8
AIR 1954 SC 20
relied on
Para 22
[2010] 2 SCR 1110
relied on
Para 23
[2018] 12 SCR 204
referred to
Para 38
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1856 of 2013.
From the Judgment and Order dated 02.01.2012 of the High Court
of Uttarakhand at Nainital in Criminal Appeal No. 175 of 2002.
With
Criminal Appeal No. 1857 of 2013.
Krishnam Mishra, Kamlendra Mishra, Rahul Kaushik, Advs. for
the Appellant.
Ms. N. Annapoorani, Adv. for the Respondent.
The Judgment of the Court was delivered by
K. M. JOSEPH, J.
1. Since these appeals involve the same impugned judgment of
the High Court acquitting the respondents of offences under Section
147, 148, 149 and 302 of the Indian Penal Code, 1860 (hereinafter referred
to as 'the IPC', for short), we deem it fit to dispose of the same by a
common judgment.
PROSECUTION CASE IN BRIEF
2. The complaint in this case, which led to the trial, was lodged by
one Swarn Singh-PW1. The complaint in brief is as follows:
On 22.08.1992, when he, along with his father, mother and
maternal uncle, were going on a tractor from Nanakmatta to their
village and his father was driving the tractor, when the tractor
reached one kilometre from their house, they found that a bullock
cart has blocked their passage. The tractor stopped near the bullock
cart. One of the accused-Pahalwan Singh appeared. The other
accused, along with him, were hiding near a tree. He was having
a sword in his hand. Resham Singh, who is the third respondent in
Criminal Appeal No. 1857 of 2013, had a country-made pistol in
his hands. Daleep Singh had a ballam (a sharp edged weapon),
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his son Jagir Singh carried a country-made pistol. Darshan Singh
also had a country-made pistol. Veer Singh was having a sharpedged weapon (campa). They started hurling abuses on the family
of the complainant. Resham Singh fired with his country-made
pistol. Pahalwan Singh and Darshan Singh fired with their countrymade pistol, and Veer Singh Singh with his campa, inflicted blows
on the complainant's father-Singhara Singh. He fell from the tractor
and died. On raising alarm, all the accused fled away on the bullock
cart. The complainant, his father and maternal uncle did not dare
to fight the assailants.
3. The First Information Report (FIR) came to be lodged under
Sections 147, 148, 149 and 302 of the IPC. The Trial Court framed
charges under Sections 147, 148, 302 read with 149 of the IPC. Separate
charges were also framed under Section 25 of the Arms Act,1959
(hereinafter referred to as 'the Arms Act', for short). PWs 1 to 6 were
examined from the side of the prosecution. Statements of the accused
were taken under Section 313 of the Code of Criminal Procedure, 1973
(hereinafter referred to as 'the Cr.PC.', for short).
4. The Trial Court convicted Pahalwan Singh, Resham Singh,
Daleep Singh, Veer Singh and Darshan Singh for offences under Sections
302 read with 148 and 149 of the IPC. Resham Singh and Darshan
Singh were acquitted of the charge under Section 25 of the Arms Act.
5. The High Court, by the impugned order, has acquitted the
accused. The judgment reveals that the following aspects weighed with
the High Court in its decision to acquit the accused:
i.
There were material variations in the evidence of PWs 1
and 2.
ii.
PW2 was not a non-partisan witness. He is distantly related
to the informant.
iii.
PW4 is none other than maternal uncle referred to by the
complainant as having travelled along with him on the
tractor. He has turned hostile and has not supported the
prosecution version.
iv.
The case of the prosecution that after the firing and the
inflicting the wound injuries on the deceased, the accused
fled away in the bullock cart, could not be believed.
STATE OF UTTARAKHAND v. DARSHAN SINGH
[K. M. JOSEPH, J.]
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v.
PW1 deposed that the lights of the tractor were on. PW2,
on the other hand, deposed that the bulb of the tractor was
off.
vi.
Injury no.4 was a gunshot wound on the left side of the
back of the deceased.
vii.
According to prosecution evidence, accused blocked the
way of the tractor and accused fired while standing in front
of the tractor. There was material inconsistency between
ocular and medical evidence in this regard.
viii.
It is noticed by the High Court that PW3-Doctor, in his
evidence, does not support the case of the prosecution.
ix.
The High Court noticed, according to the prosecution
evidence, that the deceased was driving the tractor and his
close relatives, viz., his wife, the complainant, who has been
examined as PW1, and maternal uncle, were travelling along
with the accused. However, none of the relatives, who were
sitting on the tractor and on the mudguard, have suffered
any injuries. This also persuaded the High Court to acquit
the accused.
 6. We have heard the learned counsel appearing for the State/
appellant and the learned counsel appearing for the accused/respondents,
in both the appeals.
7. The learned counsel for the State has pointed out that respondent
no. 2, in Criminal Appeal No. 1857 of 2013, has passed away and we
have also taken note of the same in our order dated 28.08.2019 that the
appeal stands abated as against him.
8. The learned counsel for the State would contend as follows:
(i)
There was no actual inconsistency in the ocular evidence
of PW1 and medical evidence. He has maintained that
accused-Resham Singh has fired shot which hit the
deceased at the back.
(ii)
Merely on account of minor contradictions in the statement
of PW1 and medical evidence depicting the injuries, High
Court ought not have interfered in the matter, having regard
to the nature of the injuries inflicted, the recovery of the
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weapons and the conclusion in the FSL Report, which fully
corroborates the case of the prosecution.
(iii)
PW1-son of the deceased was only 17 years of age at the
time of the incident. The court may bear in mind that this is
a case where accused ambushed them and carried deadly
weapons hurling threats. Meticulous narrative of the
incident, in such circumstances, may not be insisted upon.
He relied upon judgment of this Court in Gosu Jayrami
Reddy and another v. State of Andhra Pradesh1 and Mangoo
v. State of Madhya Pradesh2.
(iv)
At the place of the incident., an empty cartridge of 12-bore
pistol was recovered by the Investigating Officer. A
recovery was effected from the accused on the basis of
statement by the accused including the 12- bore pistol. FSL
Report states that the shot has been fired from the 12-bore
pistol which was recovered. The High Court has not found
the recovery to be vitiated. This means that recovery can
be acted upon.
(v)
There is no material for the inconsistency between the
evidence of PWs 1 and 2. The only variation is that PW2
has deposed that Resham Singh has climbed up to the tractor
and fired the shot which caused injury no.4 on the back of
the body of the deceased. In this regard, he relied upon
judgment of this Court in Abdul Sayeed v. State of Madhya
Pradesh3 to contend if there is inconsistency between ocular
and medical evidence, ocular evidence must prevail unless
medical or scientific evidence completely renders impossible
action upon ocular testimony.
(vi)
The statement of PW1 that the shots were fired from 5-7
steps from near the bullock cart, was also explained, as
found by the Trial Court, by holding that PW1 was describing
the distance between the place of the bullock cart and the
place of the shot fired.
1 (2011) 11 SCC 766
2 AIR 1995 SC 959
3 (2010) 10 SCC 259
STATE OF UTTARAKHAND v. DARSHAN SINGH
[K. M. JOSEPH, J.]
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(vii)
The FIR was lodged within three hours on 22.08.1992 itself.
The incident took place at 05.30 P.M.. The promptness,
with which the FIR was lodged, was not given the due
importance.
(viii) Lastly, the reasoning of the High Court that none of the
relatives suffered injuries, is attacked on the basis that when
the incident unfolded with the accused coming out with the
armed weapons, it would be unnatural to expect that his
relatives would have remained glued to their position. The
fact that the relatives were unhurt is consistent with their
normal behaviour when faced with assailants armed with
deadly weapons, hurling threats and firing.
9. Per contra, learned counsel for the accused would submit
that the incident is of the year 1992. She supports the order of the High
Court. Learned counsel for the accused/respondents would submit that:
a. There were four persons travelling on the tractor and only the
deceased is seen injured.
b. There is no motive established.
c. There was no connection with the ocular and medical evidence.
d. She reminds the Court that the accused have been acquitted
under the Arms Act, 1959.
10. Before we discuss the evidence, we think it appropriate to
refer to the injuries actually suffered by the deceased. PW3 is the Doctor.
The following are the injuries noted by PW3, which are noted as ante
mortem injuries besides his evidence inter alia:
"External Examination:-
One middle-aged person, upon dead body R.M. staining was present
and upon his body stiffness was there stomach was swollen and
left eye was not there. Upon the body of deceased. During body
examination following pre death injuries were found:-
(1) Cut wound 15 cm x 2 cm in the upper part of dead and dead
bone was broken.
(2) Cut wound 16 cm x 2 cm left side of the face which was
extended from behind the ear to face. Due to that larbon of
ear and bone of mandible jaw had been broken.
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(3) Cut wound 3 cm x 2 cm at right side of the face, in which
bone of right jaw had been broken.
(4) Gunshot wound entry 3 cm x 2.5 cm at left side of back 6 cm
from shoulder bone towards lower side. Upon putting prone
in that was coming toward upper side and front side. Upon
cutting the bone one tikle of plate was found blacking totem
was present. No scorching was there.
(5) Gunshot wound of entry on right side of chest which had
fractured the color bone and rib. Upon proning it was going
to backside and lower side.
(6) Cut wound 3 cm x 1⁄2 cm right side of chest in the side of
nipple.
External Examination
(1) Scull bone was broken brain membrane was torn. In the chest
third and fourth rib and fifth. Towards left and first. Second
of right side was broken. Both the lungs were torn, heart also
was torn. 16/15 teeth in the mouth were there. There was no
food in the stomach.
In my opinion death of the deceased was caused because of
shock due to pre-death injuries and excessive bleeding. At
the time of examination, Examination report was prepared
by me, which is in my handwriting and signature. It was before
me on the file. Upon this Ex. Ka 3 was put.
During body examination 2 tikle card board and 34 pallet had
removed which were sealed and was handed over to
concerned constable and clothes of deceased shirt, tahmad,
underwear, kada, kripall. Total 5 piece and police documents
and dead body was handed over to police people.
Above injuries are possible to be caused with sword, pistol,
spear and sharp weapon on 22.8.92 at 5:30 PM in the evening.
The detail of possible symptom of post-death is given above
in the column in postmortem report, 12 hrs difference in period
of death, then said, six hour difference can be, that is, death
is possible to be also in the night of 22.8.92. The shirt of
deceased was cut or not, he does not remember. The injury
STATE OF UTTARAKHAND v. DARSHAN SINGH
[K. M. JOSEPH, J.]
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No. 5 can be caused in such condition when striking person
assault by standing in height. The injury No. 4 is from down
to up side, i.e. Striking person fire the short from down side
upon injured, then above both injuries can be caused by firing
from the distance of 3 feet. The above injuries are of total
two fire. Deceased would have taken the food before 8 hours,
because in his stomach no contents were found. After 8 hrs
of having food, food is digested."
11. It was found that the skull bone was broken, brain membrane
was torn. In the chest, third and fourth rib and fifth. Towards left and
second of right side was broken. Both the lungs were torn. Heart also
was torn. 16/15 teeth in the mouth were there. There was no food in the
stomach. He says further that in his opinion, death was caused because
of shock due to pre-death injuries and excessive bleeding.
12. A perusal of the description of the injuries would show that
injuries 4-5 were gunshot injuries. The other four injuries were cut
wounds.
13. This is a case of direct evidence.
14. PW1, a 17-year old son of the deceased, has deposed, inter
alia, as follows:
He along with his father (deceased), mother and maternal
uncle were travelling in a tractor with his deceased father driving
it. A bullock cart was there on the road which was parked in the
centre. This cause them to stop the tractor. Resham Singh, Darshan
Singh, Jagir Singh with pistols in their hands and the other accused
with other deadly weapons, appeared. PW1 further says that
Resham Singh fired the shot from the pistol which struck the back
of his father and he fell down from the tractor. At that time, PW2
and one Gurdeep Singh were coming on cycles behind their tractor.
When the deceased fell down, then, Pahalwan Singh with sword,
Darshan Singh and Jagir Singh with pistol, Veer Singh and Daleep
Singh with other deadly weapons, assaulted his father. Being empty
handed, as they were not having any arms, they could not save
his father. PW1 says that he knew the accused because they
were their neighbours. There was enmity between the deceased
and the accused acted due to not getting the road constructed and
having passage.
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In the cross-examination, he, inter alia, states as follows:
He has stated in the complaint that after firing shot by
Resham Singh and falling down of his father, the other accused
had fired and assaulted. He gave same statement to the Darogaji.
He has no explanation for the statement not being in the FIR.
PW2 is married to his father's sister. He lives about 2 to 21⁄2
kilometres away from his village. Gurdeep Singh lives 10 to 12
kilometres away from his village. He is alive. After half quarter to
one hour, Police came to the spot of incident. That it was quarter
to nine. Police filled-up Panchnama at the spot which was filled in
the night. Panchnama was filled in the torch light. The Panchnama
was filled-up and PWs 1 and 2 are the witnesses to the
Panchnama. Three of the two accused were arrested on the next
day. They were Daleep Singh, Jagir Singh and Darshan Singh.
They went to the Police Station on cycles. Ishwar Singh, Preetam
Singh (PW4-maternal uncle) and the mother of the PW1,
accompanied him. Ishwar Singh is the resident of village Kisanpur
which is 7 kilometres further from his village. For lodging the
report, he went to Nanakmatta Police Station. They were coming
from Nanakmatta. From their itself, they went back to lodge the
report. Ishwar Singh was standing in the way at the house of
maternal uncle in village Sunkari which is a village adjacent to the
road. Ishwar Singh went to the Police Station with him. Ishwar
Singh lodged the report at the Police Station. He and his mother
and maternal uncle had told Ishwar Singh about the incident. House
of the accused and their house, are located nearby. Suggestion
that they had made three other persons flee from the village and
had taken possession of their land, due to which there was enmity,
was denied. There was no other tree except semal tree on the
spot. Bushes are there on both sides of the road. The Semal tree
is on the eastern side of the road. They took one hour in coming to
Nanakmatta from the village. PW1 was sitting on the right side in
the tractor. PW4-maternal uncle and father of PW1 were sitting
on the left side of the tractor. There were no rains at that time.
The bullock cart was empty. They had stopped the tractor at the
distance of 4-5 steps. The light of the tractor was burning. All the
accused came, stood at front and all the three had fired the shot.
Firing was done from the front. The other people climbed upon
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the seat of the tractor itself, assault was done with sword, spear,
etc.. His father had fallen down at the seat of the tractor itself.
Accused ran away. The shots were fired from the distance of 57 steps near to the bullock cart. The Darogaji had seen the blood
on tractor at the spot. The assaults with the sword, spear and
sabre were done one to two times. They had not taken the tractor
to the Police Station because the dead body was lying on it.
 15. PW2, who was referred to by PW1 as one of the persons
who were following them on cycle, corroborates PW1 that the deceased
was driving the tractor, and along with him, PW1, his mother and maternal
uncle were sitting. He deposes about the bullock cart. The tractor stopped.
The threat by the accused who came out, is referred to. The firing by
Resham Singh at the back of the deceased, and Darshan Singh and
Jagir Singh, firing the shots from the front, and the others assaulting are
deposed to. He claims to have gone along with PW1 to lodge the report.
The report was got written from Ishwar Singh. He has told the names of
the accused at the time of the filling of the Panchnama. He earlier says
that on the day of the incident, at the spot also, Police did the inquiry
after filling the Panchnama. At that time, Police did not enquire with him
about the incident. He denies as incorrect that the name and the address
of the accused was not known till the filling of the Panchnama, and it is
on account of that, that the name of the accused is absent in the
Panchnama. PW1 and his parents had not met him at Nanakmatta on
the day of the incident. PW4-maternal uncle also had not met. Tractor
light was not burning. All the accused were standing behind the bullock
cart, when they saw. There is a tree also nearby. After giving threat,
firing started. They were standing near in front of tractor. Resham Singh
had fired the shot from behind after climbing in tractor which had struck
at the back of the deceased. Firing was done thrice. Daleep Singh
attacked with spear. Jagir Singh attacked with spear from front in the
stomach. Veer Singh attacked with sabre from behind on the head. There
were no bushes on both sides but crop was there. Accused had struck
one-one time with sword, sabre and spear. Swarn Singh-PW1, his mother
and PW4 had gone on foot to lodged the report. He had also gone with
them on foot holding the cycle. Four people went. The report was written
sitting at the Police Station. PW1 had written the report. PW1 is educated.
Police had remained at the spot till 08.00 A.M. in the morning. It did not
rain on that day.
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16. PW4 is the maternal uncle. He, in chief examination, stated
that at 05.30 P.M., he was at home on 22.08.1992. He had not seen any
incident. In cross by prosecution, he would say that PW1 went to lodge
the report in the morning. He also came to know in the morning that the
deceased had died. PW1, Veera Kaur-mother of PW1 and Gurdeep
Singh, all came to know about the incident in the morning and had gone
near the dead body in the field and thereafter gone to file the report.
17. PW5 is the Sub-Inspector of Police. During investigation, he
deposes that he had taken the statement of PW1. He deposes about the
recovery statement by Darshan Singh which leads to the recovery of
the pistol. Likewise, on the statement of Pahalwan Singh, the sword
was recovered. Case under Section 25 of the Arms Act was registered
at 1930 hours against Darshan Singh on 23.08.1992. On 28.08.1992,
Resham Singh, Daleep Singh, Jagir Singh and Veer Singh were arrested
at 08.05 P.M. in the night. He speaks about the recovery of the 12-bore
pistol on the statement of Resham Singh, one spear on the statement of
Daleep Singh and one sabre on the statement of Veer Singh. The
recovered goods were sealed separately. Case was registered against
Resham Singh under Section 25 of the Arms Act, 1959. He prepared the
site map which was produced as Ka-18. He states that he had reached
the place of incident in the night of 22.08.1992 and due to dark, the
Panchnama of the body could not be done on the same day. The
investigation was done by PW5 till 28.08.1992. Thereafter, it was handed
over to one Davendra Singh. In cross-examination, he would say as
follows:
No serial number is there upon any pistol. Pistol without
opening cannot be closed. Another pistol open with rust is there.
Barrell is not getting opened. At this time, both the pistols are not
in working condition. He does not remember as to after how many
days of recovery, the pistols and empty cartridges were sent to
Analyzer. It was sent on 25.11.1992 by Special Messenger through
the Munsif Magistrate Khateena which was received on
28.11.1992. He is neither a Ballastic Expert or did he have any
special training in this regard.
In Ka 6, in "Death" column, time of death has not been
mentioned. Time of dispatch of body from "Police Headquarters",
is not recorded.
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18. He had filled-up the Panchnama on the next day in the morning.
When he had reached there, due to insufficient light on the spot,
Panchnama could not be filled at that night. The dead body was lying in
the paddy field at the side of the road. On eastern side of the road,
semal tree is there. Neither the ox and the bullock cart were found and
taken into possession.
19. PW6 is Devendra Singh who carried on the investigation as
per orders of the Magistrate dated 11.09.1992. He prepared Site MapKa 19. PW6 continued with the investigation, and in cross-examination,
he states as follows inter alia:
"The statement of Shri Kamal Ram Arya, S.I. and S.O.
Nanakmatta was taken on 7.10.92. I had taken the statements of
witnesses Pratap Singh on 7.10.92. Witnesses Veera Kaur, Pratap
Singh, Preetam Singh, Harnam Singh and Munsha Singh had not
told me the number of the tractor. Veera Kaur had deposed me
that Resham Singh had fired upon my husband, who was sitting
on the tractor and Pahalwan Singh had assaulted with sword, due
to that her husband fell down from the tractor. Same way Pratap
Singh also had given the statement."
20. It may be true that evidence regarding the statement in Section
161 Cr.PC is permissible only as contemplated in Setion 162 of the Cr.PC
and Section 145 of the Indian Evidence Act, 1872. What is relevant is
the fact that the mother of PW1 who is the wife of the deceased and,
more importantly, who was allegedly travelling in the tractor, was the
most important witness and she was not examined.
21. This is a case where the Trial Court convicted the accused
and the High Court has, in appeal filed by the accused, acquitted them.
This appeal is generated by special leave. What are the contours of the
jurisdiction of this Court in this matter? We would only refer to two
judgments of this Court in this regard.
22. In The State Government, Madhya Pradesh v. Ram Krishna
Ganpatrao Limsey and others4, this is what this Court, inter alia, held:
"5. ... The exercise of this extraordinary jurisdiction is not justifiable
in criminal cases unless exceptional or special circumstances are
shown to exist or that substantial and grave injustice has been
4 AIR 1954 SC 20
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done. In the case of an order of acquittal where the presumption
of the innocence of an accused person is reinforced by an order
of acquittal of a High Court, the exercise of this jurisdiction would
not be justified for merely correcting errors of fact or law. An
occasion for interference with an acquittal order may arise,
however, where a High Court acts perversely or otherwise
improperly or has been deceived by fraud."
23. In State of Uttar Pradesh v. Guru Charan and others5, we
noticed the following discussion at paragraphs 41 to 43:
"41. In Banne case [(2009) 4 SCC 271: (2009) 2 SCC (Cri)
260], the settled legal position which has been crystallised in a
number of judgments has been reconsidered and reiterated. The
principles emerging are restated in the following words: (SCC p.
286, paras 27-28)
"27. The following principles emerge from the
aforementioned cases:
1. The appellate court may review the evidence in appeals
against acquittal under Sections 378 and 386 of the Criminal
Procedure Code, 1973. Its power of reviewing evidence is wide
and the appellate court can reappreciate the entire evidence on
record. It can review the trial court's conclusion with respect to
both facts and law.
2. The accused is presumed to be innocent until proved
guilty. The accused possessed this presumption when he was
before the trial court. The High Court's acquittal bolsters the
presumption that he is innocent.
3. There must also be substantial and compelling reasons
for reversing an order of acquittal.
This Court would be justified in interfering with the judgment of
acquittal of the High Court only when there are very substantial
and compelling reasons to discard the High Court's decision.
28. Following are some of the circumstances in which
perhaps this Court would be justified in interfering with the
judgment of the High Court, but these are illustrative not exhaustive:
5 (2010) 3 SCC 721
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(i) The High Court's decision is based on totally erroneous
view of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence
and documents on record;
(iii) The entire approach of the High Court in dealing with
the evidence was patently illegal leading to grave miscarriage of
justice;
(iv) The High Court's judgment is manifestly unjust and
unreasonable based on erroneous law and facts on the record of
the case;
(v) This Court must always give proper weight and
consideration to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering
with a case when both the Sessions Court and the High Court
have recorded an order of acquittal."
42. We may also notice here the observations made by this Court
in State of U.P. v. Harihar Bux Singh [(1975) 3 SCC 167 : 1974 SCC
(Cri) 799] with regard to the scope of interference by this Court under
Article 136 of the Constitution. It is observed as follows: (SCC p. 170,
para 14)
"14. In an appeal under Article 136 of the Constitution, this Court
does not interfere with the finding of acquittal recorded by the
High Court unless that finding is vitiated by some glaring infirmity
in the appraisement of evidence. The fact that another view could
also have been taken on the evidence on record would not justify
interference with the judgment of acquittal. The judgment of the
High Court in the present case has not been shown to suffer from
any such weakness as might induce us to interfere. The appeal
consequently fails and is dismissed."
43. The same view has been reiterated by this Court in State of
U.P. v. Gopi [1980 Supp SCC 160 : 1979 SCC (Cri) 630] wherein it is
observed as follows: (SCC p. 161, para 2)
"2. ... There may be something to be said for this view of the
High Court and, if we were sitting as a court of appeal, we may
have taken a different view and may have accepted the statements
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of PWs 4 and 6. But that is no reason to set aside the judgment of
the High Court for after consideration of the various aspects of
the case it cannot be said that the view taken by the High Court
was not reasonably possible."
(Emphasis supplied)
24. Having set out the boundaries of this Court's jurisdiction in the
matter, let us examine what weighed with the High Court.
25. In the first place, it is stated that there were material variations
in the evidence of PWs 1 and 2. As to what these variations are, they
have not been culled out in the judgment. We, however, find the following
aspects:
a. PW1 has stated that after half quarter to one hour, Policemen
have come to the place of incident. Police had filled the
Panchnama at the spot which was filled in the night. The
Panchnama was filled in the torch light. PW2, on the other
hand, says that Panchnama of the dead body was done on the
next day in the morning. PW5-the Police Inspector, who did
the Panchnama, has stated that on 23.08.1992 (next day), at
the place of incidence, after filling the Panchnama of the dead
body recorded and after reading, got the signatures of the
Panches done. He further reiterates this when he says that he
had reached the place of incidence in the night of 22.08.1992,
and due to dark, the Panchnama of body could not be done on
the same day. A Sub-Inspector and PAC were posted for
security of the dead body.
b. PW1 says that he had got report written of the incident from
Ishwar Singh and gave to the Police Station. Ishwar Singh
went to the Police Station with him. He wrote the report at the
Police Station. PW1, his mother and maternal uncle had told to
Ishwar Singh about the incident. PW2, on the other hand, would
say that along with PW1, he also went to lodge the report. He
also said that PW1 got the report written from Ishwar Singh
and gave it to the Police Station. In cross-examination, however,
he stated that PW1, his mother and maternal uncle had gone
on foot to lodge the report. PW2 had also gone with him on
foot holding the cycle. Four people had gone. PW1, no doubt,
does not appear to refer to PW2 as having accompanied him
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to the Police Station. PW2 further says that the report had
been written sitting at the Police Station. More importantly, he
deposed that PW1 had written the report and that PW1 is
educated. As can be noticed, according to PW1, the report
was got written through Ishwar Singh. PW2 also, in his
examination, has given the same version but in crossexamination, as noticed, he states that the report was written
by PW1.
c. According to PW1, the light of the tractor was burning.
According to PW2, bulbs were, however, off.
d. According to PW1, there were bushes on both sides of the
road. PW2, however, deposes that there were no bushes nearby
of road but crop was there.
e. PW1 deposed that they went to the Police Station on cycles.
However, PW2 has deposed that PW1, his mother and PW4
had gone on foot to lodge the report and that PW2 had gone
with them on foot holding the cycle.
f. Coming to the most important aspect of the matter, viz., as the
actual unfolding of the incident, PW1 has stated that Resham
Singh fired the shot from pistol which struck at the back of his
father. When his father fell down, then, others attacked. All
the accused stood at front and all the three had fired the shot.
He further deposes that the firing was done from the front.
Other people climbed on the tractor. Upon the seat of the tractor
itself, assault was done with spear, sword, etc. Total three shots
were fired. The shots were fired from the distance of 5-7 steps
near to the bullock cart.
26.