CASE NO.: Appeal (crl.) 39 of 2002 PETITIONER: TORAN SINGH Vs. RESPONDENT: STATE OF MADHYA PRADESH DATE OF JUDGMENT: 01/08/2002 BENCH: DORAISWAMY RAJU, SHIVARAJ V. PATIL. JUDGMENT:
Shivaraj V. Patil J.
The appellant was convicted for offence under
Section 302 IPC and sentenced to imprisonment for life
by the Sessions Court. The High Court dismissed the
appeal confirming the conviction and sentence passed by
the Sessions Court. Hence, this appeal by special
leave.
The prosecution case as unfolded during trial is
that the appellant had called deceased Hardas and his
son Puran Singh to his village Haider for properly
setting roof tiles. Hardas stayed in the house of the
appellant. His son Puran Singh, PW-1, had gone to the
house of Gyarasa, barber (PW-3) of village Haider. At
about 11 o’clock on 24.6.1992 in the night, PW-1 came
to the house of the appellant to sleep. He saw that the
appellant was assaulting the deceased Hardas by axe.
When asked as to why he was cutting his father, the
appellant told him that the deceased Hardas had eloped
with his wife and he was annoyed for the same. When
PW-1 tried to save Hardas, the appellant rushed towards
him; so he ran away to his village Miyan Khedi to save
himself. He awakened his brothers Bhagwat and Seeta
Ram and informed about the occurrence. PW-1 and his
brothers went towards village Haider. On the way, PW-2
Kamla, Chowkidar of the said village met and told them
that the appellant had murdered Hardas and asked them
to go back and lodge report in the police station.
Thereafter, PW-1 went to the house of Sarpanch of his
village Miyan Khedi and lodged F.I.R. in the police
station. After investigation, the police filed challan
for the offence under Section 302 IPC against the
appellant. After trial, the learned Sessions Judge,
finding the appellant guilty for the offence under
Section 302, convicted and sentenced him for
imprisonment for life. As already noticed above, the
appellant unsuccessfully challenged the said order of
the learned Sessions Judge before the High Court.
The learned counsel for the appellant contended
that the High Court failed in its duty and committed
manifest error in not appraising and re-appreciating
the evidence as it ought to be as the first court of
appeal; as is evident from the impugned judgment, there
is narration of prosecution case and reference to the
evidence of few prosecution witnesses without there
being any consideration and appreciation of evidence;
the High Court wrongly placing the burden on the
defence and accepted the deposition of PW-1 Puran Singh
as inspiring confidence. The learned counsel added
that the appellant had only one hand as the other hand
had been mutilated and it was not possible to assault
the deceased that too in the presence of his son in the
manner described. Except the interested testimony of
PW-1 Puran Singh, the son of the deceased who was the
only so-called eye-witness, there is no other evidence
to support the version given by PW-1; even conduct of
PW-1 was unnatural and improbable inasmuch as he runs
away leaving the father when he was being assaulted and
he does not try to secure help of others in the village
either; he goes to his village Miyan Khedi; further
according to the learned counsel, there is a material
contradiction as to the time the PW-1 returning from
the house of Gyarasa, PW-3 and Ghuman Singh (PW-9) who
is alleged to have given information about the murder
to Kamla (PW-2), did not support the case of the
prosecution; PW-3 and PW-9 both were treated as
hostile by the prosecution; unfortunately, the trial
court also narrated the prosecution case and referred
to the portions of prosecution witnesses but failed to
objectively evaluate and scrutinize the evidence.
The learned counsel for the respondent argued
supporting the impugned judgment and was not in a
position to give satisfactory explanation to the
infirmities and defects pointed out in the prosecution
case.
We have carefully considered the submissions made
by the learned counsel for the parties. Ordinarily
this Court does not disturb or upset the concurrent
findings recorded by the trial court as affirmed by the
High Court, entering into the domain of appreciation of
evidence. But in a case like this where there was no
proper and objective appreciation of evidence by the
trial court and the High Court, as a first court of
appeal, fails in its duty of re-appreciating the
evidence and reviewing the evidence objectively and
simply endorses the conclusion arrived at by the trial
court resulting in patent miscarriage of justice, not
only this Court interferes but it becomes the duty of
this Court to do so to prevent miscarriage of justice.
In this case we have no hesitation to upset the order
of conviction and sentence passed against the appellant
for the reasons more than one given hereinbelow.
(i) The motive for the alleged offence is that the
deceased had eloped with the wife of the
appellant. If that be so, it was improbable that
the appellant would have gone from his village
Haider to other village Miyan Khedi of the
deceased and PW-1 to call them for properly
setting the roof of his house as if no one else
could do the job in his village itself. In the
background of ill-will and enmity, he could not
have chosen to call the deceased and his son to
his house and the deceased and his son could not
have gone to the house of the appellant and that
too to stay there overnight. There is no evidence
on record to speak about the deceased and his son
reaching the house of the appellant or their stay
in that house.
(ii) PW-1 was the only eye-witness according to the
prosecution. He being the son of the deceased is
obviously an interested witness. His evidence
ought to have been scrutinized with greater care
and caution. Even otherwise, his evidence is not
corroborated on material aspects by the evidence
of other witnesses. According to the prosecution,
PW-1 had gone to the house of Gyarasa (PW-3) on
the date of incident and returned to the house of
the appellant at 11.00 p.m. but PW-3 in his
evidence has stated that PW-1 left his house at
the time of sunset in the evening. It may also be
noted here that PW-3 did not support the
prosecution case and he was treated hostile.
(iii)PW-2, Kamla, Chowkidar of the village, stated that
when PW-1 and his brothers were coming to village
Haider, he met them on the way and told them that
the appellant had killed the deceased and they
need not go further and should return and go to
police station to lodge the complaint. PW-2 has
stated that he was told by PW-9 Ghuman Singh about
the appellant killing the deceased but PW-9 Ghuman
Singh does not support the case of the prosecution
and the statement of PW-2. He too was treated as
hostile.
(iv) The axe alleged to have been used in the
commission of offence, said to have been recovered
at the instance of the appellant, was not produced
before the Court and there was no occasion for the
doctor to confirm whether injuries of the nature
found on the deceased could be caused by such an
axe.
(v) The conduct of PW-1, the only eye-witness, that
too to the part of the incident is highly
unnatural and improbable. When his father was
being assaulted with axe on the neck and other
parts of the body, he does not make hue and cry;
he does not try to rescue; the appellant has only
one hand; the PW-1 and his father in the ordinary
course would have over-powered him and it appears
doubtful whether the appellant could assault with
his one hand causing so many injuries on the body
of the deceased in the manner stated; PW-1 does
not try to take the help of the people in village
Haider around the house of appellant; he ran to
his village Miyan Khedi and thereafter goes back
with his brothers to Haider and returns to his
village again after PW-2, Kamla, told them about
the murder of their father. There was delay in
lodging the complaint also. These factors would
render the very presence claimed of PW-1 at the
place and time of occurrence itself doubtful and
incredible.
Apart from material contradictions and omissions
in the statements of witnesses, these factors clearly
indicate the serious infirmities and improbabilities of
the prosecution case giving rise to grave doubts as to
the involvement of the appellant in the commission of
the offence.
The substantial portion of the judgment of the
trial court is contained in the narration of
prosecution story and referring to the prosecution
witnesses. We hardly find evaluation, analysis or
scrutiny of evidence in a proper perspective
objectively. With regard to serious infirmities
pointed out by the defence raising doubt of the
prosecution case, the learned Sessions Judge has simply
stated that he did not agree with such contentions.
The trial court, in our view, was not right and
justified in lightly brushing aside the infirmities and
improbabilities brought out from the prosecution case,
that too when the entire prosecution case rested on
sole eye-witness, who was interested being the son of
the deceased; more so in the absence of any
corroboration of his evidence by other independent
evidence on material aspects of the prosecution case.
It is unfortunate that the High Court has simply
endorsed the conviction and sentence passed by the
trial court without objectively and satisfactorily
scrutinizing and examining the evidence as a first
court of appeal except narrating the prosecution case
and referring briefly to the evidence of few
prosecution witness. The reason recorded by the High
Court is to be seen in para 10 of the judgment which
reads:-
“Thus in the absence of plausible
defence by the appellant and the fact
that the deceased had stayed in the
house of appellant and in the absence of
the explanation as to the cause of
death, the appellant is liable to be
convicted. Deposition of PW-1 Puran
inspires confidence and finds support
from the medical evidence.”
In the light of what we have stated above, we find
it difficult to agree with the High Court as to how
deposition of PW-1 Puran Singh inspires confidence. As
is evident from the above para, the High Court instead
of giving benefit of doubt to the appellant, placed the
burden on the defence and found that there was absence
of plausible defence and explanation by the appellant.
The case of the prosecution should rest on its strength
not on the absence of explanation or plausible defence
by the accused.
Thus, we find it difficult to sustain the impugned
judgment. In the result, the impugned judgment
affirming the judgment of the trial court is set aside.
The appellant is acquitted giving benefit of doubt. He
be set at liberty forthwith if he is not required in
any other case. The appeal is allowed accordingly.
