{"id":147471,"date":"2011-03-08T00:00:00","date_gmt":"2011-03-07T18:30:00","guid":{"rendered":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-naresh-and-ors-on-8-march-2011"},"modified":"2017-02-21T14:49:54","modified_gmt":"2017-02-21T09:19:54","slug":"state-of-u-p-vs-naresh-and-ors-on-8-march-2011","status":"publish","type":"post","link":"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-naresh-and-ors-on-8-march-2011","title":{"rendered":"State Of U.P vs Naresh And Ors on 8 March, 2011"},"content":{"rendered":"
Supreme Court of India<\/div>\n
State Of U.P vs Naresh And Ors on 8 March, 2011<\/div>\n
Author: ………………………J.<\/div>\n
Bench: P. Sathasivam, B.S. Chauhan<\/div>\n
                                                                           REPORTABLE\n\n\n\n\n                 IN THE SUPREME COURT OF INDIA\n\n             CRIMINAL APPELLATE JURISDICTION\n\n\n                 CRIMINAL APPEAL NO.674 of 2006\n\n\n\n\nState of U.P.                                                 ...Appellant\n\n\n                                      Versus\n\n\nNaresh & Ors.                                                    ...Respondents\n\n\n\n\n\n                               J U D G M E N T\n<\/pre>\n
Dr. B.S. CHAUHAN, J.\n<\/p>\n
1.     This appeal has been preferred against the judgment and order <\/p>\n
dated 19.5.2004 passed by the High Court of Judicature at Allahabad <\/p>\n
in   Criminal   Appeal   No.2866\/1980,   acquitting   the   respondents   by <\/p>\n
reversing   the   judgment   and   order   dated   9.12.1980,   passed   by   the <\/p>\n
Sessions Judge in Sessions Trial Nos.181 and 182 of 1980, convicting <\/p>\n
the said respondents under sections 302\/34, 307\/34 and 379\/34 of the <\/p>\n
Indian Penal Code, 1860 (hereinafter called the `IPC’) and sentencing <\/p>\n
them   under   the   first   count   to   life   imprisonment,   under   the   second <\/p>\n
count to rigorous imprisonment for 5 years and under the third count <\/p>\n
to   rigorous   imprisonment   for   2   years.     However,   all   the   sentences <\/p>\n
were directed to run concurrently.\n<\/p>\n
2.      Facts   and   circumstances   giving   rise   to   this   appeal   are   that   on <\/p>\n
16.10.1979,   in   the   morning   Naresh,   respondent   no.1   herein,   started <\/p>\n
digging   the   (Chak   Road)   to   create   a   passage   from   the   field   of   the <\/p>\n
informant Subedar (PW.1).   He was stopped by Balak Ram (PW.5).\n<\/p>\n
Naresh, respondent no.1, not only abused Balak Ram (PW.5), but also <\/p>\n
assaulted   him   and   threatened   him   that   he   would   face   dire <\/p>\n
consequences.     With   regard   to   this,   Balak   Ram   (PW.5)   lodged   the <\/p>\n
complaint of the incident at about 9.30 a.m. in Police Station, Kampil, <\/p>\n
District   Farukhabad.     Balak   Ram   (PW.5)   was   accompanied   to   the <\/p>\n
police   station   by   the   informant   Subedar   (PW.1)   and   their   uncle   Sri <\/p>\n
Ram (deceased).   Balak Ram (PW.5) and Sri Ram (deceased)   had a <\/p>\n
rifle and a gun with them.\n<\/p>\n
3.      After lodging the complaint in the police station, Kampil, one <\/p>\n
of   them,   went   to   the   market   to   make   some   purchases   and, <\/p>\n
subsequently,   they   returned   to   their   village   in   the   evening.   While <\/p>\n
coming back to their village Karanpur, from Kampil, at about 5 p.m. <\/p>\n
                                                                                      2<\/span><\/p>\n
on Kampil – Aliganj Road, as soon as they approached the fields of <\/p>\n
Gajraj   and   Ganga   Ram;   they   found   the   four   accused   (respondents <\/p>\n
herein)   emerging   out   from   the   bushes   armed   with   gun   and   country <\/p>\n
made  pistols.   They hurled abuse at them and also opened fire.   Sri <\/p>\n
Ram and Balak Ram (PW.5) received gun shot injuries. Sri Ram died <\/p>\n
on the spot, however, Subedar (PW.1) escaped unhurt.  After hearing <\/p>\n
a   distress   cry,   some   persons   working   in   the   nearby   fields   rushed <\/p>\n
towards   the   place   of   occurrence.     The   accused   ran   away   from   the <\/p>\n
place of occurrence snatching the gun, rifle and ammunitions from the <\/p>\n
victims.\n<\/p>\n
4.      After the arrival of the family members of the victims and some <\/p>\n
villagers   at   the   place     of   occurrence,   Subedar   (PW.1)   went   to   the <\/p>\n
police   station   in  Kampil,   at  a   distance   of  6   miles   from  the   place   of <\/p>\n
occurrence,   and   lodged   the   First   Information   Report   (hereinafter <\/p>\n
called the “FIR”) at 9.30 p.m. naming all the accused.  Injured Balak <\/p>\n
Ram   (PW.5)   was   sent   for   a   medical   examination   at   Public   Health <\/p>\n
Centre, Kayamganj which was at a distance of 20 k.m from the place <\/p>\n
of occurrence.  He was examined on the same day by Dr. R.C. Gupta <\/p>\n
(PW.3) at 10.30 p.m.   The Investigating Officer reached the place of <\/p>\n
                                                                                      3<\/span><\/p>\n
occurrence   at   10.15   p.m.   on   the   same   night,   however,   the   inquest <\/p>\n
could not be prepared at night due to inadequate light.\n<\/p>\n
5.      Ultimately, inquest proceedings could be started at 6.30 a.m. on <\/p>\n
17.10.1979.  The body of Sri Ram (deceased) was sealed and handed <\/p>\n
over to Sughar Singh, Constable (PW.9) for taking to the mortuary for <\/p>\n
post-mortem at Fatehgarh.  The I.O. prepared the site plan and started <\/p>\n
investigation.     As   none  of   the   accused   could  be   traced,   proceedings <\/p>\n
under   Sections   82-83   of   the   Code   of   Criminal   Procedure,   1973 <\/p>\n
(hereinafter called “Cr.P.C.”) were initiated on 21.10.1979.   For that <\/p>\n
purpose,   the   Magistrate   issued   notices   on   25.10.1979.     In   view <\/p>\n
thereof, two accused, namely,  Naresh and Shyam Singh surrendered <\/p>\n
on  25.10.1979 in the court of the Judicial Magistrate.  The remaining <\/p>\n
two accused, namely, Bharat and Jagpal surrendered on 29.10.1979.\n<\/p>\n
6.      After   completing   the   investigation,   a   chargesheet   was   filed <\/p>\n
against   all   the   four   accused.     They   denied   their   involvement   in   the <\/p>\n
crime and claimed trial.    In order to establish its case before the trial <\/p>\n
Court,   the   prosecution   examined   11   witnesses   including   Subedar <\/p>\n
(PW.1), informant and Balak Ram (PW.5), injured.  After concluding <\/p>\n
                                                                                    4<\/span><\/p>\n
the trial, the trial Court convicted and sentenced all the four accused <\/p>\n
as mentioned hereinabove.\n<\/p>\n
7.      Being   aggrieved,   all   the   four   convicts   preferred   Criminal <\/p>\n
Appeal No.2866\/1980, before the High Court which has been allowed <\/p>\n
vide judgment and order dated 19.5.2004 (impugned) and all the four <\/p>\n
convicts stood acquitted.  Hence, this appeal.\n<\/p>\n
8.      During   the  pendency  of  this  appeal   before  this   Court,  Bharat, <\/p>\n
one of the accused died and his name stood deleted from the array of <\/p>\n
parties vide order of this Court dated 5.5.2006.  Thus, we have to deal <\/p>\n
with three accused, namely, Naresh, Jagpal and Shyam Singh.\n<\/p>\n
9.      Shri   R.K.   Gupta,   learned   counsel   appearing   for   the  appellant-\n<\/p>\n
State has submitted that the High Court has erred in reversing the well <\/p>\n
reasoned judgment of the trial court  giving unwarranted  attention  to <\/p>\n
minor  contradictions  on trivial matters  and taking into consideration <\/p>\n
non-existent  facts.   The High Court has  held that the FIR was ante-\n<\/p>\n
timed   and   ante-dated   without   giving   any   reason   whatsoever.     The <\/p>\n
High   Court   held   that   the   FIR   was   subject   to   doubt,   though   such   a <\/p>\n
finding  does  not  get any  support  from any  material  on  record.   The <\/p>\n
FIR has been lodged most promptly considering the distance between <\/p>\n
                                                                                    5<\/span><\/p>\n
the place of occurrence and the police station.   Balak Ram (PW.5) –\n<\/p>\n
injured witness had been examined by Dr. R.C. Gupta (PW.3) within <\/p>\n
a few hours of the incident.   Therefore, the finding that the FIR was <\/p>\n
ante-timed and ante-dated is erroneous and contrary to the documents <\/p>\n
on record.  The High Court without giving any cogent reason held that <\/p>\n
testimony of Balak Ram (PW.5) who suffered gun shot injuries, was <\/p>\n
not   worth   believing.     Such   a   view   is   contrary   to   the   consistent   and <\/p>\n
persistent view taken by this Court time and again that the presence of <\/p>\n
injured witness cannot be doubted and his version of events can, even <\/p>\n
in   exceptional   circumstances,   be   relied   upon   with   care   and   caution.\n<\/p>\n
The High Court reversed the trial court’s judgment also on the ground <\/p>\n
that   not   a   single   independent   witness   has   been   examined   by   the <\/p>\n
prosecution.     Such   a   finding   has   been   recorded   without   considering <\/p>\n
the   fact   that   incident   occurred   in   the   evening   at   a   considerable <\/p>\n
distance   from the  village  on  the road  and some persons  had arrived <\/p>\n
after   hearing   the   hue   and   cry   by   Balak   Ram   (PW.5)   and   Subedar <\/p>\n
(PW.1). By that time, the accused had run away, snatching the arms of <\/p>\n
the victims.   In view thereof, the appeal deserves to be allowed and <\/p>\n
the judgment and order of the High Court is liable to be set aside.\n<\/p>\n
                                                                                      6<\/span><\/p>\n
10.     On the contrary, Shri Manoj Prasad, learned counsel appearing <\/p>\n
for   the   respondents,   has   vehemently   opposed   the   appeal   contending <\/p>\n
that   the   incident   occurred   three   decades   ago.   The   respondents   have <\/p>\n
been acquitted by the High Court after considering all the material on <\/p>\n
record.   In   respect   of   the   incident   that   occurred   on   the   morning   of <\/p>\n
16.10.1979, Balak Ram (PW.5) lodged the complaint on the basis of <\/p>\n
which   NCR   was   recorded,   wherein   only   Naresh,   accused   had   been <\/p>\n
named.     The   not   naming  of  the   other   accused   is   a   good   ground   for <\/p>\n
rejecting   the   prosecution   case   in   its   entirety.   The   finding   of   fact <\/p>\n
recorded by the High Court cannot be said to be perverse warranting <\/p>\n
interference   by   this   Court.     No   recovery   of     arms   and   ammunitions <\/p>\n
had   been   made   from   the   respondents\/accused.     The   rifle   and   gun <\/p>\n
which were allegedly  snatched from the victims  had been recovered <\/p>\n
after   a   long   time   from   the   dacoits   killed   in   an   encounter   in   District <\/p>\n
Etah.   The High Court has rightly disbelieved Balak Ram (PW.5) on <\/p>\n
the basis of material contradictions in his deposition.   This Court has <\/p>\n
laid   down   definite   parameters   for   interference   with   the   order   of <\/p>\n
acquittal   and  this  case   does  not  fall  within  those  parameters.    Thus, <\/p>\n
there   is   no   cogent   reason   for   this   Court   to   interfere   with   the   same.\n<\/p>\n
Prosecution   suppressed   the  true   genesis  of  the   incident   and  enroped <\/p>\n
                                                                                         7<\/span><\/p>\n
the respondents due to pre-existing enmity. The prosecution failed to <\/p>\n
prove   its   case   beyond   reasonable   doubt.   Thus,   no   interference   is <\/p>\n
warranted, the appeal lacks merit and is liable to be dismissed.\n<\/p>\n
11.     We   have   considered   the   rival   submissions   made   by   learned <\/p>\n
counsel for the parties and perused the record.\n<\/p>\n
12.     The   admitted   facts   of   the   case   remained   that   the   incident <\/p>\n
occurred on the morning of 16.10.1979 in respect of which the NCR <\/p>\n
was recorded by the police station in  Kampil, naming Naresh as one <\/p>\n
of the accused.   The FIR, in respect of the incident that occurred on <\/p>\n
the   same   day   in   the   evening,   was   lodged   within   3-1\/2   hours   of   the <\/p>\n
time   of   incident   at   police   station,   Kampil   at   a   distance   of   about   6 <\/p>\n
miles   from   the   place   of   occurrence;   the   I.O.   reached   the   place   of <\/p>\n
occurrence   at   10.15   p.m.     Balak   Ram   (PW.5)   injured,   had   been <\/p>\n
examined  in   the   Public   Health   Centre,   Kayamganj  at  10.30   p.m.  on <\/p>\n
the same day by Dr. R.C. Gupta (PW.3) at a distance of 20 k.m. from <\/p>\n
the place of occurrence.\n<\/p>\n
13.     Dr.   R.C.   Gupta   (PW.3)   found   the   following   injuries   on   the <\/p>\n
person of Balak Ram (PW.5):\n<\/p>\n
                                                                                       8<\/span><\/p>\n
(i) Two abrasions in a area of 1 cm x < cm over outer side of right <\/p>\n
forearm, lower part.  Scab not formed.\n<\/p>\n
(ii) Gun shot wound of entry 4 cm x 2 cm x through and through over <\/p>\n
inner   aspect   of   right   thigh   middle   part.     Margins   are   irregular   and <\/p>\n
inverted.     Blackening   and   tattooing   around   the   wound   absent.\n<\/p>\n
Direction is down and lateral.  Oozing of fresh blood from the wound <\/p>\n
present. Advised X-ray.\n<\/p>\n
(iii) Guns  shot wound of exit 17 cm x 8 cm x through  and through <\/p>\n
over outer side of right thigh 5 cm above the right knee joint.  Margins <\/p>\n
are irregular and everted.  Blackening and tattooing absent.  Oozing of <\/p>\n
fresh blood present.  Advised X-ray.\n<\/p>\n
        Injury No.1 is caused by friction.  Injury Nos.2 and 3 are caused <\/p>\n
by projectile  firearm.   Injury  No.1 is simple in nature.   Injury nos.2 <\/p>\n
and   3   are   kept   under   observation.     Advised   X-ray   right   thigh.\n<\/p>\n
Duration fresh.\n<\/p>\n
        Dr.   Anil   Kumar   Dubey   (PW.2)   conducted   the   post-mortem <\/p>\n
examination   on   the   body   of   Sri   Ram   (deceased)   and   found   the <\/p>\n
following ante-mortem external injury on his corpse:-\n<\/p>\n
(i) Circular gun shot wound of entry 1″ in diameter and chest cavity <\/p>\n
deep situated on the right side of the back of the chest, 3″ below the <\/p>\n
                                                                                    9<\/span><\/p>\n
lower angle of the right scapula and 3″ away from the mid line in the <\/p>\n
direction of 3 O’ clock.  The margins of the wound were inverted and <\/p>\n
charred.\n<\/p>\n
            On internal examination of the corpse of Sri Ram, Dr. Dubey  <\/p>\n
found 6th, 7th and 8th ribs broken under the external injury said above.\n<\/p>\n
Beneath, he found the pleura and the right lung lacerated.  All the four <\/p>\n
chambers of the heart were empty.   He found 2 lbs of free blood in <\/p>\n
thoracic cavity.  The upper lobe of the liver was lacerated.  Right side <\/p>\n
of the diaphragm also was lacerated.   The stomach was empty.   The <\/p>\n
intestines   had   faecal   matter   and   gas.     In   the   thorax   Dr.   Dubey   had <\/p>\n
found a piece of wadding and 20 small shots respectively Exc.1 and 2.\n<\/p>\n
14.     The trial Court after considering the evidence on record came to <\/p>\n
the conclusion that the FIR had been lodged most promptly at about <\/p>\n
9.30 p.m. on the same date naming all the four  accused.    The High <\/p>\n
Court doubted the FIR and labeled the same to be ante-timed or ante-\n<\/p>\n
dated.  Deposition of Constable Sughar Singh (PW.9) before the court <\/p>\n
revealed   that   the   dead   body   had   been   handed   over   to   him   for   the <\/p>\n
purpose   of   post-mortem   on   17.10.1979   at   8   a.m.   after   having <\/p>\n
panchnama   and   sealing   thereof,   he   reached   Fatehgarh   Police   line <\/p>\n
                                                                                     1<\/span><\/p>\n
along with Constable Ram Chand in a Tonga and got the entry made <\/p>\n
in   the   Rojnamcha.     Post-mortem   was   conducted   on   18-10-1979   at <\/p>\n
about   noon   on   his   identification   of   the   dead   body.     The   dead   body <\/p>\n
remained in sealed condition throughout and nobody had any occasion <\/p>\n
to   touch   it.       Record   further   reveals   that   Constable   Sughar   Singh <\/p>\n
(PW.9)   was   not   cross-examined   by   any   of   the   respondents   accused <\/p>\n
nor any such question had been put to Dr. A.K. Dubey (PW.2) who <\/p>\n
had   conducted   the   post-mortem   in   this   regard.     According   to   Dr. <\/p>\n
Dubey, Sri Ram could have died on 16.10.1979 at about 5-7 p.m.  He <\/p>\n
has not been cross-examined as to under what circumstances the post-\n<\/p>\n
mortem could not have been conducted at an earlier point of time.\n<\/p>\n
15.     The   High   Court   has   believed   the   theory   put   forward   by   the <\/p>\n
defence   that   the   guns   looted   from   the   victims   had   been   recovered <\/p>\n
from the dacoits who were killed in an encounter on 14-15 November, <\/p>\n
1979 in Etah District.   Therefore, there had been some manipulation <\/p>\n
in the prosecution’s case.  None of the respondents accused had taken <\/p>\n
this defence in their statement under 313 Cr.P.C.  Naresh, respondent <\/p>\n
no.1 had stated that he was not aware of the same.   When a specific <\/p>\n
question was put to him he replied that he had also heard that in an <\/p>\n
encounter   6  dacoits   had   been   killed   in   District   Etah   and   some  arms <\/p>\n
                                                                                    1<\/span><\/p>\n
and ammunitions had been recovered from them.   He had not stated <\/p>\n
anywhere   that   the   said   arms   and   ammunitions   had   been   looted   by <\/p>\n
those dacoits or had been recovered from them.  This suggestion was <\/p>\n
also put to Balak Ram (PW.5) when examined on 30.8.1980 and he <\/p>\n
has stated that he had not been aware that their rifle and gun had been <\/p>\n
recovered from the dacoits killed in an encounter in District Etah.  In <\/p>\n
fact,   Inspector   Charanpal   Singh   (PW.11)   had   deposed   first   time   on <\/p>\n
11.11.1980 that 6 dacoits had been killed in an encounter in District <\/p>\n
Etah and some arms and ammunitions were recovered from them and <\/p>\n
out of the said recovered arms, namely, rifle – Ex.7, gun – Ex.8 and <\/p>\n
some ammunitions – Ex.9 were produced in the court.\n<\/p>\n
16.    The   High   Court   has   doubted   the   case   of   the   prosecution   for <\/p>\n
non-recovery   of   the   arms   from   the   respondents   accused.     The   High <\/p>\n
Court failed to appreciate that as the incident occurred on 16.10.1979 <\/p>\n
and   none   of   these   accused   were   traceable,   the   Investigating   Officer <\/p>\n
filed   an   application   for   initiating   proceedings   under   Sections   82-83 <\/p>\n
Cr.P.C.   on   21.10.1979.     Proceedings   of   attachment   of   immovable <\/p>\n
property   were   drawn   on   25.10.1979.     In   consequence   thereof,   two <\/p>\n
accused surrendered in the court on 25.10.1979 and the remaining two <\/p>\n
surrendered on 29.10.1979.  Meanwhile, S.I. Brijendra Singh (PW.7), <\/p>\n
                                                                                 1<\/span><\/p>\n
the   I.O.   stood   transferred   to   another   police   station   and   the <\/p>\n
investigation could not be carried out smoothly.  Thus, such a ground <\/p>\n
would not be sufficient to discredit the prosecution case.\n<\/p>\n
17.     The   High  Court  has   given   undue  weightage  to  the  suggestion <\/p>\n
made by defence that Surjan Singh, Inspector of U.P. Police, brother <\/p>\n
of Balak Ram (PW.5) had been an instrument to the manipulation of <\/p>\n
the   record,   though   such   a   suggestion   was   denied   by   S.I.   Brijendra <\/p>\n
Singh (PW.7), the I.O., stating that Surjan Singh did not meet him on <\/p>\n
17.10.1979, but he had met him at a later stage but he could not give <\/p>\n
the exact date of meeting.  The High Court had unnecessarily doubted <\/p>\n
his  statement without   realising  that  his  statement   had  been recorded <\/p>\n
in the court on 30.8.1980 after about 11 months.  The High Court has <\/p>\n
given undue importance to the minor contradictions  in the statement <\/p>\n
of Subedar (PW.1) and Balak Ram (PW.5) as one of them had stated <\/p>\n
that the I.O. reached the place of occurrence at 10.15 p.m. and another <\/p>\n
has stated that he reached about mid night.   The incident occurred in <\/p>\n
mid October 1979.  This is the time when the winter starts and in such <\/p>\n
a   fact-situation   no   person   is   supposed   to   keep   record   of   exact   time <\/p>\n
particularly   in   a   rural   area.     Everybody   deposes   according   to   his <\/p>\n
estimate.  More so, the statement had been recorded  after a long lapse <\/p>\n
                                                                                     1<\/span><\/p>\n
of time.  Therefore, a margin of 1-1\/2 hours remained merely a trivial <\/p>\n
issue.  The High Court had taken a very serious note of the statement <\/p>\n
of Balak Ram (PW.5) in respect of the first incident wherein he had <\/p>\n
stated   that   Naresh,   the   accused,   had   initially   abused   him   and   then <\/p>\n
beaten   him   with   danda   but   in   the   FIR   he   had   stated   that   accused <\/p>\n
Naresh had given blow with butt-end of the spade. There was minor <\/p>\n
contradiction   in   the   statements   of   Subedar   (PW.1)   and   Balak   Ram <\/p>\n
(PW.5)   in   respect   of   the   first   incident   of   the   same   date   and   minor <\/p>\n
variations   in   their   statements   which   persuaded   the   High   Court   to <\/p>\n
disbelieve the presence of Subedar (PW.1) in the morning incident.\n<\/p>\n
18.     The trial Court had taken note of the first incident that occurred <\/p>\n
in the morning and considered the same in correct prospective, that in <\/p>\n
the morning incident Balak Ram (PW.5) got an injury on his arm as <\/p>\n
has been found by Dr. R.C. Gupta (PW.3) and not on the head.   The <\/p>\n
statement   made   by   Balak   Ram   (PW.5)   may   not   be   correct   in   this <\/p>\n
regard for the reason that he could not remember that he got the injury <\/p>\n
on his arm and not on the head.  This version is duly supported by the <\/p>\n
NCR shown by (Ex. Ka.6).  Had there been any concoction in the said <\/p>\n
NCR   (Ex.   Ka.6),   either   with   the   police   personnel   at   Kampil   Police <\/p>\n
Station   or   at   the   behest   of  Inspector   Surjan   Singh,   brother   of  Balak <\/p>\n
                                                                                      1<\/span><\/p>\n
Ram (PW.5), then there could not have been any discrepancy in the <\/p>\n
contents   thereof.   So   far   as   this   minor   contradiction   was   concerned, <\/p>\n
Constable Shiv Nath Singh (PW.6) was not at all cross-examined in <\/p>\n
this   respect.   No   suggestion   was   put   to   Constable   Shiv   Nath   Singh <\/p>\n
(PW.6),  who  was  examined   much later  than  Subedar  (PW.1)  in this <\/p>\n
regard.  In respect of the first incident S.I. Brijendra Singh (PW.7), the <\/p>\n
I.O., has stated that he had seen the pits made by Naresh, accused on <\/p>\n
the western side of the Chak Road in front of his house.   It had not <\/p>\n
been a suggestion of any person that the pits had been made by any <\/p>\n
person   from   the   complainant   party.     Presence   of   the   pits   was   an <\/p>\n
important   circumstance   supporting   the   prosecution   version   so   far   as <\/p>\n
the morning incident was concerned and the High Court erred gravely <\/p>\n
not taking note of this specific finding by the trial Court.\n<\/p>\n
19.         The   High   Court   had   doubted   the   prosecution   case   that   if   in <\/p>\n
respect of the first incident NCR had been lodged in the morning, why <\/p>\n
had the complainant party stayed at Kampil for the whole day?   The <\/p>\n
trial Court had recorded a finding after scrutiny of the evidence that <\/p>\n
12   rowdy   persons   had   been   taken   into   custody   and   that   the   police <\/p>\n
officers   of   that   police   station   remained   pre-occupied   with   that <\/p>\n
                                                                                      1<\/span><\/p>\n
particular  dispute and so not a single constable was available to come <\/p>\n
with the complainants.\n<\/p>\n
20.    The High Court also fell in error that whilst reaching from the <\/p>\n
place   of   occurrence   to   the   police   station,   the   complainant   party <\/p>\n
covered the distance in one hour but while coming back in the evening <\/p>\n
they had taken a longer time.     The time gap was not so much that it <\/p>\n
could give rise to any kind of suspicion.  Such a trivial issue could not <\/p>\n
have been a ground for acquitting the accused.  More so, no question <\/p>\n
in this regard was put to either of the star witnesses, when they were <\/p>\n
cross-examined.\n<\/p>\n
21.    The   High   Court   has   further   found   a   material   contradiction   in <\/p>\n
the   statements   of   Subedar   (PW.1)   and   Balak   Ram   (PW.5)   and   had <\/p>\n
made   this   one   of   the   grounds   for   the   acquittal   of   the   accused <\/p>\n
observing:\n<\/p>\n
       “To   meet   the   situation   Balak   Ram   claims   that  he <\/p>\n
       fell   unconscious   little   after   receipt   of   his   injury, <\/p>\n
       whereas Subedar Singh stated that he immediately <\/p>\n
       fell unconscious.   Therefore, it is not possible for <\/p>\n
       him to see and notice his assailants.   For the said <\/p>\n
       contradictions the testimony of this witness cannot <\/p>\n
       be given adequate weightage.”<\/p><\/blockquote>\n
                                                                                 1<\/span><\/p>\n
       In the facts of this case, time gap could be only of few minutes, <\/p>\n
thus, it was not even worth taking note of by the High Court.\n<\/p>\n
22.     The High Court has doubted the prosecution version also on the <\/p>\n
ground   that   Subedar   (PW.1)   did   not   suffer   any   injury   in   the   said <\/p>\n
incident   without   appreciating   his   deposition   that   all   of   them   were <\/p>\n
walking at some distance and he was about 7-8 steps behind Sri Ram <\/p>\n
(deceased) and Balak Ram (PW.5) and immediately  after seeing the <\/p>\n
accused persons, he ran backward.   After taking 15-20 steps, he saw <\/p>\n
that persons working in the surrounding fields had started coming and <\/p>\n
then   he   stopped,   and   saw   the   accused   taking   away   the   arms   and <\/p>\n
ammunitions from Sri Ram (deceased) and Balak Ram (PW.5).\n<\/p>\n
23.    The  High  Court has   disbelieved   Balak  Ram  (PW.5),   who had <\/p>\n
suffered   the   gun   shot   injuries.     His   evidence   could   not   have   been <\/p>\n
brushed  aside by the High Court without  assigning    cogent reasons.\n<\/p>\n
Mere contradictions on trivial matters could not render his deposition <\/p>\n
untrustworthy.\n<\/p>\n
       The   evidence   of   an   injured   witness   must   be   given   due <\/p>\n
weightage   being   a   stamped   witness,   thus,   his   presence   cannot   be <\/p>\n
doubted.  His statement is generally considered to be very reliable and <\/p>\n
it is unlikely that he has spared the actual assailant in order to falsely <\/p>\n
                                                                                  1<\/span><\/p>\n
implicate someone else.   The testimony of an injured witness has its <\/p>\n
own relevancy and efficacy as he has sustained injuries at the time and <\/p>\n
place of occurrence and this lends support to his testimony that he was <\/p>\n
present   during   the   occurrence.     Thus,   the   testimony   of   an   injured <\/p>\n
witness   is   accorded   a  special   status   in  law.     The   witness  would   not <\/p>\n
like   or   want   to   let   his   actual   assailant   go   unpunished   merely   to <\/p>\n
implicate   a   third   person   falsely   for   the   commission   of   the   offence.\n<\/p>\n
Thus, the evidence of the injured witness should be relied upon unless <\/p>\n
there   are   grounds   for   the   rejection   of   his   evidence   on   the   basis   of <\/p>\n
major contradictions and discrepancies therein. [Vide:  Jarnail Singh <\/p>\n
v. State of Punjab, (2009) 9 SCC 719;  Balraje  @ Trimbak  v. State <\/p>\n
of  Maharashtra,<\/a>  (2010)   6  SCC   673;  and  Abdul   Sayed   v.  State   of <\/p>\n
Madhya Pradesh, (2010) 10 SCC 259].\n<\/p>\n
24.      The High Court disbelieved both the witnesses Subedar (PW.1) <\/p>\n
and Balak Ram (PW.5) as being closely related to the deceased and <\/p>\n
for not examining any independent witnesses.   In a case  like this, it <\/p>\n
may   be   difficult   for   the   prosecution   to   procure   an   independent <\/p>\n
witness,   wherein   the   accused   had   killed   one   person   at   the   spot   and <\/p>\n
seriously injured the other.  The independent witness may not muster <\/p>\n
the courage to come forward and depose against such accused. A mere <\/p>\n
                                                                                       1<\/span><\/p>\n
relationship   cannot   be   a   factor   to   affect   credibility   of   a   witness.\n<\/p>\n
Evidence of a witness cannot be discarded solely on the ground of his <\/p>\n
relationship   with   the   victim   of   the   offence.   The   plea   relating   to <\/p>\n
relatives’   evidence   remains   without   any   substance   in   case   the <\/p>\n
evidence  has  credence  and it can be relied  upon. In such a  case  the <\/p>\n
defence has to lay foundation if plea of false implication is made and <\/p>\n
the Court has to analyse the evidence of related witnesses carefully to <\/p>\n
find   out   whether   it   is   cogent   and   credible.   [Vide  Jarnail   Singh <\/p>\n
(supra), Vishnu & Ors. v. State of Rajasthan,<\/a> (2009) 10 SCC 477;\n<\/p>\n
and Balraje @ Trimbak (supra)].\n<\/p>\n
25.    In all criminal cases, normal discrepancies are bound to occur <\/p>\n
in   the   depositions   of   witnesses   due   to   normal  errors   of  observation, <\/p>\n
namely,   errors   of   memory   due   to   lapse   of   time   or   due   to   mental <\/p>\n
disposition such as shock and horror at the time of occurrence.  Where <\/p>\n
the   omissions   amount   to   a   contradiction,   creating   a   serious   doubt <\/p>\n
about   the   truthfulness   of  the   witness   and   other   witnesses   also   make <\/p>\n
material   improvement   while   deposing   in   the   court,   such   evidence <\/p>\n
cannot   be   safe   to   rely   upon.     However,   minor   contradictions, <\/p>\n
inconsistencies,   embellishments   or   improvements   on   trivial   matters <\/p>\n
                                                                                   1<\/span><\/p>\n
which   do   not   affect   the   core   of   the   prosecution   case,   should   not   be <\/p>\n
made a ground on which the evidence can be rejected in its entirety.\n<\/p>\n
The court has to form its opinion about the credibility of the witness <\/p>\n
and record a finding as to whether his deposition inspires confidence.\n<\/p>\n
“Exaggerations per se do not render the evidence brittle. But it can be <\/p>\n
one of the factors to test credibility of the prosecution version, when <\/p>\n
the   entire   evidence   is   put   in   a   crucible   for   being   tested   on   the <\/p>\n
touchstone of credibility.” Therefore, mere marginal variations in the <\/p>\n
statements   of   a   witness   cannot   be   dubbed   as   improvements   as   the <\/p>\n
same   may   be   elaborations   of   the   statement   made   by   the   witness <\/p>\n
earlier.     The   omissions   which   amount   to   contradictions   in   material <\/p>\n
particulars i.e. go to the root of the case\/materially affect the trial or <\/p>\n
core   of   the   prosecution’s   case,   render   the   testimony   of   the   witness <\/p>\n
liable to be discredited. [Vide:   State Represented by Inspector of <\/p>\n
Police   v.   Saravanan   &   Anr.,  AIR<\/a>   2009   SC   152;  Arumugam   v.\n<\/p>\n
State, AIR 2009 SC 331; Mahendra Pratap Singh v. State of Uttar <\/p>\n
Pradesh, (2009) 11 SCC 334; and  Dr. Sunil Kumar Sambhudayal <\/p>\n
Gupta & Ors. v. State of Maharashtra, JT<\/a> 2010 (12) SC 287].\n<\/p>\n
                                                                                       2<\/span><\/p>\n
26.     The High Court has also fallen into error in giving significance <\/p>\n
to a trivial issue, namely,  that in respect of the morning  incident all <\/p>\n
the accused had not been named in the complaint\/NCR.\n<\/p>\n
         It is settled legal proposition that FIR is not an encyclopedia of <\/p>\n
the entire case. It may not and need not contain all the details. Naming <\/p>\n
of   the   accused   therein   may   be   important   but   not   naming   of   the <\/p>\n
accused in FIR may not be a ground to doubt the contents thereof in <\/p>\n
case the statement of the witness is found to be trustworthy.  The court <\/p>\n
has to determine after examining the entire factual scenario whether a <\/p>\n
person   has   participated   in   the   crime   or   has   falsely   been   implicated.\n<\/p>\n
The informant fully acquainted with the facts may lack necessary skill <\/p>\n
or ability to reproduce details of the entire incident without anything <\/p>\n
missing  from this.   Some people may miss even the most  important <\/p>\n
details in narration. Therefore, in case the informant fails to name a <\/p>\n
particular accused in the FIR, this ground alone cannot tilt the balance <\/p>\n
of   the   case   in   favour   of   the   accused.   [Vide:  Rohtash   v.   State   of <\/p>\n
Rajasthan, (2006) 12 SCC 64; and Ranjit Singh & Ors. v. State of <\/p>\n
Madhya Pradesh, JT 2010 12 SC 167].\n<\/p>\n
27.     We   are   fully   aware   of   the   fact   that   we   are   entertaining   the <\/p>\n
appeal against the order of acquittal.  Thus, the Court has to scrutinize <\/p>\n
                                                                                     2<\/span><\/p>\n
the facts of the case cautiously and  knowing the parameters fixed by <\/p>\n
this Court in this regard.\n<\/p>\n
        Every   accused   is   presumed   to   be   innocent   unless   his   guilt   is <\/p>\n
proved.  The presumption of innocence is a human right subject to the <\/p>\n
statutory   exceptions.   The   said   principle   forms   the   basis   of   criminal <\/p>\n
jurisprudence in India. The law in this regard is well settled that while <\/p>\n
dealing with a judgment of acquittal, an appellate court must consider <\/p>\n
the entire evidence on record so as to arrive at a finding as to whether <\/p>\n
the views of the trial court were perverse or otherwise unsustainable.\n<\/p>\n
An   appellate   court   must   also   consider   whether   the   court   below   has <\/p>\n
placed   the   burden   of   proof   incorrectly   or   failed   to   take   into <\/p>\n
consideration any admissible evidence or had taken into consideration <\/p>\n
evidence   brought   on   record   contrary   to   law?     In   exceptional   cases, <\/p>\n
whether   there   are   compelling   circumstances   and   the   judgment   in <\/p>\n
appeal is found to be perverse, the appellate court can interfere with <\/p>\n
the   order   of   acquittal.     So,   in   order   to   warrant   interference   by   the <\/p>\n
appellate court, a finding of fact recorded by the court below must be <\/p>\n
outweighed evidence or such finding if outrageously defies logic as to <\/p>\n
suffer from the vice of irrationality. [Vide:  Babu v. State of Kerala,<\/a> <\/p>\n
                                                                                       2<\/span><\/p>\n
(2010)   9   SCC   189;   and  Dr.   Sunil   Kumar   Sambudayal   Gupta   & <\/p>\n
Ors. (supra)].\n<\/p>\n
28.       The instant case is required to be examined in the totality of the <\/p>\n
circumstances and in the light of the aforesaid legal propositions.  The <\/p>\n
Court   has   to   strike   a   balance   in   the   interest   of   all   the   parties <\/p>\n
concerned. Thus, there is an obligation on the court neither to give a <\/p>\n
long latitude to the prosecution, nor construe the law in favour of the <\/p>\n
accused.   In   view   of   the   aforesaid   analysis   of   facts   and   evidence   on <\/p>\n
record, we reach the inescapable conclusion that the High Court has <\/p>\n
gravely erred in discarding the evidence of Subedar (PW.1) and Balak <\/p>\n
Ram (P.W.5) as a result of merely being relatives of the deceased, Sri <\/p>\n
Ram.   The   High   Court   further   fell   into   error   in   not   giving   due <\/p>\n
weightage to the deposition of Balak Ram (P.W.5), a stamped witness, <\/p>\n
who had suffered gun shot injuries. The High Court made too much of <\/p>\n
insignificant  discrepancies,  which were made the basis for acquittal.\n<\/p>\n
Thus, we are of the considered opinion that the findings recorded by <\/p>\n
the   High   Court   are   perverse   and   cannot   be   sustained   in   the   eyes   of <\/p>\n
law.\n<\/p>\n
                                                                                      2<\/span><\/p>\n
29.     Thus, the appeal is, accordingly, allowed. Judgment and order <\/p>\n
dated 19.5.2004 passed by the High Court is hereby set aside and the <\/p>\n
judgment   and   order   of   the   trial   court   dated   9.12.1980   passed   in <\/p>\n
Sessions   Trial   No.   181   and   182   of   1980   convicting   the   respondents <\/p>\n
under Sections 302\/34, 307\/34 and 379\/37 of IPC and the sentences so <\/p>\n
imposed, is restored.  As the respondents have been acquitted  by the <\/p>\n
High   Court,   the   copy   of   the   order   be   sent   to   the   Chief   Judicial <\/p>\n
Magistrate, Farukhabad, to take the respondents into custody and send <\/p>\n
them to jail to serve the unserved part of the sentence.\n<\/p>\n
                                                           ………………………J.\n<\/p>\n
                                                           (P. SATHASIVAM)<\/p>\n
                                                                ………………………J.\n<\/p>\n
                                                            (Dr. B.S. CHAUHAN)<\/p>\n
New Delhi,<\/p>\n
March  8, 2011<\/p>\n
                                                                                   2<\/span><\/p>\n
          2<\/span><\/p>\n","protected":false},"excerpt":{"rendered":"
Supreme Court of India State Of U.P vs Naresh And Ors on 8 March, 2011 Author: ………………………J. Bench: P. Sathasivam, B.S. Chauhan REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO.674 of 2006 State of U.P. …Appellant Versus Naresh & Ors. …Respondents J U D G M E N T Dr. […]<\/p>\n","protected":false},"author":1,"featured_media":0,"comment_status":"open","ping_status":"open","sticky":false,"template":"","format":"standard","meta":{"_lmt_disableupdate":"","_lmt_disable":"","_jetpack_memberships_contains_paid_content":false,"footnotes":""},"categories":[30],"tags":[],"class_list":["post-147471","post","type-post","status-publish","format-standard","hentry","category-supreme-court-of-india"],"yoast_head":"\nState Of U.P vs Naresh And Ors on 8 March, 2011 - Free Judgements of Supreme Court & High Court | Legal India<\/title>\n<meta name=\"robots\" content=\"index, follow, max-snippet:-1, max-image-preview:large, max-video-preview:-1\" \/>\n<link rel=\"canonical\" href=\"https:\/\/www.legalindia.com\/judgments\/state-of-u-p-vs-naresh-and-ors-on-8-march-2011\" \/>\n<meta property=\"og:locale\" content=\"en_US\" \/>\n<meta property=\"og:type\" content=\"article\" \/>\n<meta property=\"og:title\" content=\"State Of U.P vs Naresh And Ors on 8 March, 2011 - 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