State Of Uttar Pradesh vs Om Pal & Ors

N.V. RAMANA, J.

1.This appeal by way of special leave pe(cid:32)(cid:32)on is filed by the State of U(cid:38)ar Pradesh against the final judgment and order dated 6th April, 2007

passed by the High Court of Judicature at Allahabad in Criminal Appeal No. 2622 of 2005. By the said judgment, the High Court has acqui(cid:38)ed the

respondents who were accused in Sessions Trial No.1090 of 2003 before the District Court, Ghaziabad, Uttar Pradesh.

The prosecu(cid:32)on case, in brief, is that on 25-3-1993 atabout 9.00 a.m. Mahipal (deceased) and his wife Prakashee (PW3) were going to their

fields on a buffalo cart and Tej Pal, Ram Swaroop and Dharmendra (PW2) were following them. While they were on their way, the three

accused (respondents herein) appeared out of a sugercane filed near the fields of one Alias, while hurling abuses against Mahipal fired at him.

The fire opened by Om Pal was missed but the fire opened by Mukh(cid:32)ar hit Mahipal. Navin assaulted Mahipal with the bu(cid:38) of the Tamancha on

his head. On receiving informa(cid:32)on from Dharmendra (PW2) about the incident, Naresh (PW1) accompanied by Dharmendra took the injured

Mahipal to the police station, Babugarh and lodged FIR. Thereafter, on the way to hospital, Mahipal succumbed to the injuries.

3.The Inves(cid:32)ga(cid:32)ng Officer, Sub-Inspector R.K. Chaudhary (PW6) carried the inves(cid:32)ga(cid:32)on, recorded statements, prepared site plan (Ext. Ka-3),

collected plain earth as well as blood stained earth from the place of occurrence and a(cid:68)er conduc(cid:32)ng inquest at the hospital, sent the dead

body for postmortem. The accused Mukh(cid:32)ar was arrested on 29.3.1993 near village Bacchrota and from his possession one illegal pistol of 315

bore and one ammuni(cid:32)on cartridge (Ext.K.13) were recovered. On 8th April, 1993 the I.O. recorded the statements of other accused Omal and

Navin. A Tamancha, allegedly used in the crime, was later recovered at the instance of accused Ompal on 14.4.1993. The statement of the wife

of deceased (PW3) was recorded on 24.4.1993. A(cid:68)er concluding the inves(cid:32)ga(cid:32)on, the Judicial Magistrate, Hapur commi(cid:38)ed the case to the

Court of Sessions where charges were framed under Sec(cid:32)on 302, IPC read with Sec(cid:32)on 34, IPC against all the three accused and addi(cid:32)onally

charges were framed against accused Mukhtiar under Section 25 of the Arms Act. The accused pleaded not guilty and claimed to be tried.

4.At the trial, the prosecu(cid:32)on mainly relied on the evidences of complainantâ€"Naresh Pal (PW1) and eyewitnesses Dharmendra (PW2) and

Prakashee (PW3), wife of the deceased. The mo(cid:32)ve for commi(cid:74)ng the crime was said to be that there was enmity between the par(cid:32)es as

about three years before the date of occurrence, accused Mukhtiar was shot at and in that regard a case was in progress at Hapur Court in which

Mahipal (PW1) was accused. P.W. 4â€"Pratap Singh was examined as a witness to prove the conspiracy. P.W.5 is Dr. Hari Kishan Agarwal, who

had conducted the post mortem of deceased Mahipal. P.W. 6 S.I. R.K. Chaudharyâ€"I.O. and P.W. 7â€" Paltoo Ram, Head Constable are the

formal witness. At the end of the trial, the Trial Court came to the conclusion that the prosecu(cid:32)on has successfully proved the guilt of the

accused. Accordingly, the accused were convicted under Sec(cid:32)on 302 read with 34, IPC and sentenced to suffer life imprisonment and to pay a

fine of Rs. 5,000/- each and in default thereof, to further suffer six months rigorous imprisonment.

5.The trial Court’s judgment awarding convic(cid:32)on and sentence has been assailed by the accused by way of criminal appeal before the High

Court. On apprecia(cid:32)on of the material placed before it, the High Court recorded its finding that the prosecu(cid:32)on witnesses, on whose evidence

the trial Court has relied on, are not reliable. Accordingly, the High Court set aside the judgment of the trial Court and acqui(cid:38)ed all the three

accused. Dissa(cid:32)sfied with the acqui(cid:38)al order passed by the High Court, the State of U(cid:38)ar Pradesh has preferred the present appeal before this

Court.

6.We have heard the learned counsel appearing on behalf of the appellant and the learned Amicus Curiae appearing on behalf of the

respondents.

7.Learned counsel for the State vehemently contended the impugned order and submi(cid:38)ed that the High Court has failed to appreciate the

factum of presence of two eyewitnesses PWs 2 and 3 at the spot, who deposed in clear terms the way in which the accused carried the assault

on the deceased resul(cid:32)ng in his death. The injuries on the body of the deceased fully corroborates the prosecu(cid:32)on case and the medical

evidence also supports the case of prosecu(cid:32)on, but the High Court has, by se(cid:74)ng aside the well reasoned judgment rendered by the trial

Court, committed a grave error of law calling for this Court’s interference.

8.Learned Amicus Curiae, however, supported the view taken by the High Court and submi(cid:38)ed that there is no need for this Court to interfere

with the order of acquittal passed by the High Court.

9.Having heard learned counsel on either side, we have given our though(cid:78)ul considera(cid:32)on to the facts and circumstances of the case in the

light of material placed before us. It appears that the trial Court based its judgment mainly relying upon the evidences of three prosecu(cid:32)on

witness i.e. P.W.1â€"Naresh Pal, the complainant, PW2â€"Dharmendra, an eyewitness and PW3â€"Prakashee, another eyewitness and wife of

the deceased. However, in the view expressed by the High Court, the aforesaid witnesses are not credible. Since the en(cid:32)re prosecu(cid:32)on case

hinges on the deposi(cid:32)ons of these three witnesses, it is impera(cid:32)ve for the Court to scru(cid:32)nize their evidences properly so as to si(cid:68) the chaff

from the grain and find out the truth. In that pursuit, their evidences are to be considered from the point of view of credibility and

trustworthiness. Once the same stands satisfied, it ought to inspire confidence in the mind of the Court to accept the stated evidence.

10.Admi(cid:38)edly, the complainantâ€"PW1 has not witnessed the occurrence. He believed whatever Dharmendra (PW2) informed him and

accordingly he lodged the complaint. It is also indisputable that PW1 was inimical with the respondent party. There was also a criminal case

pending in Hapur Court rela(cid:32)ng to an incident of firing at the accused, in which the deceased as well as PW1 were accused and Respondent

No.3 herein was the vic(cid:32)m. It is evident from the record that on the aspect of how PW1 came to know about the incident, he made

contradictory statements. There was no independent witness and according to prosecu(cid:32)on, despite the efforts made by police to record

statements from the public, no one was ready to give evidence. As per the statement of PW1, besides PWs 2 & 3, two more persons Tej Pal and

Ram Swaroop have also witnessed the incident. It is quite unnatural that none of the eyewitnesses has lodged complaint, but on the basis of

information provided by Dharmendra (PW2), PW1 lodged the complaint believing the version of Dharmendra.

11.On the other hand, the conduct and statements of PW2 (Dharmendra) who was stated to be an eyewitness do not inspire confidence for the

reason that his deposi(cid:32)ons under Sec(cid:32)on 161, Cr.P.C. were quite different to what he stated before Court in his examina(cid:32)on-in-chief. He

could not even give a sa(cid:32)sfactory reason for his presence at the (cid:32)me and place of occurrence. Furthermore, he did not choose to lodge

complaint with the police by himself even though he had witnessed the occurrence as admi(cid:38)edly the complaint was lodged by PW1 on the

informa(cid:32)on provided by PW2. Apart from that, there were certain conflic(cid:32)ng statements in his evidence as regards how the deceased got

injuries, and also his conduct of not making a hue and cry and not disclosing to anyone about the occurrence on his way to the house of Naresh

Pal, gives rise to suspicion on the credibility and trustworthiness of PW2. When the evidence of PW2 itself is unbelievable and jeopardizing

the prosecution case, in no manner the evidence of PW1 could be given credence.

12.We are also not inclined to believe the conduct of PW3â€" wife of the deceased, who was stated to be in a shock and not in consciousness

for about a month a(cid:68)er the death of her husband. We find no valid documentary or medical evidence on record in support of the claim of

prosecu(cid:32)on that PW3 was really in such unconscious state for about a month. Looking at the unnatural behavior of eyewitnesses PWs 2 & 3 and

their contradictory statements, it cannot be said that their evidences are genuine so as to convict the accused.

13.Also there were some notable flaws in the prosecu(cid:32)on case which cannot be ignored. According to PW4 (Pratap Singh), on the previous

night of the incident, he along with one Jakar (not examined) heard the accused hatching conspiracy to murder the deceased, but the

prosecu(cid:32)on did not present Jakar as a witness. It is incredible on the part of PW4 that despite knowing about the conspiracy, he did not reveal

it to the victim party so as to save the life of the deceased. The trial Court also disbelieved his evidence.

14.The High Court, while apprecia(cid:32)ng the evidence of the three important witnesses i.e. PWs 1, 2 and 3, rightly disbelieved the presence of

PWs 2 and 3 at the place of occurrence and discredited the evidence of P.W.1â€"complainant. Undoubtedly, the prosecu(cid:32)on in its effort to

establish the case with the support of evidences of PWs 1, 2 and 3, has miserably failed to prove the guilt of the accused beyond reasonable

doubt. The High Court has, therefore, commi(cid:38)ed no illegality or manifest error in acqui(cid:74)ng the accused giving them the benefit of doubt,

under the circumstances. We express our concurrence with the findings recorded by the High Court for acqui(cid:74)ng the respondents. For the

aforesaid reasoning, we do not find any merit in this appeal calling for our interference under Article 136 of the Constitution.

15.Accordingly, the Criminal Appeal filed by the appellant â€" State of U.P. is dismissed.