Sumay Singh and Ant Ram vs State and Others

J.M. Malik, J.—Learned Additional District Judge acquitted all the four accused for offences under Sections 452, 304 read with Section 34 IPC vide impugned order dated 3rd October, 2002. Aggrieved by that order the complainant has filed the instant Criminal Revision Petition. Adumbrated in brief, the prosecution case is this. The family of Sumay Singh owns a vacant plot measuring 340 yards at Pushta Road. Sumay Singh, complainant had already obtained a stay order from the Civil Court. Accused/respondent Hari Ram is his uncle. Sumay Singh informed him that he had purchased the said plot and he should not trespass the same as they had obtained the stay order. On 19th November, 1998 at about 8.45 AM Ant Ram, younger brother of Sumay Singh was present in his house. Accused Hari Ram accompanied by his sons accused Kalluram @ Ranbir, Bakshi Ram and one another person Mehar Chand accused, came to their house. They asked them that they would build a boundary on the above mentioned plot. Sumay Singh requested them that let the matter be decided by the Court. Hari Ram while addressing his other co-accused asked them that Sumay Singh and Ant Ram would not agree like that and they should be taught a lesson. They started abusing them. Hari Ram and Bakshi Ram caught hold of Ant Ram. Mehar Chand took out a small sword from his pyjama. He thrust the sword on the left hand of Ant Ram. Sumay Singh tried to save his brother Ant Ram, in the meantime Hari Ram asked Kallu Ram to shoot them. Consequently Kallu Ram fired a shot from his revolver at Ant Ram, which hit on the left arm of Ant Ram. In the meantime, people gathered at the spot and the accused fled away.

The prosecution examined 14 witnesses in support of their case. Out of whom, Sumay Singh, PW-4, Ant Ram, PW-6, Raj Singh, PW-9, Narinder, PW-10 and Aatbeer Singh, PW-11 are the eye witnesses. PW-4 and PW-6 have supported the prosecution case down the line.

The second story comes out from the mouths of PW-9 and PW-10. Raj Singh and Narinder made a departure from the prosecution story. They deposed that their attention got arrested by a quarrel. Raj Singh found that Ant Ram was having a country made revolver in his hand, he could not trigger the same, threw the same, lifted a Naal, filled the same with explosive material, when Sumay Singh tried to snatch the said Naal firing took place from the Naal and Ant Ram fell down. The statement of Narinder is almost the carbon copy of deposition made by Raj Singh. It is not out of place to mention here that the APP did not cross-examine these witnesses because both of them made the same statements u/s 161 Cr.P.C.

The third story was introduced by PW-11. A bare look on his testimony goes to show that he did not latch on to the prosecution story. He testified that while he was returning from his night duty, he got attracted by a quarrel taking place between Sumay Singh and Bakshi Ram. He deposed that he heard that someone used the Naal from roof of the house. He denied having seen this incident. It is interesting to note that neither PW-8 nor PW-9 nor PW-11 mentioned about the sword. No such questions were ever asked during their cross-examination.

Dr. Rajpal, GTB Hospital, PW-2, Dr. N.K. Sinha, Dy. Medical Superintendent, PW-5, proved MLC of Ant Ram Ex. PW 3/A which is reproduced as follows :

1.Gunshot injury wound on left arm,

Incised wound measuring 5 cm in left cubital fossa

Rest are the formal witnesses. The defense set up by the accused is that a property dispute is pending between the parties. Both the parties were facing cross cases. The Naal was recovered from the roof of the house of Sumay Singh. Ant Ram attempted to injure the accused with the help of Naal. Sumay Singh tried to snatch away the same from Ant Ram and during snatching process Ant Ram fell down and received injuries.

The Additional Sessions Judge acquitted the accused on the following grounds : (i) no independent witness had supported the prosecution case (ii) two sets of witnesses have given different versions (iii) property dispute was an apple of discard between the parties (iv) complainant was facing criminal cases (v) PW-4 and PW-6 were interested witnesses and their statements were contradictory, conflicting and improvements were made by PW-4 in his testimony.

I have heard the counsel for the parties. The most telling argument urged by learned Counsel for the complainant/revisionist was that the mere fact that independent witnesses did not support the prosecution case does not create propitious conditions for the accused. He strenuously argued that there lies no rub in basing the conviction on the sole testimonies of complainant and his brother. He drew my attention towards an authority reported in Krishna Mochi and Others Vs. State of Bihar, where it was held that it is the quality of evidence that matters and not the number of witnesses. It was further held that credible evidence of even a solitary witness can form the basis of conviction. He also drew my attention towards the same authority where it was held that contradictions, inconsistencies, exaggerations or embellishments are inevitable. It was further held that a discrepancy existing in a prosecution case should not weigh with the Court so long it does not materially affect the case. It was further held that the duty of the Court is not only to see that no innocent man should be punished but also to ensure that no person committing an offence should get scot-free. It was also held that even if a major portion of evidence is found to be deficient, in case residue is sufficient to prove the guilt of an accused, notwithstanding acquittal of number of other co-accused persons, his conviction could be maintained. It was also argued on behalf of the accused that enmity card is a double edged sword which can cut both the sides. The case of the prosecution should not be thrown away merely on the ground that inimical relations subsisted between the parties. In support of his case he has also cited an authority reported in State of U.P. Vs. Ramesh Prasad Misra and another, He also argued that the medical evidence goes to corroborate the version given by the injured. In support of his case he has cited another judgment reported in State of U.P. v. Jagdeo and Ors. 2002 X AD (SC) 401. The learned Counsel for the complainant further submitted that non-examination of material witnesses leaves no impression on the facts of the prosecution case. In order to buttress his contention, he has cited the judgment in Krishna Mochi and Ors. v. State of Bihar case (supra). He has also explained that non-recovery of revolver or sword does not affect the prosecution story.

It is interested to note that counsel for both the parties, complainant as well as the respondents prayed that case should be remanded and they want to lead further evidence in support of their respective cases.

After mulling over the evidence, I find that the prosecution case is at sixes and sevens. A dichotomy is clearly discernible in the statements made by the prosecution witnesses. It was laid down in para 11 of the judgment in Nandkishore Ganesh Joshi v. Commissioner, Municipal Corporation of Kalyan and Dombivali and Ors. 2004 X AD SC 352 which is reproduced as under :

The respective stands need careful consideration. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favorable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002) (2) sc 567 . The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Another Vs. State of Maharashtra, Ramesh Babulal Doshi v. State of Gujarat (1996) (4) sc 167, Jaswant Singh v. State of Haryana 2000 (3) Sc 320, Raj Kishore Jha v. State of Bihar and Ors. 2003 (7) Sc 152, State of Punjab v. Karnail Singh 2003 (5) Sc 508 and State of Punjab v. Pohla Singh and Anr. 2003 (7) Sc 17.

This is a unique case. The entire prosecution case is a pristine story. All the above stands set up by the prosecution witnesses are polls apart and heterogeneous. It has left the door open for intrigue. In view of the conflicting stands set up by the prosecution an integument of suspicion envelopes the prosecution case. It is well settled that the suspicion cannot take place of the proof. The entire story of the prosecution is inherently defective. The statements given by the prosecution witnesses u/s 161 Cr.P.C. were recorded as per statements made by them before the Investigating Officer. The judgment cited by the defense counsel in the case of State of U.P. v. Ramesh Prasad Misra and Anr. (supra) on the contrary neatly dovetails with the facts of this case. The said portion is re-produced as hereunder :

The evidence of a hostile witness would not be totally rejected is spoken in favor of the prosecution or the accused, but it can be subjected to close scrutiny and that portion of the evidence which is consistent with the case of the prosecution or defense may be accepted. The fact that the hostile witnesses having given the statements about the facts within their special knowledge u/s 161 recorded during investigation, have resoled from correctness of the versions in the statements without giving any reason as to why the investigating officer could record statements contrary to what they had disclosed shows that they had no regard for truth; they fabricated the evidence in their cross-examination to help the accused which did not find place in their Section 161 statements.

(emphasis supplied)

It was known that the investigating officer recorded the statements of the prosecution witnesses under Sections 161 Cr.P.C. It has to be presumed that he correctly recorded their statements, in view of the above said authority. I see no reason to discard the same. It is also clear that the far-fetched authorities cited by the defense counsel have hardly any application to the facts of this case.

It is clear that the victim had received the injury. All witnesses have stated this fact. Under these circumstances, mere medical evidence does not form sufficient corroboration. Had there been recovery of sword, cartridge and revolver coupled with Chemical analysis, it would have gone a long way to embolden this case. Sub-Inspector Chander Bhan deposed that one Naal was found at the spot which was taken into possession vide memo Ex. PW 1/A. Pw 4 and PW 6 have denied the presence of any Naal. Non-recovery of revolver/cartridge and sword casts a film of doubt, whether the story propounded by the victim is made out of whole cloth. This is difficult to fathom as to why the "Naal" was not sent to CFSL. Investigation officer explained that he had not got the necessary permission till the eleventh hour. This is clear that investigation of this case was done in a happy-go-lucky manner. Again, Sumay Singh could not produce the documents regarding the above said stay orders.

I am of the considered view that the learned Additional Sessions Judge has meticulously scrutinised the evidence. He has nowhere missed the wood for the trees. I add my voice to his and dismiss the revision petition. The LCR and copy of this order be sent to the trial court, forthwith.