JOGINDER SINGHversusSTATE OF HARYANA

                        [2013] 11 S.C.R. 446


A                        JOGINDER SINGH
                                   v
                       STATE OF HARYANA
                (Criminal Appeal No. 1148 of 2007)
                        OCTOBER 24, 2013
8
       [K.S. RADHAKRISHNAN AND DIPAK MISRA, JJ.]

         Penal Code, 1860 - ss. 302 and 307 r/w. s. 34 - Arms
    Act, 1959 - ss. 25 and 27 - Prosecution under - Of three
C · accused including appellant-accused - Acquittal of all the
    accused by trial court giving them benefit of doubt - High
    Court convicted the appellant-accused while maintaining the
    acquittal order in respect of other accused - Held: The High
    Court has unsettled the reasonable findings of trial court in a
o cryptic manner - Trial court has rightly acquitted the accused
    in view of the material contradiction in oral evidence and
    ballistic report, non-examination of material witnesses
    including injured witnesses - Conviction set aside.

E       Appeal- Appeal against acquittal - Scope of jurisdiction
    of appellate court - Discussed.

        Appellant-accused alongwith other two accused
  were prosecuted for the offences1 u/ss. 302 and 307 r/w.
  s. 34 IPC and u/ss. 25 and 27 of Arms Act, 1959. As per
F the prosecution case accused persons attacked the
  victim party with firearms resulting in death of one and
  injuries to three persons. PWs 1, 2 and 3 were the eye-
  witnesses to the incident. The accused in their
  statements denied the incriminating evidence and stated
G that it were the people belonging to Harijan community
  who came to their house armed with firearms and fired
  at them indiscriminately and that they did not use any
  firearm. The trial court giving benefit of doubt acquitted
  all the accused of all the charges. The high Court relying
H                             446
     JOGINDER SINGH v. STATE OF HARYANA               447


on the evidence of eye-witnesses convicted the               A
appellant-accused, while acquitted the other accused
persons giving them benefit of doubt. Hence the present
appeal.
    Allowing the appeal, the Court
                                                             B
     HELD: 1.1. The High Court can exercise the power
or jurisdiction to reverse an order of acquittal in cases
where it finds that the lower court has "obstinately
blundered" or has "through incompetence, stupidity or
pen.fersity" reached such "distorted conclusions as to C
produce a positive miscarriage of justice" or has in some
other way so conducted or misconducted himself as to
produce a glaring miscarriage of justice or has been
tricked by the defence so as to produce a similar result. ·
[Para 13) (461-D-E]                                         D
     1.2. In the present case, the High Court has
compartmentalized the reasons ascribed by the trial
Judge and thereafter dislodged the same one by one. The
approach of the High Court in this regard cannot be
flawed, but a pregnant one, it is required to be examined    E
whether the High Court while dislodging the reasons and
substituting the findings has appositely reappreciated the
oral and documentary evidence brought on record to
come to the conclusion that the view taken by the trial
Judge is neither a plausible nor a reasonable one. [Para     F
16) [463-F-H]

    Sheo Swarup and Ors. vs. King Emperor AIR 1934 PC
227; Balbir Singh vs. State of Punjab AIR 1957 SC 216;
Khedu Mohton and Ors. vs. State of Bihar Ganesh Bhavan       G
Patel and Anr. vs. State of Maharashtra (1978) 4 SCC 371:
1979 (2) SCR 94; Awadhesh and Anr. vs. State of Madhya
Pradesh (1988) 2 SCC 557: 1988 (3) SCR 513; Ram Kumar
vs. State of Haryana 1995 Supp (1) SCC 248: 1994 (4)
Suppl. SCR 335; Bhagwan Singh and Ors. vs. State of M.P.     H
    448     SUPREME COURT REPORTS              [2013] 11 S.C.R.


A (2002) 4 SCC 85; State of Goa vs. Sanjay Thakran and Anr.
  (2007) 3 SCC 755: 2007 (3) SCR 507; Puran Singh vs. State
  of Uttaranchal (2008) 3 SCC 795: 2008 (1) SCR 491;
  Shivasharanappa and Ors. vs. State of Karnataka (2013) 5
  SCC 705; State of Rajasthan through Secretary, Home
B Deparlment vs. Abdul Mannan (2011) 8 SCC 65: 2011 (7)
  SCR 1099; Murugesan S/o Muthu and Ors. vs. State through
  Inspector of Police 2012 (10) SCALE 378 - relied on.

         2.1. Though there has been compartmentalization of
    the reasoning, basically there are aspects which require
C   scrutiny. The trial Judge had not accepted the credibility
    of the prosecution witnesses about the involvement of the
    accused in firing as a result of which the deceased and
    the injured persons sustained injuries. For supporting the
    same he had given emphasis on certain discrepancies.
D   The trial Judge had recorded the discrepancies and
    referred to the ballistic report to support his conclusion
    that the prosecution had not established the case and in
    all possibility had tried to protect the real assailants. On
    a perusal of the ballistic report, it is manifest that they
E   were not fired from the weapon, Ext.-15, seized from the
    house of the accused-appellant. The trial Judge had
    taken note of the fact that the pellets marks were there
    on the walls of the house of the appellant, which were
    visible from the photographs, Ext.-DA to DC. These
F   aspects show that there were also other persons present
    at the spot who had come with arms. It is demonstrable
    from the material brought on record that there were
    people from the Harijan community who had come to the
    disputed land and fired at the house of the accused
G   persons. The said conclusion is buttressed from the fact
    that the empties found from the spot were not fired from
    the gun of the accused. The High Court while lancinating
    the finding of the trial Judge on this score has only given
    a cryptic opinion without any reason that it does not
H   create a dent on the prosecution case. Such unsettling
     JOGINDER SINGH v. STATE OF HARYANA                  449


of a reasonable finding in a cryptic manner is not              A
acceptable. It creates a grave dent on the version
advanced by the prosecution. (Para 17 and 18] (465-D-H;
466-A-C, D-E]

      2.2. The trial Judge on the analysis of the material on   8
record had not accepted the prosecution version that the
accused persons forcibly entered upon the land and
installed the combine harvester. In fact, as the evidence
would reveal, the combine harvester was installed much
prior to the date of occurrence. The view taken by the trial
Judge in this regard for the aforesaid limited purpose is       C
a plausible one. The said finding by itself is of no
consequence but it has been recorded to support and
sustain the finding that the accused-appellant and his
relations did not by force enter upon the disputed land
and put the combine harvester. The trial Judge, on the          D
aforesaid base, had held that there was no intention on
the part of the accused persons and the High Court has
opined that the question of motive or intention is
inconsequential when there is direct evidence on record.
It is settled in law that when there is direct evidence, the    E
proof of intention is not necessary. However, the analysis
of the trial Judge would go a long way to show that he
had meticulously scrutinized the evidence relating to
factum of possession of the land to highlight that the
accused persons had no intention to forcibly enter upon         F
the land and assert their right. As is evincible from the
deposition of the witnesses that the combine haniester
was there on the disputed land and the accused persons
had not encroached upon the land to assert their
possession. To that extent the finding of the trial Judge       G
cannot be found fault with. [Para 16) [464-E-H; 465-A-D]

    2.3. The trial Judge has disbelieved the version of the
prosecution relating to firing by the appellant on the
deceased and other injured persons on two counts,
                                                                H
    450     SUPREME COURT REPORTS               [2013] 11 S.C.R


A namely, the range from which it was fired on the
  deceased and there was no material on record to
  connect the injuries with the seized fired arms. As far as
  the facet of the distance is concerned, the opinion of the
  High Court seems to be sound. But the fact remains that
B there is no material on record to connect that the gunshot
  injuries suffered by the deceased are due to the shots
  fired from the gun of the appellant. It is also discernible
  that though the pellets were recovered but the same have
  not been connected with the weapon. Thus, there is a
c material contradiction in the oral evidence adduced by the
  prosecution on one hand and the ballistic report on the
  other. [Para 19) [466-E-H; 467-A]

       Brijpal Singh vs. State of Madhya Pradesh (2003) 11
    sec 219 - relied on.
D
       2.4. In the present case, the ballistic report, Ext. P.UU,
  though refers to the mutilated pellets stated to have been
  recovered from the body of the deceased and also the
  two different leads pellets from the body of another
E injured person, but is not definite that .12 bore DBBL gun,
  Ext. W/1, that was seized from the appellant, was used
  for firing such gunshots. This fact has been totally
  ignored by the High Court in an extremely cryptic
  manner. [Para 21) [468-B-C)
F     2.5; The prosecution has not examined husband of
  the deceased, a relevant eye witness and three other
  injured witnesses. Non-examination of the material
  witness is not a mathematical formula for discarding the
  weight of the testimony available on record howsoever
G natural, trustworthy and convincing it may be. The charge
  of withholding a material witness from the court levelled
  against the prosecution should be examined in the
  background of the facts and circumstances of each case
  so as to find.whether the witnesses are available for being
H
     JOGINDER SINGH v. STATE OF HARYANA                451


examined in the court and were yet withheld by the            A
prosecution. [Para 22] [468-D-F]

    State of H.P. vs. Gian Chand (2001) 6 SCC 71: 2001 (3)
SCR 247; Takhaji Hiraji vs. Thakore Kubersing Chamansing
(2001) 6 SCC 145; Manjit Singh and Anr. vs. State of Punjab
                                                              B
and Anr. JT 2013 (11) SCALE 394 - relied on.

     2.6. In the present case, non-examination of the
material witne$ses is of significance. It is so because PW-
11 is really an interested witness though the High Court
has not agreed with the same. It appears from the material C
brought on record that he had an axe to grind against the
appellant. That apart, husband of the deceased, who was
present from the beginning, would have been in a
position to disclose more clearly about the genesis of the
occurrence. There is no reason why the prosecution had o
withheld the said witness. Similarly, the other three
witnesses who are said to be injured witnesses, when
available, should have come and deposed. Therefore, in
the obtaining factual matrix that their non-examination .
gains significance. [Para 25] [470-C-D]                     E

     2. 7. The case of the prosecution was that accused
'M'had snatched away the gun and fired at two persons.
The trial Judge disbelieving the prosecution version had
acquitted him. The High Court has given him benefit of
doubt. Regard being had to the totality of evidence, both     F
oral and documentary, there was no reason not to extend
the said benefit of doubt to the appellant. The High Court
has fallen into error on that score. [Para 26] [470-E-F]

    Chandu vs. State of Maharashtra (2002) 9 SCC 408;         G
Rathinam @ Rathinam vs. State of Tamilnadu and Anr. (2011)
11 SCC 140: 2010 (11) SCR 871; Ram Narain Singh vs.
State of Punjab (1975) 4 SCC 497: 1976 (1) SCR 27;
Mahendra Pratap Singh vs. State of Uttar Pradesh (2009) 11
SCC 334: 2009 (2) SCR 1033; Ram Bali vs. State of Uttar       H
    452   SUPREME COURT REPORTS              [2013] 11 S.C.R.


A   Pradesh AIR 2004 SC 2329: 2004 (1) Suppl. SCR 195 -
    referred to.
                        Case Law Reference:
      (2002) 9 sec 408         referred to         Para 11
B
      2010 (11) SCR 871        referred to         Para 11
      1976 (1) SCR 27 ·        referred to         Para 11
      2009 (2) SCR 1033        referred to         Para 11
c     2004 (1) Suppl. SCR 195 referred to          Para 12
      AIR 1934 PC 227          relied on           Para 13
      AIR 1957 SC 216          relied on           Para 14
      1979 (2) SCR 94          relied on           Para 14
D
      1988 (3) SCR 513         relied on           Para 14
      1994 (4) Suppl. SCR 335relied on             Para 14
      (2002} 4 sec 85          relied on           Para 14
E
      2007 (3) SCR 507         relied on           Para 14
      2008 (1) SCR 491        relied on            Para 14
      (2013} 5 sec 105        relied on            Para 14
F     2012 (10} SCALE 378     relied on            Para 15
      2011 (7) SCR 1099       relied on            Para 15
      (2C03) 11 sec 219       relied on            Para 20

G     2001 (3) SCR 247        relied on            Para 22
      (2001) 6 sec 145        relied on            Para 23
      JT 2013 (11) SCALE 394 relied on             Para 24

H
      JOGINDER SINGH v. STATE OF HARYANA                    453


    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal               A
No. 1148 of 2007.

    From the Judgment & Order dated 09.05.2007 of the High
Court of Punjab and Haryana at Chandigarh in Criminal Appeal
No. 702-DBA of 1997.                                               B
    Neeraj Jain, Akshat Goel, Shree Pal Singh for the
Appellant.

     Rajeev Gaur 'Naseem', Naresh Bakshi for the Respondent.

     The Judgment of the Court was delivered by
                                                                   c
     DIPAK MISRA, J. 1. The present appeal under Section
 379 of the Code of Criminal Procedure, 1973 (for short "CrPC")
.is directed against the judgment of conviction and order of
 sentence dated 9.5.2007 passed by the High Court of Punjab        D
 and Haryana at Chandigarh in Criminal Appeal No. 702-DBA
 of 1997 whereby the High Court has partly reversed the
 judgment of acquittal dated 9.6.1997 recorded by the learned
 Additional Sessions Judge, Kaithal in Sessions Trial No. 15 of
 1993 instituted for offences punishable under Sections 302 and    E
 307 read with Section 34 of the Indian Penal Code (IPC) and
 under Sections 25 and 27 of the Arms Act against the appellant
 and two others and convicted the appellant alone under Section
 302 IPC and sentenced him to undergo rigorous imprisonment
 for life.                                                         F

     2. Filtering the unnecessary details the broad essential
facts, as put forth by the prosecution, are that there was a
dispute about the vacant plot of shamlat land where the
complainant and his family members used to store their
respective kurris (heap of rubbish). The said land was given to    G
Guru Ravidass Mandir by the Gram Panchayat vide resolution
dated 22.03.1989. Accused Joginder Singh and Mohinder
Singh, both real brothers kept on asserting their ownership over
the said land and were not prepared to surrender it. Both the
accused were booked twice under sections 107 and 151 of            H
    454      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A    CrPC relating to the said land. On 1511.1991 about 4:00 pm.,
    Joginder Singh parked his combine harvester on the disputed
     land which was objected to by deceased Kamla wife of
    Chander, Murti, wife of Dharambir, Bala, daughter of Sita Ram
    and other ladies present at that time. But Joginder Singh did
B   not pay any heed to the objection raised by the women, and
    abused them. In the meantime Chander, Dharambir, PW-3, and
    Mithan Singh, PW-2, came outside and asked accused
    Joginder Singh not to park his combine harvester on the
    disputed land. At that juncture, Mohinder Singh and Anokh
c   Singh, nephew of the accused, arrived at the scene and all of
    them started abusing the complainant and other women. The
    initial altercation took a violent turn and both the parties
    grappled with each other. During the fight accused persons ran
    away to their houses and returned with weapons. Joginder
    Singh came armed with a DBBL .12 bore gun while the other
0
    two accused did not bring any weapon. As the prosecution story
    proceeds, both of them raised a 'lalkara' in filthy language to
    kill the members of other side. Accused Joginder Singh fired
    two shots from his gun pellets of which hit in the chest of Kamla
E   and Bala and also in the chest and mouth of Mithan Singh, PW-
    2. Accused Mohinder Singh snatched the gun from Joginder
    Singh and fired two shots that hit the back of Simla and the
    stomach region and thigh of Murti. The injured persons fell down
    on the ground on receipt of gunshot injuries. After hearing the
    gunshot number of villagers came to the place of occurrence
F   whereafter the accused persons took to their heels. Kamla
    succumbed to her injuries on the spot and her husband was
    asked to stay back to guard the dead body of his wife. Pritam
    Singh, PW-1, Karambir, Mamu Ram and others took the other
    injured persons in a vehicle to Civil Hospital, Kaithal. Pritam
G   Singh went to Police Station to lodge the FIR and his statement
    was recorded by the Inspector of Police, .Prem Chand, PW-16,
    and an FIR was registered at 8:30 pm.

     3. After the criminal law was set in motion, the investigating
H agency commenced the investigation and in course of
      JOGINDER SINGH v. STATE OF HARYANA                     455
               [DIPAK MISRA, J.]
investigation, Prem Chand, PW-16, prepared the inquest               A
report, got the site plan done, collected the blood-stained earth
and the pellets lying at the spot, sent the dead body for the post
mortem and forwarded the articles to the Forensic Science
Laboratory for examination, arrested th~ accused persons,
recovered DBBL .12 bore gun and live cartridges, recorded the        B
statements of other witnesses and after completing all other
formalities laid the charge sheet for the offences punishable
under Sections 302 and 307 read with Section 34 IPC and
Sections 25 and 27 of the Arms Act before the competent court
which, in turn, committed the same to the Court of Session. The      c
accused persons pleaded not guilty to the charges and claimed
to be tried.

     4. To substantiate the charges the prosecution examined
as many as 16 witnesses. The main witnesses are Pritam
Singh, PW-1, the complainant, Mithan Singh, PW-2, Dharambir,         D
PW-3, the eye witnesses to the occurrence, Dr. B.B. Kakkar,
PW-4, who examined the injured, Dr. AK. Leel, PW-8, who had
conducted the post-mortem and also had examined the other
injured witnesses; Zile Singh, PW-11, Sarpanch of the Gram
Panchayat and Inspector Prem Chand, PW-16, the investigating         E
officer of the case. The prosecution had exhibited number of
documents which included the report of the Chemical Examiner,
Ex. P.TT and report of Serology, Ex. P.TT/1 and report of
Ballistic Expert, Ex. P.UU.
                                                                     F
     5. The accused in their statements recorded under Section
313 CrPC denied the incriminating evidence appearing against
them. They admitted that Joginder Singh and Mohinder Singh
are real brothers and Anokh Singh is their sister's son. Accused
Joginder Singh took the plea that he had been using the land         G
where the combine harvester was installed since long and the
Harijan community wanted to forcibly occupy the said land. On
the date of occurrence, people belonging to Harijan Community,
both men and women, armed with fire-arms and other weapons
came to his house and fired and he was compelled to hide
                                                                     H
    456      SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A himself in his house to save his life. Persons of Harijan
  community started firing indiscriminately at his house where he
  was hiding. In that process the injured and deceased received
  injuries. He did not use his gun at all nor was his gun taken by
  Mohinder Singh at any time. Accused Mohinder Singh and
B Anokh Singh took the plea that they had no concern with the
  land or with the combine harvester and they were not present
  at the spot.

          6. Learned Addi. Sessions Judge, Kaithal, considering the
C    evidence brought on record, acquitted all the accused of the
     charges under sections 302 and 307 read with Section 34 IPC
     and Sections 25 an~ 27 of the Arms Act on the ground that the
     prosecution had failed to prove its case against the accused
    beyond all reasonable doubt. To come to such a conclusion the
    learned trial Judge, after due perusal of the evidence and
D   material brought on record, took note of various aspects,
    namely, a litigation was pending as regards the possession
    between the Guru Ravidass Mandir Sabha and the accused
    persons and the complainant had nothing to do with the land;
    that there had been dispute between Joginder Singh on one
E   hand and Harijan community on the other with regard to the plot
    which is situate in front of the house of Joginder where the
    alleged occurrence had taken place; that after coming from
    Pakistan the father of the accused Joginder Singh had settled
    in the village at the very site; that a Civil Suit No. 191 of 1990
F   titled as "Guru Ravidass Sabha Sangan vs. Joginder Singh and
    Mohinder Singh" was filed in the Court of Civil Judge, Senior
    Division, Kaithal and an interim order of stay was passed in
    favour of the· Sabha which was vacated by order dated
    15.3.1991 directing the parties to maintain status quo till the
G   decision of the suit and, eventually, the suit was dismissed on
    24.10.1994 for want of prosecution; that though some
    resolutions were passed by the Gram Panchayat in favour of
    the Guru Ravidass Sabha, yet the land was in possession of
    Joginder Singh and there was no record that Panchayat had
H   delivered possession to anyone; that the complainant, Pritam
      JOGINDER SINGH v. STATE OF HARYANA                        457
                [DIPAK MISRA, J.]
Singh, PW-1, was concealing the truth from the court inasmuch           A
as he denied the obvious fact reflectible at a mere glance of
the photographs, Exts. DA to DC, to the effect that there were
pellets marks on the wall of the house of the accused; that
Mithan Lal, PW-2, who had stated that he had received injury
on his left eye and had lost his eye sight though was able to           B
identify other things yet expressed his inability to identify the
photographs Exts. DA to DC that show the house of the
accused; that Zile Singh, PW-11, was an interested witness as
Joginder Singh had got an enquiry conducted against him while
Zile Singh was the Sarpanch of the village and he had                   c
deliberately not identified the house of the accused in the
photographs, Exts. DA to DC, on the ground that his eye sight
was weak. These findings were recorded to highlight that the
accused-appellant was in possession of the land in dispute and
the members of the Harijan community came armed with                    D
weapons to forcibly take possession.

      7. The learned trial Judge thereafter addressed ,to the
injuries sustained by various injured persons and found that the
case that was put forth initially by the prosecution and the
medical report were different and he did not think it prudent to        E
believe such evidence. He also noticed that there were
irreconcilable discrepancies between the weapon used and the
injuries sustained. He also noticed that Dr. Leel, PW-8, had
sent a report, Ext. P2 by which he had sent two pellets
recovered from the body of Murti in a sealed parcel to the SHO,         F
Police Station, Sadar, but the serology report Ext. P.TT/1
showed that there was no blood on the pellets and further the
said witness had deposed that he had not put any identification
mark on the pellets.
                                                                        G
     8. Thereafter, the learned trial Judge, relying on the ballistic
report, Ext. P.UU, opined that the .12 bore fired cartridges
cases C1 to C4 were fired from a fire-arm but not from DBBB
gun W/1, Ext 15, the weapon that was seized from the custody
of the accused Joginder Singh. He also took note of the fact            H
    458      SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A that the ballistic report though referred to the mutilated pellets
  that had hit the deceased, yet did not give any opinion. These
  findings were recorded to form an opinion that the members
  of Harijan community armed with weapons were present at the
  spot and the injuries inflicted upon the deceased occurred in a
B different way than the one projected by the prosecution. Being
  of this view he found that the prosecution had failed to establish
  its case beyond reasonable doubt against the main accused
  Joginder Singh and resultantly against the other accused
  persons also and, accordingly, acquitted all of them.
c         9. The High Court, in appeal, enumerated the reasons of
     acquittal given by the learned trial Judge and thereafter came
     to hold that rejection of the version of the eye witnesses was
     not valid; that factum of motive was of no significance as there
    was direct evidence on record; that the discrepancies which
D   were taken note of by the learned trial Judge were incorrect;
    that the learned trial Judge had misdirected himself by relying
    on the medical opinion when the account of the eye witnesses
    was credible and trustworthy; that the learned trial Judge had
    not kept himself alive to the principle that while appreciating the
E   evidence that injuries when caused by fire-arms there can be
    variety of wounds depending upon the nature of fire-arm used,
    distance, direction, manner and other factors; that the trial
    Judge had also erroneously appreciated the nature of gunshot
    injuries, for such appreciation is contrary to the medical
F   jurisprudence; that there was a serious dispute with regard to
    possession and the trial court had wrongly presumed the factum
    of possession; that the reason given that when the accused
    persons had left the place of occurrence it is a normal conduct
    of a   person to go back to his house is contrary to the
G   acceptable norms of appreciation of evidence; that the pellet
    marks on the wall shown in the photographs do not
    improbablise the version of the prosecution, more so, when
    none of the accused persons were injured; that the discrepancy
    noted in the injuries sustained by Pritam Singh, PW-1, was
H   inconsequential; that there was no justification to reject the
      JOGINDER SINGH v. STATE OF HARYANA                      459
                [DIPAK MISRA, J.]
testimony of Zile Singh, PW-11, on the ground that he was             A
inimically disposed towards the accused; that the nature of
injurie~ sustained by Dharambir, PW-3, should not have been
disbelieved on the ground that the nature of weapon described
was different; that the. report of ballistic expert showed that the
cartridges were fired from the same weapon but not from W-            B
1, would not belie the prosecution version; and that the
discrepancy of range of gun and distance of the injured as found
by the learned Judge was not material. After unsettling the said
reasons the High Court opined that the view expressed by the
learned trial Judge was not a plausible one and the case of the       c
prosecution stood fully established against the appellant, as far
as causing the death of Kamla iz concerned and, accordingly,
convicted him under Section 302 IPC and sentenced him to
                                    io
suffer life imprisonment and also pay a fine of Rs.5000/-, in
default of payment of fine, to further undergo rigorous
                                                                      0
imprisonment for one year. However, the High Court gave
     ' of doubt to Mohinder Singh and Anokh Singh.
benefit
    10. We have Heard Mr. Neeraj Jain, learned senior
counsel appearing for the appellant and Mr. Rajeev Gaur
'Naseem', learned counsel appearing for the State of Haryana.         E
      11. Mr. Neeraj Jain, learned counsel for the appellant, has
submitted that the High Court has fallen into grave error by
opining that the view expressed by the learned trial Judge was
perverse and not a plausible one though the learned trial Judge
has scrutinized the evidence in a detailed manner and the             F
opinion expressed is a well reasoned one. It is urged by him
that though the High Court has enumerated the reasons given
by the trial court and thereafter unsettled them, yet the reasons
ascribed by the High Court for taking a different view is not
sound inasmuch as there has been really no proper                     G
consideration of the evidence which is obligatory on the part
of the appellate court to do while dislodging the findings
recorded by the trial court. It is urged that the major
discrepancies in the statement of three star witnesses of the
prosecution, namely, Pritam Singh, PW-1, Mithan Singh, PW-            H
    460       SUPREME COURT REPORTS               [2013] 11 S.C. R.


A 2, and Dharambir, PW-3, with regard to the genesis of
  occurrence has been overlooked by the High Court. He has
  further put forth that the photographs of the site plan were taken
  by the investigating agency and nothing had come on record
  that the accused persons had caused the pellet [Tlarks and,
B therefore, when the witnesses deliberately did not identify the
  photographs despite being proven and brought on record
  makes the version of the defence that the complainant party
  was also armed with weapons and attacked on the house of
  the accuse~-person cannot be ignored. The learned counsel
c would emphatically argue that the High Court has cryptically
  ignored .the ballistic report which clearly showed that the empty
  cartridges recovered from the spot were found not to have been
  fired from the gun of the accused-appellant which fortifies the
  defence version that the accused never fired. That apart,
  submitted Mr. Jain, that the ballistic report has not been
0
  discussed by the High Court, for the said report does not
  connect the mutilated pellets found from the body of the
  deceased with the weapon seized from the appellant. He also
  canvassed that an important aspect has not been taken note
  of by the High Court, as is evincible from the evidence of
E Inspector Prem Chand, PW-16, the Investigating Officer, that
  he was pressurized to proceed against the appellant and his
  relations and it is further obvious as the prosecution has not
  examined Chander, husband of the deceased, and three other
  women, namely, Bala, Murti and Bimla who were alleged to
F have sustained injuries in the occurrence. To bolster his
  contentions, he has commended us to the decisions rendered
  in Sheo Swarup & others v. King Emperor, 1 Chandu v. State
  of Maharashtra, 2 Murugesan S/o Muthu and others v. State
  through Inspector of Po/ice 3, Rathinam @Rathinam v. State
G of Tamilnadu and another, 4 Ram Narain Singh v. State of
    1.   AIR 1934 PC 227.
    2.   c2002) 9 sec 408.
    3. · 2012 (10) SCALE 378.
H   4.   c2011) 11 sec 140.
       JOGINDER SINGH v. STATE OF HARYANA                     461
                 [DIPAK MISRA, J.]
Punjab 5 , Brijpal Singh v. State of Madhya Pradesh 6 and             A
Mahendra Pratap Singh v. State of Uttar Pradesh. 7
      12. Mr. Rajeev Gaur 'Naseem', learned counsel appearing
for the State, supporting the judgment of the High Court,
submitted that though there is a discrepancy in the ballistic
                                                                  8
report, yet the substantive evidence of the three eye witnesses,
including one injured eye witness, cannot be rejected. He has
relied on the authority in Ram Bali v. State of Uttar Pradesh 8 •
It is his further submission that the High Court has correctly
opined that the judgment of acquittal rendered by the learned.
trial Judge was perverse and deserved to be interfered with.      C
      13. Before we proceed to consider the rivalised
contentions raised at the bar and independently scrutinize the
relevant evidence brought on record, it is fruitful to recapitulate
the law enunciated by this Court pertaining to an appeal against      o
acquittal. In Sheo Swarup (supra). it has been stated that the
High Court can exercise the power or jurisdiction to reverse an
order of acquittal in cases where it finds that the lower court
has "obstinately blundered" or has "through incompetence,
stupidity or perversity" reached such "distorted conclusions as       E
to produce a positive miscarriage of justice" or has in some
other way so conducted or misconducted himself as to produce
a glaring miscarriage of justice or has been tricked by the
defence so as to produce a similar result. Lord Russel,
authoring the judgment for the Prevy Council, opined thus: -
                                                                      F
      "Sections 417, 418 and 423 of the Code give to the High
      Court full power to review at large the evidence upon which
      the order of acquittal was founded, and to reach the
      conclusion that upon that evidence the order of acquittal
      should be reversed. No limitation should be placed upon         G
      that power, unless it be found expressly stated in the Code.
5.   (1975) 4 sec 497.
e.   (2003) 11 sec 219.
1.   (2009) 11 sec 334.
8.   AIR 2004 SC 2329.                                                H
    462        SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A         But in exercising the power conferred by the Code and
          before reaching its conclusions upon fact, the High Court
          should and will always give proper weight and
          consideration to such matters as ( 1) the views of the trial
          judge as to the credibility of the witnesses; (2) the
B         presumption of innocence in favour of the accused, a
          presumption certainly not weakened by the fact that he has
          been acquitted at his trial; (3) the right of the accused to
          the benefit of any doubt; and (4) the slowness of an
          appellate court in disturbing a finding of fact arrived at by
c         a judge who had the advantage of seeing the witnesses.
          To state this, however, is only to say that the High Court in
          its conduct of the appeal should and will act in accordance
          with rules and principles well known and recognized in the
          administration of justice."
D     14. The said principle has been followed in subsequent
  pronouncements in Balbir Singh v. State of Punjab 9, Khedu
  Mohton and others v. State of Bihar10 , Ram Narain Singh
  (supra), Ganesh Bhavan Patel and another v. State of
  Maharashtra 11 , Awadhesh and another v. State of Madhya
E Pradesh 12, Ram Kumar v State of Haryana 13, Bhagwan Singh
  and others v. State of M.P. 14 , State of Goa v. Sanjay Thakran
  and another15 , Puran Singh v. State of Uttarancha/ 16 ,
  Mahendra Pratap Singh (supra}, Murugesan Clo Muthu
  (supra) and Shivasharanappa and others v. State of
F Kamataka 17•

    9.   AIR 1957 SC 216.
    10. (1970) 2 sec 450.
    11. (1978) 4 sec 371.
G   12. (1988) 2 sec 557.
    13. 1995 Supp (1) sec 248.
    14. c2002J 4 sec 85.
    15. c2001) 3 sec 755.
    16. c2008J 3 sec 795.
H 11. c2013J 5 sec 705.
      JOGINDER SINGH v. STATE OF HARYANA                       463
                [DIPAK MISRA, J.]
      15. It is also worth noticing that in Murugesan's case the       A
Court referred to the decision in State of Rajasthan through
Secretary, Home Department v. Abdul Mannan 18 wherein
distinction between the statutory appeal and the legislative intent
was dealt with. The subsequent Division Bench reproduced a
passage from Abdul Mannan's case which is extracted below:-            B

     "12. As is evident from the above recorded findings, the
     judgment of conviction was converted to a judgment of
     acquittal by the High Court. Thus, the first and foremost
     question that we need to consider is, in what circumstances       C
     this Court should interfere with the judgment of acquittal.
     Against an order of acquittal, an appeal by the State is
     maintainable to this Court only with the leave of the Court.
     On the contrary, if the judgment of acquittal passed by the
     trial court is set aside by the High Court, and the accused
     is sentenced to death, or life imprisonment or                    D
     imprisonment for more than 10 years, then the right of
     appeal of the accused is treated as an absolute right
     subject to the provisions of Articles 134(1 )(a) and
      134(1)(b) of the Constitution of India and Section 379 of
     the Code of Criminal Procedure, 1973. In light of this, it is     E
     obvious that an appeal against acquittal is considered on
     slightly different parameters compared to an ordinary
     appeal preferred to this Court."

       16. In the case at hand, it is noticeable that the High Court   F
has compartmentalized the reasons ascribed by the learned
trial Judge and thereafter dislodged the same one by one. The
approach of the High Court in this regard cannot be flawed, but
a pregnant one, it is required to be examined whether the High
Court while dislodging the reasons and substituting the findings       G
has appositely reappreciated the oral and documentary
evidence brought on record to come to the conclusion that the
view taken by the learned trial Judge is neither a plausible nor
a reasonable one. The learned trial Judge, analyzing the
1a. r2011) a sec 65.                                                   H
    464     SUPREME COURT REPORTS                  [2013) 11 S.C.R.


A   evidence on record, had recorded a finding that neither the
    complainant nor his family members nor the members of the
    Harijan community had any right on the land inasmuch as the
    controversy in the civil suit was between Guru Ravidass Mandir
    Sabha and the accused persons. The trial court had observed
B   that no document was brought on record to show that
    possession of the disputed land was handed over to the
    complainant cir his family members in pursuance of the alleged
    resolution of the Gram Panchayat. The learned trial Judge had
    also observed that the plea of the accused persons that they
C   had settled there since the time of their predecessors-in~interest
    who had migrated from Pakistan was acceptable. Thus, the
    learned trial Judge returned a finding in favour of the accused
    persons. This finding, needless to say, has been arrived only
    to nullify the allegation of the prosecution that the accused
    persons forcibly put their combine harvester on the disputed
0
    land. The High Court, as is perceptible, has observed that there
    is a serious dispute with regard to possession. The High Court
    has failed to appreciate that on earlier occasion there was an
    order of injunction which was vacated and the suit stood
    dismissed. It may be noted that even if there was a serious
E   dispute relating to possession, the learned trial Judge on the
    analysis of the material on record had not accepted the
    prosecution version that the accused persons forcibly entered
    upon the land and installed the combine harvester. In fact, as
    the evidence would reveal, the combine harvester was installed
F   much prior to the date of occurrence. The view taken by the
    learned trial Judge in this regard for the aforesaid limited
    purpose is a plausible one. The said finding by itself is of no
    consequence but it has been recorded to support and sustain
    the finding that the accused-appellant and his relations did not
G   by force enter upon the disputed land and put the combine
    harvester. The learned trial Judge, on the aforesaid base, had
    held that there was no intention on the part of the accused
    persons and the High Court has opined that the question of
    motive or intention is inconsequential when there is direct
H   evidence on record. It is settled in law that when there is direct
      JOGINDER SINGH v. STATE OF HARYANA                       465
               [DIPAK MISRA, J.]
evidence, the proof of intention is not necessary. However, the        A
analysis of the learned trial Judge would go a long way to show
that he had meticulously scrutinized the evidence relating to
factum of possession to highlight that the accused persons had
no intention to forcibly enter upon the land and assert their right.
True it is, it has come on record that both the parties were           B
fighting over possession, the complainant and others, on the
ground that it was given to them by Guru Ravidass Mandir
Sabha to construct a temple thereon and the accused persons
were resisting the construction of temple. The said controversy
was the subject-matter of the civil lis. As is evincible from the      c
deposition of the witnesses that the combine harvester was
there on the disputed land and the accused persons had not
encroached upon the land to assert their possession. To that
extent the finding of the learned trial Judge cannot be found fault
with.                                                                  D
      17. At this juncture, we are obliged to state that though
there has been compartmentalization of the reasoning, basically
there are three aspects which require scrutiny. The learned trial
Judge had not accepted the credibility of the prosecution
witnesses about the involvement of the accused in firing as a          E
result of which the deceased and the injured persons sustained
injuries. For supporting the same he had given emphasis on
certain discrepancies, which the learned counsel for the State
would submit, are absolutely minor in nature. It is worthy to note
that the learned trial Judge had recorded the discrepancies and        F
referred to the ballistic report to support his conclusion that the
prosecution had not established the case and in all possibility
had tried to protect the real assailants. To test the justifiability
of the said finding and the ultimate conclusion it is necessary
to evaluate the evidence brought on record. PW-16, the                 G
investigating officer, had clearly deposed that he had seized
four empty cartridges - C-1 to C-4 from the spot where he
arrived in quite promptitude. On a perusal of the ballistic report,
it is manifest that ]they were not fired from the weapon, Ext.-
15, seized from the house of the accused-appellant. The                H
    466     SUPREME COURT REPORTS                 [2013] 11 S.C.R.


A   learned trial Judge had taken note of the fact that the pellets ·
    marks were there on the walls of the house of the appellant,
    which were visible from the photographs, Ext.-DA to DC. These
    aspects show that there were also other persons present at the
    spot who had come with arms. It is demonstrable from the
B   material brought on record that there were people from the
    Harijan community who had come to the disputed land and fired
    at the house of the accused persons. The said conclusion is
    buttressed from the fact that the empties found from the spot
    were not fired from the gun of the accused.
c       18. Quite apart from the above, cross-examination of the
  eye-witnesses it is also clear that the members of the Harijan
  community had licensed guns and they hearing the shout had
  gathered at the spot. The High Court while lancinating the
  finding of the learned trial Judge on this score has only given a
D cryptic opinion without any reason that it does not create a dent
  on the prosecution case. In our considered opinion, such
  unsettling of a reasonable finding in a cryptic manner is not
  acceptable. We are of the considered view that it creates a
  grave dent on the version advanced by the prosecution.
E
        19. Another aspect needs to be addressed. The learned
  trial Judge has disbelieved the version of the prosecution
  relating to firing by the appellant on deceased Kamla and other
  injured persons on two counts, namely, the range from which it
F was fired on deceased Kamla, and there is no material on
  record to connect the injuries with the seized fired arms. The
  High Court has overturned the distance part but has not really
  dwelled upon the other aspect. As far as the facet of the
  distance is concerned, the opinion of the High Court seems to
  be sound. But the fact remains that there is no material on
G record to connect that the gunshot injuries suffered by the
  deceased are due to the shots fired from the gun of the
  appellant. It is also discernible that though the pellets were
  recovered but the same have not been connected with the
  weapon. Thus, we find there is a material contradiction in the
H oral evidence adduced by the prosecution on one hand and the
      JOGINDER SINGH v. STATE OF HARYANA                        467
                [DIPAK MISRA, J.]
ballistic report on the other.                                          A
      20. In Brijpal Singh's case, the High Court had affirmed
the conviction of the appellant therein. It was the case of the
prosecution that A-1 at the exhortation of A-3 shot the deceased
from point plank range on the head of the deceased from a
mouser gun which shattered the right side of the head causing           B
death oil the spot. This Court, after examining the ballistic report,
opined that on a perusal of the said report it was clear that the
weapon alleged to have been used in causing the fatal injury
would not have been the mouser gun carried by A-1 because
the definite report of the ballistic expert that the discharged         C
empties of cartridge found near the dead body were not that
fired from the mouser gun. The Court also took note of the fact
that A-2 therein who had fired which missed him but got
embedded in the wall of the house, according to the ballistic
report the embedded cartridges could have been fired from the           D
mouser gun and not from a .12 bore gun which was used for
firing. This was treated as a serious contradiction between the
oral evidence and the ballistic report. Be it noted, a contention
was advanced by the learned co1;1nsel for the State that if the
oral evidence is found to be acceptable by the court any                E
contradiction to the ballistic reports, the acceptable oral
evidence should always be preferred. Dealing with the
contention the court agreed with the argument by stating that
normally, if the eye witness's evidence is acceptable, the
argument of the State would be accepted but as the factual              F
position revealed the witnesses were interested persons and
independent witnesses ha~ not been examined and further
there was inter se contradiction in the evidence of certain eye
witnesses. Eventually, the Court while acquitting the appellant
therein observed thus: -
                                                                        G
     "Then, we notice the prosecution has not bothered to clarify
     the report of the ballistic expert even though the same was
     contradictory to the oral evidence which creates a very
     serious doubt in our mind as to the presence of eye-
     witnesses at the place of incident. Keeping in mind the            H
    468       SUPREME COURT REPORTS                   (2013] 11 S.C.R.


A         partisan nature of eye-witnesses and contradictions in their
          evidence, we think this appellant is also entitled to benefit
          of doubt."
       21. In the instant case, the ballistic report, Ext. P.UU, though
  refers to the mutilated pellets stated to have been recovered
B from the body of the deceased Kamla and also the two different
  leads pellets from the body of Murti, but is not definite that .12
  bore DBBL gun, Ext. W/1, that was seized from the appellant.
  was used for firing such gunshots. This fact has been totally
  ignored by the High Court in an extremely cryptic manner.
c      22. At this juncture, we may note with profit another aspect
  that has been highlighted by the learned counsel for the
  respondent. The prosecution has not examined Chander,
  husband of the deceased, a relevant eye witness, Bala, Murti
  and Simla, three other injured witnesses. No explanation has
0 been given by the prosecution. Though there have been certain
  suggestions to PW-16 in the cross-examination, but his answer
  is evasive. It is well settled in law that non-examination of the
  material witness is not a mathematical formula for discarding
  the weight of the testimony'available on record howsoever
E natural, trustworthy and convincing it may be. The charge of
  withholding a material witness from the court levelled against
  the prosecution should be examined in the background of the
  facts and circumstances of each case so as to find whether the
  witnesses are available for being examined in the court and
F were yet withheld by the prosecution. (See: State of H.P. v. Gian
    /
  Chand19 )
        23. In this context, we may also note with profit a passage
    from Takhaji Hiraji v. Thakore Kubersing Chamansing20 : -
G         "19 ... It is true that if a material witness, who would unfold
          the genesis of the incident or an essential part of the
          prosecution case, not convincingly brought to fore

    10. c2001) s sec 11.
H 20. (2001) s sec 145.
      JOGINDER SINGH v. STATE OF HARYANA                         469
                [DIPAK MISRA, J.]
     otherwise, or where there is a gap of infirmity in the              A
     prosecution case which could have been supplied or made
     good by examining a witness who though available is not
     examined, the prosecution case can be termed as
     suffering from a deficiency and withholding of such a
     material witness would oblige the court to draw an adverse          B
     inference against the prosecution by holding that if the
     witness would have been examined it would not have
     supported the prosecution case. On the other hand if
     already overwhelming evidence is available and
     examination of other witnesses would only be a repetition           c
     or duplication of the evidence already adduced, non-
     examination of such other witnesses may not be material.
     In such a case the court ought to scrutinize the worth of the
     evidence adduced. The court of facts must ask itself -
     whether in the fads and circumstances of the case, it was           0
     necessary to examine such other witness, and if so,
     whether such witness was available to be examined and
     yet was being withheld from the court? If the answer be
     positive then only a question of drawing an adverse
     inference may arise. If the witnesses already examined are
     reliable and the testimony coming from their mouth is               E
     unimpeachable the court can safely act upon it,
     uninfluenced by the factum of non-examination of other
     witnesses."
    24. Recently in Manjit Singh and Anr. v. State of Punjab             F
and Anr., 21 this Court, after referring to earlier decisions, has
opined thus: -
     "... it is quite clear that it is not the number and quantity but
     the quality that is material. It is the duty of the Court to
     consider the trustworthiness of evidence on record which            G
     inspires confidence and the same has to be accepted and
     acted upon and in such a situation no adverse inference
     should be drawn from the fact of non-examination of other

21. JT 2013 (11) SCALE 394.                                              H
    470       SUPREME COURT REPORTS                  [2013] 11 S.C.R.


A         witnesses. That apart, it is also to be seen whether such
          non-examination of a witness would carry the matter further
          so as to affect the evidence of other witnesses and if the
          evidence of a witness is really not essential to the unfolding
          of the prosecution case, it cannot be considered a material
s         witness (see: State of UP. v. /ftikhar Khan and others2 2 )."
       25. In the case at hand, non-examination of the material
  witnesses is of significance. It is so because PW-11 is really.
  an interested witness though the High Court has not agreed with
  the same. It appears from the material brought on record that
C he had an axe to grind against the appellant. That apart,
  Chander, who was present from the beginning, would have
  been in a position to disclose more clearly about the genesis
  of the occurrence. He is the husband of the deceased and we
  find no reason why the prosecution had withheld the said
D witness. Similarly, the other three witnesses who are said to
  be injured witnesses when available should have come and
  deposed. Therefore, in the obtaining factual matrix that their
  non-examination gains significance.
        26. In this regard, another aspect requires to be taken note
E of. The case of the prosecution was that Mohinder Singh had
  snatched away the gun and fired at Mithan Singh and Simla.
  The learned trial Judge disbelieving the prosecution version had
  acquitted him. The High Court has given him benefit of doubt.
  We are of the considered opinion that regard being had to the
F totality of evidence, both oral and documentary, there was no
  reason not to extend the said benefit of doubt to the appellant.
  The High Court has fallen into error on that score.
       27. In view of the aforesaid analysis, the appeal is allowed,
  the judgment passed by the High Court is set aside and that
G of the learned trial Judge is restored. As the appellant is in
  custody, he be set at liberty forthwith unless his detention is
  required in connection with any other case.
    K.K.T.                                           Appeal allowed.
    22. (1973) 1 sec s12.