Holding

The Supreme Court held that the High Court acted perversely in relying on unreliable evidence, and therefore set aside the convictions and acquitted the appellants.

Summary

The appellants were convicted for the murder of Bali and for causing injuries to his wife, based on the testimony of several eye‑witnesses and medical reports. The trial court sentenced them to life imprisonment under IPC s.302 read with s.34 and six months under s.323/34; the High Court reduced the murder charge to culpable homicide not amounting to murder (s.304 Part II) and imposed five years rigorous imprisonment. The appellants challenged the convictions before the Supreme Court under Article 136, alleging that the lower courts ignored material infirmities, delayed registration and investigation, and relied on unreliable witness testimony. The Court examined the scope of its power to interfere with findings of fact and held that it may do so when the High Court acts perversely or improperly. It found the prosecution evidence unreliable, the investigation delayed, and the witnesses' credibility compromised, concluding that the convictions could not be sustained. Consequently, the Supreme Court set aside the convictions, acquitted the appellants, and discharged their bail bonds.

Issues considered

The scope of Supreme Court's power under Article 136 to interfere with factual findings of a High Court in a criminal appeal.
Whether the prosecution evidence satisfied the test of reliability and proved the appellants' participation in the murder under IPC s.302 read with s.34.
Whether procedural delays, change of place and time of occurrence, and alleged perjury by the investigating officer vitiated the prosecution case.

Legislation cited

Indian Penal Code, 1860s. 147, s. 149, s. 302, s. 304 Part II, s. 323, s. 34

Subjects

Article 136Special Leave Petitioncriminal appealmurderevidence reliabilityprocedural delayperverse judgmentacquittalIPC sections 302, 304, 323, 34, 149, 147scope of Supreme Court interference

Judgment

•

NAIN SINGH AND ANR.
A
v.
STATE OF UTIAR PRADESH

FEBRUARY 22, 1991

[S. RATNAVEL PANDIAN AND M. FATHIMA BEEVI, JJ.] B

Constitution of India,· 1950---Article 136--Special Leave Petition
-Criminal matters-Appeal arising from concurrent finding of fact-
Scope of interference.

On 23.12.1976 at about 1 p.m. when Bali (deceased) along with C
PWs 1 and 5 was in bis field, the four appellants each armed with a
Lathi, along with Braham Singh armed with a 'Ballam', came there. On
the exhortation of Chandroo, all other appellants and Braham Singh
attacked Bali with their respective weapons and caused injuries to him.
While PW-3 tried to save her husband, she too was injured. When
PW-1 along with PWs 3 and 4 rushed to the scene of occurrence, the D
assailants took to their heels. Injured Bali was removed to the hospital.
He succumbed to his injuries on the same day at about 7.45 p.m.

It seems that there was strained relationship between the appel-
lants and the deceased for a considerable length of time over grazing of
~ cattle, resulting in damage to the standing crops. On account of this, E
there was simmering feeling between the parties. Added to that, there
were certain criminal prosecutions between the parties, pending for
over a period of two years. ·
- The four appellants along with Braham Singh (since acquitted by
the Triai Court) took their trial. The Trial Court found the four appel- F
lants guilty of offences under section 302 read with section 34 and under
section 323 read with section 34 IPC and sentenced them to undergo
imprisonment for life and to six months' rigorous imprisonment respec-
tively. The 5th accused, Braham Singh, was acquitted.

On appeal, the High Court held that the prosecution had not G
made out a case punishable under section 302 read with section 34 IPC
but only under section 304, Part II, IPC read with section 34 IPC. The
High Court sentence each of them to undergo rigorous imprisonment
for a period of five years. The conviction of all the appellants under
section 323 read with 149 IPC was altered into one under section 323
read with 34 IPC and the sentence of six months' rigorous imprison- H
ment was retained.
685
686 SUPREME COURT REPORTS [1991] 1 S.C.R.

A Before this Court it was contended on behalf of the appellants that ~-
since both the courts below had overlooked the glaring inf"mnities and
ignored the material evidence supporting the defence theory as well as
the manifest errors appeaiing in the evidence, this Court would be
justified in interfering with the concurrent imdings of both the courts.
B According to the learned counsel, the prosecution had shifted the scene
of occurrence, changed the time of occurrence, unduly delayed the
registration of the case and put forth a false explanation for its tardiness
both in the matter of registration and investigation of the case. -~-

Allowing the appeals by setting aside the convictions and the sen-
tence imposed by the High Court, this Court,
c
HELD: (1) Under Article 136, Interference by the Supreme Court
....
will be called for even with the f"mdings of fact given by the High Court,
if the High Court bas acted perversely or otherwise improperly. [.690F]

The State of Madras v. A. Vaidyanatha Iyer, [1958] S.C.R. 580;
D Himachal Pradesh Administration v. Shri Om Prakash, [1972] l S.C.C.
249; Balak Ram v. State of U.P., [1975] 3 S.C.C. 219; Arunachalam v.
P.S.R. Sadhananthan, [1979] 3 S.C.R. 402; State of U.P. v. Hamit
Singh & Ors., [1990] 3 S.C.C. 55; State of U.P. v. Pheru Singh & Ors.,
[1989] Suppl. 1 S.C.C. 288, referred to.
E (2) The evidence adduced by the prosecution falls short or the test
of reliability and acceptability and as such it is highly unsafe to act upon

F
it. [697H]

(3) A thorough and scrupulous examination of the facts and the
circumstances of the case leads to an irresistible and inescapable conclu-
-
sion that the prosecution has miserably failed to establish the charges
levelled against these appellants by producing cogent, reliable and
trustworthy evidence. Both the Courts below instead of dealing with the
intrinsic merits of the evidence of the witnesses, have acted perversely
by summarily disposing of the case, pretermitting the manifest errors
and glaring inf'mnities appearing in the case. [698A-B]
G
CRIMINAL APPELLATE JURISDICTION: Criminal Appeals
Nos. 251 & 307of1990. ·x:
From the Judgment and Order dated 11.8.1989 of the Allahabad
High Court in Crl. A. No. 1239 of 1978.
H
NAIN SINGH v. STATE OF UITAR PRA;..ESH [PANDIAN, J.] 687

S.C. Maheshwari, Y.C. Maheshwari, Miss Sandhya Goswami A
and P .K. Chakraborty for the Appellants.

Prithvi Raj, Prashant Chaudhary and Dalveer Bhandari for the
Respondent.

The Judgment of the Court was delivered by B

S. RATNAVEL PANDIAN, J. The appellants in criminal appeal
No. 251 of 1990 were accused Nos. 3 and 4 before the trial court,
namely, the Vllth Additional Sessions Judge, Meerut, whereas the

- appellants in criminal appeal No. 307 of 1990 were accused Nos. 1 and
2 before the said court. These four appellants along with one Braham C
Singh (since acquitted) took their trial for offences under Sections 302
read with section 149 IPC and 323 read with section 149 IPC. Besides,
----y· J

these four appellants were also charged for offence under section 147
IPC whilst Braham Singh under section 148 IPC. The trial court, on
appreciation of the evidence adduced by the prosecution, found the
5th accused, Braham Singh, not guilty of any of the charges and acquit- D
ted him. However, these four appellants were found guilty of offences
under section 302 read with section 34 !PC and under section 323 read
with section 34 IPC and sentenced to uqdergo imprisonment for life
and to six months' rigorous imprisonment respectively. The High
Court on appeal preferred by all the appellants, for the reasons
mentioned in its judgment, held that the prosecution has not made out E

-
a case punishable under section 302 read with section 34 IPC but only
under section 304, Part II, IPC read with section 34 and consequently
set aside the conviction and the .sentence imposed for the offence
under section 302 read with section 34 IPC and instead convicted them
under section 304 Part II, read with section 34 IPC and sentenced each
of them to undergo rigorous imprisonment for a period of five years. F
The conviction of all the appellants under section 323 read with 149
IPC was altered into one under section 323 read with 34 IPC and the
sentence of six months' rigorous imprisonment was retained. The facts
of the case which have given rise to the present appeals as unfolded by
the evidence, can be briefly stated thus:
G
Appeilants in criminal appeal No. 307/90 are brothers. Similarly,
appellants in criminal appeal No. 251/90 and Braham Singh (who was
arrayed as accused No. 5 before the trial court) are also brothers
among themselves.

PWs 1 and 5 are the brother and wife respectively on one Bali H
688 SUPREME COURT REPORTS [1991] 1 S.C.R.

(the deceased herein). PW-1 and the deceased Bali had a common
A
'Chak'. The appellants belonged to a village named Kaulbhandora, -~'-
which is at a distance of about four furlongs from the Chak, situated
just adjacent to the road and 'Rajbaha'. The appellants used to take
the 'Rajbaha' Patri in auction for frazing their cattle. It seems that
there was strained relationship between the appellants and the
B deceased for a considerable length of time. According to the prosecu-
tion the cattle belonging to the appellants, when allowed to enter the
'Patri' (grazing field) used to stray into the field of Bali and cause
damage to the standing crops. Although Bali made a protest, it did not
yield any result. On account of this, there was simmering feeling bet-

c
ween the parties. Added to that, there were certain criminal prosecu-
tions between the parties, pending for over a period of two years.

On 23.12.1976 at about 1 p.m. when Bali along with PWs-1and5
was in his field, these appellants each armed with a Lathi along with y-
-
Braham Singh armed with a 'Ballam' came there. On the exhortation
of Chandroo, all other appellants and Braham Singh attacked Bali
D with their respective weapons and caused injuries to him. While PW-3
tried to save her husband, she too was injured. When PW-1 along with
PWs 3 and 4 rushed to the scene of occurrence, the assailants took to
their heels. Injured Bali was removed to the Hastinapur hospital for
treatment. PW-6, the medical officer attached to the said hospital
e'xamined Bali and found on his person as many as fifteen injuries of
E which injury No. 15 was a stab wound and most of the other injuries
were contusions. PW-6 prepared a medical report, Exhibit Ka-6 and
on the same day he examined PW-5 and found on her person 2 contu-
sions in respect of which he prepared the injury report (Ex. Ka-7).
However, Bali succumbed to his in juries on the same day at about 7.45
-
p.m. PW-1 lodged a written report (Ex. Ka-1) at about 8 p.m. before
F PW-2 a Head Constable attached to the Hastinapur Police Station.
PW-2 prepared Exhibit Ka-2 on the basis of Ex. Ka-1 and made G.O.
entry i.e. Ex. Ka-3. PW-9, the then sub-Inspector of Police attached to
the Police Station took up the investigation and examined PW-1 and
others. He held the inquest over the dead body of the deceased and
prepared Ex. Ka-11, PW-5 could not make any statement as she was
G unconscious. Then PW-9 inspected the spot and prepared a site plan
Ex. Ka-14 and seized certain material objects including a piece of
wood and blood stain earth.

PW-7, yet another Medical Officer, conducted the post mortem
examination on the dead body of the deceased Bali on 24.12.1976 and
H found a number of injuries, as noted in his post mortem report
NAIN SINGH v. STATE OF UTTAR PRADESH [PANDIAN, J.) 689

Ex. Ka-8. According to PW-7, the death was due to shock and
haemorrhage as a result of the injuries sustained by the deceased. A
PW-9, after completing the investigation, laid the chargesheet against
all the five accused. Though the appellants admitted the earlier crimi-
nal prosecutions between the parties, totally denied their complicity
with the offence of murder. Of the witnesses examined, PWs 4 and 5
corroborated the testimony of PW-1 but PW-3 was declared hostile as B
this witness mentioned only the name of the first appellant and denied
participation of rest of the appellants and Braham Singh and also the.
presence of the ocular witnesses except PW-5. The trial court, how-
ever, found accused Nos. 1to4 (all the appellants herein) alone guilty

- of the offence, convicted and sentenced them as aforementioned and
acquitted the 5th accused Braham Singh.

On appeal, the High Court accepted the testimony of PWs-1, 4
and 5 holding that they are giving a consistent version in regard to the
c

participation of the appellants in attacking the deceased and agreed
with the finding of the trial court that these appellants were responsi-
ble for inflicting the injuries on the deceased Bali and PW-5. But D
coming to the nature of the offence perpetrated on the deceased, the
High Court held the offence as one punishable under section 304 Part
II but not under section 302 IPC and consequently altered the convic-
tion and the sentence as indicated above while retaining the conviction
under section 323 against all the appellants for causing injuries to
PW-5. Hence, the present appeals are directed by the appellants who E
were accused Nos. 1to4 before the trial court.

- Mr. Maheshwari, Senior Counsel appearing on behalf of the
appellants in both the appeals, forcibly contended that since both the
courts below have overlooked the glaring infirmities and ignored the
material evidence supporting the defence theory as well as the F
manifest errors appearing in the evidence, this Court would be justified
in interfering with the concurrent findings of both the courts,
otherwise substantial injustice would be caused to the appellants.
According to the learned counsel, the prosecution has shifted the
scene of occurrence, changed the time of occurrence, unduly delayed
the registration of the case and put forth a false explanation for its G
tardiness both in the matter of registration and investigation of the
case; that PW-9; the investigating officer, has deliberately feigned
ignorance of the receipt of Ex. Kha-1 in order to shield his indolence
and failure in immediately and promptly taking up the investigation;
that PWS-1 and 4 in order to ventilate their grievance which they were
bearing against the appellant's party on account of the previous H
690 SUPREME COURT REPORTS [ 1991] 1 S.C.R

A animosity and simmering feelings that existed between them and to ·~·-
settle their personal scores; that the credibility of these two witnesses
is impaired and their testimony is successfully impeached. The learned
defence counsel further states that a thorough and strict scrutiny of the
evidence furnished by PWs-1, 3 and 4 shows that the entire prosecu-
tion story is concocted, fanciful and incredible and, as such, it deserves
B
to be rejected with scorn and that both the courts below have comp-
letely pretermitted all the pitfalls in the prosecution and have summa-
rily disposed of the case·without subjecting the evidence under the
usual test of scrutiny.

C
Before we analyse the above contentions with reference to the
evidence adduced by the prosecution and see whether the prosecution
case suffers from any illegality and the conclusion of the courts below
from perversity, we shall deal with the scope of interference of this
-
Court in an appeal arising from concurrent findings of fact. This Court
in The State of Madras v. A. Vaidyanatha Iyer, (1958] SCR 580 at 588
D while interpreting the scope of Article 136 of the Constitution has ruled
as follows:

"In Art. 136 the use of the words "Supreme Court may in
its direction grant special leave to appeal from any judg-
ment, decree, determination, sentence or order in any
cause or matter passed or made by any court or tribunal in
E
the territory of India" shows that in criminal matters no

-
distinction can be made as a matter of construction between
·a judgment of conviction or acquittal."

Having made the above rule, it has been said that the interfe-
rence by the Supreme Court will be called for even with the findings of
F
fact given by the High Court, if the High Court has acted perversely or
otherwise improperly. Jaganmohan Reddy, J. agreeing with the view
taken in Vaidyanatha lyer's case has observed in Himachal Pradesh
Administration v. Shri Om Prakash, [ 1972} 1 SCC 249 thus:

"In appeals against acquittal by special leave under Article .
G
136, this Court has undoubted power to interfere with the
findings of fact, no distinction being made between judg-
ments of acquittal and conviction, though in the case of
acquittals it will not ordinarily interfere with the apprecia-
tion of evidence or on findings of fact unless the High
Court "acts perversely or otherwise improperly".
H
NAIN SINGH v. STATE OF UTTAR PRADESH [PANDIAN, J.) 691

Again in Balak Ram v. State of U. P., ( [1975] 3 SCC 219 at page
A
227) this Court held as fol'l.ows:

"The powers of the Supreme Court under Article 136 are
wide but in criminal appeals this Court does not interfere
with the concurrent findings of fact save in exceptional
circumstances." B

In Arunachalam v. P.S.R. Sadananthan, [1979] 3 SCR482 at page
487 this Court while reinstating the principles laid down in Vaidyana-
tha Iyer & Om Prakash, cases, has stated thus:

... "The power is plenary in the sense that there are no words
in Article 136 itself qualifying that power. But the very c
nature of the power has led the Court to set limits to itself
within which to exercise such power. It is now the well
established practice of this Court to permit the invocation
of the power under Article 136 only in very exceptional
circumstances, as when a question of law of general public D
importance arises or a decision shocks the conscience of the
Court. But within the restrictions imposed by itself, this
Court has the undoubted power to interfere even with find-
ings of fact making no distinction between judgment of
acquittal and conviction, if the High Court, in arriving at
those findings, has acted "perversely or otherwise improperly". E
See also State of U.P. v. Hamik Singh & Ors., [1990] 3 SCC 55
and State of U.P. v. Pheru Singh & Ors., [1989] Supp. 1SCC288 to which
one of us (S. Ratnavel Pandian, J.) was a party.

Bearing the above proposition of law, we shall now examine the
F
evidence and see whether the concurrent findings of fact call for an
interference.

With regard to the place of occurrence, learned counsel drew our
attention to the first information report and to the evidence of the
witnesses including that of PW-9, and pointed out that the prosecution G
had changed the scene of occurrence. In the first information report
under column 'place of occurrence', it is mentioned as 'Jungle Yillage,
Ganeshpur'. PW-1 in his cross-examination has admitted that the
'Chak' in which the murder took place is situated in the jungle of
village Bhandora and not in the jungle of village Ganeshpur. A sugges·
tion, though denied, has also been made by the defence to PW-1 that H
I
692 SUPREME COURT REPORTS [1991] 1 S.C.R.

A they have changed the place of occurrence from Ganeshpur to
Bhandora. PW-2 who was then the Head Constable attached to
Hastinapur Police Station, states that on submission of Ex. Ka-1 by
PW-1 he prepared a chik report Ex. Ka-2 and that he mentioned the
place of occurrence as jungle of village Ganeshpur only on the basis of
B the written report.

It is the evidence. of PW-9 that he reached village Bhandora and
did the spot inspection thereby admitting that the place of occurrence
was village Bhandora and not Ganeshpur. A scrutiny of Ex. KA-1
shows that PW-1 did not give the specific place of occurrence in that
earliest document. It appears from the evidence of PWs 1 and 9 as well
c as the entry under column No.. 2 of the First Information Report that
the prosecution was probing in darkness even in respect of the place of
occurrence. Even in Ex. Ka-3 a memo prepared by PW-9 for seizure of
the blood-stained earth, the place of occurrence is not mentioned.
Hence, we hold that the submission made on behalf of the defence
D even at the threshold that the place of occurrence is changed or at any
rate not specifically fixed, cannot be said to be without force.

We shall then scrutinise the evidence with regard to the time of
occurrence. According to the prosecution, the.occurrence took place
at about 1.00 p.m. on 23.12.1976. Immediately, after the occurrence,
the injured Bali & PW-5 were brought to the hospital which is at a
distance of three miles from the scene of occurrence. Ex. Kha-1 was
prepared by the Medical Officer i.e. PW-6 on examing Bali. Ex. Ka-7
is a report prepared by medical officer PW-6 relating to the injuries
found on PW-5. This document Ex. Ka-7 reveals that PW-5 was
examined at about 3.30 p.m. Therefore, the injured Bali could have
F been examined by PW-6 earlier to 3.30 p.m. It may be mentioned here
what PW-1 has stated that they reached the hospital approx, between 2
and 3 p.m. The medical officer has opined that the injuries found on
the injured could have been caused within six hours. When a specific
question had been addressed ·to this medical officer (PW-6) as to
whether the injuries could have been caused at about 5/6 a.m. he
G would say: "It could have been caused at 8'0 clock". We are not
rejecting the case of the prosecution on this admission of the medical
officer stating that the probable time of the causation of the injuries
could be 8 a.m. But the question would be, even admitting that the
occurrence took place at about 1 p.m., whether the prosecution con-
vincingly and satisfactorily established the guilt of the appellants by
H leading cogent and reliable evidence.
NAIN SINGH v. STATE OF UTTAR PRADESH [PANDIAN, J.] 693

The next important point for determination is whether the case A
has been promptly registered and the investigation proceeded without
causing undue delay thereby giving no room enabling the prosecution
party to deliberately concoct a case against these four appellants. It
transpires from the evidence of PW-6 that he sent the information
under Ex. Kha-1 to the Police Station through his peon intimating the B
fact of Bali having been brought to the hospital with a number of
bleeding injuries in a very serious condition and also of PW-5 having
been admitted in the hospital for treatment of the injuries sustained by
her and the said document Ex. Kha-1 was sent by 4.30 p.m. on
23.12.1976 itself and the hospital's peon had brought the Receipt
evidencing the handing over of the intimation to the police. It is only
thereafter that PW-1 prepared Ex. Ka-1 and handed it over to PW-2 at C
about 8 p.m. on 23.12.1976. According to PW-2, after registration of
the case, a death memo was received at the Police Station at about 8.15
p. m. saying that Bali had expired in the hospital at about 7.40 p.m.

According to PW-1, the distance between the hospital and the D
police station is about 1 or 2 furlongs and that the police station is not
situated near the hospital. Nonetheless PW-1 would admit when con-
fronted further that the distance between the gates of the hosiptal and
the police station would be about 50 steps. Be that as it may, the fact
remains that both the hospital and the police station are situated
within a very short distance. Admittedly, neither PW-1 nor any of E.
PWs-3 and 4 went to the police station to inform about the occurrence
though they reached the hospital even by 2 p.m. The only explanation
given by PW-1 is that he was busy enquiring about the condition of his
brother. This explanation of PW-1 is totally unacceptable because
after both the injured persons, namely, Bali & PW-5 were brought to
the hospital they were examined only by the medical officer, PW-6. F
·+.---.. There was nothing preventing either PW-1 or any of the other witnes-
ses in going to the police station and informing the police, if really they
were eye witnesses to the occurrence and were in the hospital from 2
p.m. onwards, leaving apart PW-5 who was undergoing treatment in
the hospital. The delayed preparation of Ex. Ka-1 by PW-1 at the
hospital after seven hours of the occurrence and that too after the
death of his brother, leads to an indelible impression that PW-1 and
G
other interested persons who were enimically disposed towards the
appellants should have prepared Ex. Ka-1 after due deliberation and
consultation. The abortive explanation for not going to the police
station for six hours after reaching the hospital is unworthy of
credence.
694 SUPREME COURT REPORTS [1991] 1 S.C.R.

The next and even more important point for consideration is the
A
much delayed investigation. The conduct of PW-9 in not taking an
immediate action even after Ex. Kha-1 was handed over at the police
station by 4.30 p.m. or at any rate after receipt of Ka-1 and the death
intimation creates a suspicion in the veracity of the prosecution case.
Though PW-2 admits that he received the death intimation by about
B 8.15 p.m., PW-9, the investigating officer, has feigned total ignorance
about Ex. Kha-1 stating thus:

"Before this F.l.R. no intimation was received at the police
station about this occurrence that Bali was injured and
admitted in the hospital and his condition was critical. It is
wrong that any information was received at the Police
c Station before this F.l.R. which I am concealing. I do no~
know whether Ex. Kha-1 was received in the police station
or not. During the investigation Ex. Kha-1 never came to
my knowledge. This paper came to my knowledge during
the investigation and I made a copy of this in the case
·o Diary. I do not know whether this Letter was recorded in ·
the General Diary or not. No copy of G,D. is recorded in
my case diary in connection with Ex. Kha-1. No such note
is there in my case diary that I had seen any G.D. which is
related to Ex. Kha-1. I have not recorded any statement of
the H.M. relating to Ex. Kha-1."
E
We shall examine whether PW-9 took up the investigation at
least after registration of the case without causing further delay. PW-2
states that the investigating officer took up the investigation at about 8
p.m. on 23.12.1976 and went to the hospital and returned to the police
station only on the next day i.e. 24.12.1976 at 9.50 p.m. PW-9 has
F deposed that on 23.12.1976 at about 8 p.m., the report (Ex. Ka-1) was -~- ·
lodged in his presence by PW-1 and that he immediately took up the
investigation during the course of which he examined PW-1 and then
come to the hospital where he examined the medical officer Dr. B.D.
Goel (PW-6) and saw the dead body lying in the male ward. He con-
tinues to state that as PW-5 was in an unconscious condition, he could ,
G not examine her and as the light went off, he could not prepare even
the Panchnama. This piece of evidence of PW-9 that he took up the >( --'-
investigation even at 8 p.m. is not only contradicted but also falsified
by the testimony of PW-1 according to whom after lodging the report ~
he immediately came back to the hospital and remained then~ ~ill next
morning and that the Sub-Inspector (PW-9) came to the hospital for
H the first time in the morning of 24.12.1976 and only thereafter he was
NAIN SINGH v. STATE OF UTTAR PRADESH [PANDIAN. J.] 695

·'> ~ - examined. PW-4 also states that the investigating officer came to the
A
hospital only in the next morning. PW-6, the medical officer, does not
speak of the Sub-Inspector having came to the hospital on the night of
occurrence and has stated that he did not remember of the Sub-
Inspector or any constable reaching the hospital after receipt of the
death intimation or any one examining him on that date. The said
pieces of evidence, namely, the total unawareness of PW-9 about the B
..1...... existence of Ex. Kha-1 as well as the entry in the general diary made
thereon and the diametrically contradictory evidence of PW-9 on the
one hand and that of PWs-1, 4 and 6 on the other, cleady indicate that
either PW-9 did not have any knowledge about the incident till the
,,,_ next morning or even if he had such knowledge, he deliberately
- delayed the investigation; and his present version is nothing but a
deliberate perjury and as such his evidence has to be thrown over- c
board as unworthy of credence.
---r·· In the cross-examination, it is admitted by PW-9 that he did not
write the names of the appellants/accused in the Panchnama and that
he did not try to know the kinds of weapons that had been used by the D
assailants. On the basis of this admission a suggestion had been
addressed to him that the FIR relating to this incident, was prepared
and lodged only after preparation of the Panchnama thereby indicat-
ing that the FIR was anti-dated.

We shall now scan the evidence of PWs-1, 3 and 4 and examine E
whether their evidence could be accepted and acted upon. Admittedly,

- there was deep rooted animosity between the prosecution party and
the appellants over a period of some years and they-have developed
bad blood. It is the evidence of PW-1 that there were a number of
criminal cases against deceased Bali along with one Birbal Kishore and
Omi who were persons of notorious character in that village. Besides, F I
there were some more cases and counter cases between the parties. A
suggestion has been addressed to PW-1 that his brother Bali was hav-
ing close connection with one Ramanand who was a known decoit
belonging to their village but PW-1 has denied the relationship of Bali
with Ramanand. PW-4 admits that there was a dispute between Bali
and the appellants in which Bali had beaten them and in that case he G
was a co-accused along with PW-1 and deceased Bali. PW-3 who has
been treated as a hostile witness since he did not implicate all the
appellants by their names except Chandroo has admitted that there
was a case against Bali and Birbal Kishore in which he was a witness on
the side of Bali and that there was a double murder case in which he
(PW-3) was an accused and convicted. In that murder case one Roop H
696 SUPREME COURT REPORTS [ 1991] 1 S.C.R.

Ram, cousin of appellant Chandroo was a witness on the prosecution
A side. Thus it comes out of the evidence of these witnesses that all was
not well between the parties and each one was having grudge against
the other.

As pointed out by Mr. Maheshwari, learned counsel appearing
B for the appellants, the conduct of PW-1 belies his presence at the scene
of occurrence as he did not intervene when his brother (deceased) and
sister-in-law (PW-5) were attacked by the appellants and another and
if PW-1 had really been at the scene, he having been a co-accused
along with his brother in previous cases, would not have been standing
as a mute spectator without taking any part in the occurrence in which
case he would also have received injuries. In Ex. Ka-1 he has
c mentioned PWs-3 and 4 as eye witnesses who were enemically dis-
...
posed of towards the appellants and who were interested in the prosecu·
tion. As seen from the evidence of these three witnesses, they all
belong to one group either having been co-accused in one case or other
along with Bali or taking up the cause of Bali when the latter was
D involved in other criminal cases. In fact, one sentence in Ex. Ka-1
would indicate that PWs-1, 3 and 4 were not at the scene at the time of
occurrence but came to the spot later on. The relevant version in Ex.
Ka-1 reads: "On alarm, I and my uncle Chotte Lal and Shiv Charan of
the village reached the spot and saved them" Of course, he at the next
breath would claim to have witnessed the occurrence. We have also
E noted that the place of occurrence is not satisfactory fixed; and that the
evidence of PW-1 giving the reasons for the presence of his deceased
brother with PW-5 in the field, is also falsified by the evidence of
PW-9. According to PW-1, his deceased brother and PW-5 were
harvesting sugarcane ih the field at the time of occurrence. But PW-9
-
has deposed that at the time of spot inspection he did not find any
F Bugi, Dokra, Phawra, Dranti or harvested sugarcane . .This contradic-
tory evid.ence when taken along with our finding with regard to the
fixation of the scene of occurrence goes fo show that PW-1 could not
have been present at the scene of occurrence and only after a delibera~
tion he has posed himself as one of the eye-witnesses and projected
PWs 3 and 4 as other eye witnesses along with him. PW-4 during the
G course of cross-examination has admitted that except himself, PWs 1 &
5, none reached the scene and people came to the scene of occurrence
later on-. After reaching the hospital along with injured, PW 4 states
that all of them remained in the hospital near the dead body and that he
went to the police station in the morning of the next day at about 7 .00
a.m. As we have pointed out earlier, PW 3 has not implicated all the
H appellants except Chandroo by name and as such, he has been treated
NAIN SINGH v. STATE OF UTTAR PRADESH [PANDIAN, J.) 697

as a hostile witness. PW 3 is none other than the uncle of PW 1 and the A
deceased, therefore, in view of the inherent infirmities adversely
affecting the testimony of these eye witnesses, it would not be safe to
convict the appellants on the scanty evidence. The author of the
earliest document Ex. Ka-1, namely, PW-1 seems to be a man of
dubious character and his evidence is completely tarnished. A B
thorough scrutiny of the evidence shows that the testimony of the eye
witness is ambulatory and vacillating and compels this Court not to
place any safe reliance.

Lastly, we are left with the evidence of PW-2 who is an injured
witness. The presence of PW-2 at the scene is fortified by the injuries
found on her person. After scanning her evidence very carefully, we c
are unable to safely accept her evidence since it is not only tainted with
highly interestedness but also a coloured version, falling in line with
that of PW 1. She states that she was unconscious for 2 days and that it
was she who told PWs 1 and 4 as to who were the assailants.
Immediately in the next breath, PW 5 comes forward to say that on the
D
next day she told all the facts to the investigating officer and again
became unconscious after coming to know the death of her husband.
To a Court question, she gives a prevaricating answer that she was
conscious for some time and then became unconscious. Though at one
time, she testifies that she was beaten with sticks, she suddenly
changes her evidence giving a contradictory version that she did not
E
know whether she was beaten or not. Though all the witnesses in a
parroHike manner deposed that these 4 appellants along with Braham
Singh. armed with ballam attacked the deceased, their evidence when
subjected to strict examination becomes unworthy of credence. The
Trial Court on entertaining a grave doubt about the participation of
Braham Singh with a ballam, acquitted him despite the fact that PW 6
F
has noted a stab wound on the inner side of left thigh measuring 2 x 1
x 1.5 ems which injury in the opinion of the medical officer could have
been caused by a sharp edged weapon like 'ball am!. The acquittal of
Braham Singh was not challenged by the prosecution before the High
Court, and therefore, we are not called upon to discuss on this aspect
of the case. However, it is clear that the trial Court was not inclined to
G
accept a part of the evidence of these 3 witnesses i.e. PWs l, 4 & 5
relating to the participation of Braham Singh.

In our considered opinion, the evidence" adduced by the pro-
secution, falls short of the test of reliability and acceptability and as
such it is highly unsafe to act upon it. H
698 SUPREME COURT REPORTS. [1991] 1 S.C.R.

A A thorough and scrupulous examination of the facts and the
circumstances of the case leads to an irresistible and inescapable con-
clusion that the prosecution has miserably failed to establish the
charges levelled against these appellants by producing cogent, reliable
and trustworthy evidence. Both the Courts below instead of dealing
with the intrinsic merits of the evidence of the witnesses, have acted
B
perversely by summarily disposing of the case, pretermitting the
manifest errors and glaring infirmities appearing in the case.

For all the aforementioned reasons, we allow the appeals by
setting aside the convictions ~nd the sentence, imposed by the High
Court and acquit the appellants. The bail bonds, executed by the
c appellants, are discharged.

R.S.S. Appeals allowed_.

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