Holding

The High Court erred in interfering with the trial court’s acquittal; the prosecution failed to prove the charge beyond reasonable doubt.

Summary

The deceased Ram Pratap Singh was shot at an Octroi toll barrier; the State charged Awadhesh and Brajendra under IPC 302 read with 34 (and 307) based largely on the testimony of two eye‑witnesses, Rajendra Singh and Chhotey Bhaiya. The trial court found the eye‑witness accounts unreliable, noted contradictions in their statements, the delayed filing of the FIR, the lack of ballistic linkage of recovered cartridges, and medical evidence that conflicted with the prosecution’s version, and therefore acquitted the appellants. The Madhya Pradesh High Court overturned the acquittal, held the prosecution had proved its case beyond reasonable doubt, and sentenced both appellants to life imprisonment. On appeal, the Supreme Court held that the High Court erred in disturbing the trial court’s acquittal because the trial court’s view was reasonable and plausible and the prosecution had not discharged the burden of proof. Consequently, the Supreme Court set aside the convictions, restored the trial court’s order of acquittal and ordered the release of the appellants.

Issues considered

The prosecution proved the case beyond reasonable doubt under IPC 302 read with 34.
Whether the High Court was justified in overturning a trial court’s acquittal on the basis of its own assessment of evidence.
Whether the contradictions in eye‑witness testimony, delay in filing the FIR, and lack of forensic linkage of cartridges defeat the prosecution’s case.

Legislation cited

Indian Penal Code, 1860s. 302, s. 307, s. 34

Subjects

IPC 302Section 34acquittalappeal against acquittalreasonable doubtevidentiary assessmentjudicial prudenceforensic evidenceFIR delay

Judgment

AWADHESH & ANR.
A
V.
STATE OF MADHYA PRADESH

APRIL !2, 1988

!KN. SINGH AND M.H. KANIA, JJ.J B

Indian Penal Code-Challenging conviction by the High Court
under section 302 read with section 34, Indian Penal Code, after acquit-
tal by trial court.

This appeal was directed against the judgment of the Madhya
Pradesh High Court, setting aside the order of the trial court acquitting c
the appellants, and convicting them under section 301 read with section
34 of the Indian Penal Code and sentencing each of them to undergo
imprisonment for life.

The prosecution case was that on 4. t .198,:Z Ram Pratap Singh D
deceased had gone to Collectorate, Panna where he noticed that Om
Prakash and Raghvendra, who were inimical to him, were shadowing
him in the Collectorate. He requested Rajendra Singh PW 14, Chhotey
Bhaiya. PW S, and Mohd. Tohid, PW 16, to accompany him on his
return journey as he sensed danger to.his life, and sent Tohid to purch-
ase bus tickets with a direction that he should meet him at the Octroi E
toll barrier _on the Ajaigarh Road from where he proposed to take the

- bus. Thereafter, he alongwith Rajendra Singh; PW J4 and ChhoteJ
Bhaiya, PW JS, proceeded to Chungi Chowki (Octroi Post) on the

--.._tAjaigarh Road. While they were waiting for Tohid, Ram Pratap Singh
went for drinking water from a well nearby. When he was just in the
process of drinking water, gun shots were fired towards him, causing F
. injuries to him. Upon this, he ran towards his associates and fell down
near Rajendra Singh and Chhotey Bhaiya .. The prosecution further
alleged that on hearing the gun shots, Rajendra Singh and Chhotey
Bhaiya saw the appellant Brajendra armed with a.315 rifle and
Awadesh armed with a i2 bore gun running away, Rajendra Singh and
Chhotey Bhaiya, armed with a rifle and a gun respectively, fired shots G
towards the assailants and the assailants also fired towards them.

On hearing gun fire, V.P. Pathak, Sub-Inspector of Police, PW
20, rushed to the spot with Constable Lakhan Singh, PW 12. Rajendra
Singh, PW 14 gave him information about the incident, which was
recorded by him (Dehati Nalishi Ex. P. 12 at 3.JO P.M.) V.P. Pathak, H
513
514 SUPREME COURT REPORTS I 1988] 3 S.C.R.

sent the Dehati Nalishi to Kotwali Panna through Lakhan Singh, Const-
A
able, for recording the first information report. Pathak, sub-inspector
then prepared the panchnama and spot map Ex P. 17 on the same day.

A cha"rge-sheet was submitted against five accused persons,
including the two appellants Brajendra and Awadesh for trial for off-
B ences under section 302 read with section 34 and section 307 read with
section 34 of the Indian Penal Code. The Trial Court disbelieved the
testimony of the two eye-witnesses, Rajendra Singh, PW 14 and
Chhotey Bhaiya, PW 15, and referring to a number of circumstances
which made the prosecution story doubtful, acquitted the accused. On
appeal by the State Government, the High Court disagreed with the
-
reasons recorded by the Trial Court, and placing reliance on the
c testimony of the eye-witnesses, i.e., Rajendra Singh and Chhotey
Bhaiya, allowed the State appeal, set aside the acquittal of the appel-
lants and convicted them under section 302 read with section 34 of the
Indian Penal Code and awarded a sentence of life imprisonment to each
of them. The appellants appealed to this Court against the decisian of
D the High Court.

Allowing the appeal, the Court,

HELD: The High Court on an appraisal of the evidence came to
the conclusion that the prosecution had proved its case beyond all ,il
E reasonable doubt. It referred to a number of decisions of this Court in
considering the scope ofits jurisdiction in interfering with an order of
acquittal passed by the trial court, but while applying the principles, it
Failed to appreciate that the view taken by the trial court was reasonable

F
and plausible. While considering an appeal against acquittal, the High
Court must, in appreciating the evidence, keep in mind that if on
appraisal of evidence and considering relevant attending circumstances
+· _,J

it is found that two views are possible, one held hy the trial court for
acquitting the accused, and the other, for convicting the accused, in
such a situation, the rule of prudence should guide the High Court not
to disturb the order of acquittal made by the trial court. Unless the
conclusions of the trial court drawn on the evidence on record are found
G to be unreasonable, perverse of unsustainable, the High Court should
not interfere with the order of acquittal. The High Court in this case
made an attempt to explain away the infirmities in the testimony of the
eye-witnesses in setting aside the order of acquittal. The High Court
disregarded the rule of judicial prudence in converting the order of
acquittal to conviction, and committed error in interfering with the
H order of acquittal. [519G-H; 520A-B]
AWADHESH v, STATE OF M.P. 515

The first information report, Ex. P. 12, showed that the occurr-
A
ence took place at 14. IS hours whiie the report was lodged at 15.10
hours. The evidence on record and the attending circumstances indi-
cated that the first information report was not lodged at IS. IO hours;
instead it was lodged at about 17.00 hours. The testimony of Rajendra
Singh, PW 14, regarding the lodging of the first information report was
contradictory. The statement of V.P. Pathak, PW 20, the investigating B
officer, clearly indicated that the first information report was written
after 17.00 hours and it was not recorded at the time it purported to
have been lodged. There were material contradictions in the testimony
of Rajendra Singh PW 14 and the investigating officer. Since the Sub-
Inspector, the District Magistrate and the Superintendent of Police had

--t- reached the place of occurrence within a few minutes of the incident,
the delay in lodging the first information report was highly suspicious. c
Why this delay when all officers and the eye-witnesses were present at
the spot, and the police station was at a distance of two furlongs? The
obvious reason appeared to be that the names of the assailants were not
known, as most likely, the eye-witnesses .had not seen the assailants and
they were not present at the scene of the occurrence. In all likelihood, D
they arrived at the scene after the incident, and since the names of the
assailants were not known, the F .I.R. was lodged with delay after delib-
eration. This view finds support from the testimony ofTohid PW 16 and
·other circumstances. There were ·material contradictions in the state~
ments of the three witnes.'ieS Rajendra Singh PW 14, Chhotey Bhaiya, PW
JS and Tohid, PW 16, and in view of the same and,· further in view of E
the discrepancy regarding the delay in the lodging of the first informa-
tion report, it was apparent that till the first. information report was
lodged, nobody knew who the assailants were and that . was why
Rajendra Singh could not disclose the names of the assailants to Tohid
on his arrival at the scene of occurrence after he had been sent to bring
the bus tickets. [5208; S21A-C, E; 5228; S23A] F

. The prosecution relied upon the recovery of the two empty
cartridges to connect the appellants with the commission of the crime.
The recovery of these empty cartridges was not made ori 4.1.1982;
instead, these cartridges were recovered on S. I.82, although the spot
map of the scene of occurrence was prepared on 4. I.82 itself. It was G
interesting to note that the spot where these cartridges were recovered
,_,-4. was shown in the spot' map prepared on 4.1.82 although the recovery
\
was made on 5. L82. The witnesses in whose presence the recovery of
the cartridges was made had not supported the prosecution. Moreover,
it was the admitted case of the prosecution that there was an exchange
of fire from both sides--by the assailants and by Rajendra Singh and H

(
516 SUPREME COURT REPORTS [19881 3 S.C.R.
A
Chhotey Bhaiya- but no other cartridges were recovered by the Investigat-
ing Officer. The investigating officer did not take into possession the
"·
licensed rifle and gun of Raghavendra Singh and Awadesh, nor was any
effort made to secure the evidence of the ballistic expert to prove that
the empty cartridges had been fired from the respective weapons. These
B circumstances indicated that the empty cartridges were not recovered;
instead, the investigating officer had planted those cartridges to sup-
port the prosecution case. [523B-EI ~

On the evidence on record, it was apparent that the Chungi
Chowki (Octroi toll barrier) was manned by the employees of the Mun-
icipal Board, who were present at the spot, and in addition to them,
c there was Home Guard Office adjacent to the toll barrier and there
were residential houses near the barrier and the place of occurrence
was a busy public place. It came into evidence that large number of
·-+-
i

persons had gathered at the scene of occurrence, but no employee of the
toll barrier or Home Guard Office or local resident came forward to
D support the prosecution case. The District Magistrate, the Super-
intendent of Police and other officers had also reached the spot within
minutes of the incident, but none of them entered the witness box to
support the prosecution case. The prosecution produced Udai Singh
PW 17 and Kali Charan PW 19, who were residents of Uttar Pradesh
and close relatives of the deceased. Their presence at the scene of
E occurrence as highly doubtful and their testimony was not free from ,t.
doubt as they were highly interested persons. The trial court rightly
discarded their testimony as their statements had been recorded by the
police after two months of the occurrence, without there being an expla-
nation for the delay. [523F-H; 524A-BI

F The injuries mentioned in the testimony of Dr. Jain who had
carried out the post mortem examination of the dead body of Ram

G
Pratap Singh, could not be caused in the manner and from the place
where the assailants were alleged to be present at the time of firing, and
the same were inconsistent with the testimony of the eye-witnesses and
the site plan. The trial court had discussed this question at length and
the Court agreed with the findings of the trial Court. In the opinion of
the doctor, the person who caused injuries to the deceased was at a
'
higher level than the deceased; this was wholly inconsistent with the
testimony of the eye-witnesses. Though medical expert's opinion is not ~
always fmal and binding, in this case, it corroborated the other circumst-
ances which indicated that the eye-witnesses had not seen the actual
H occurrence. [524B; 525E-HI

-~A·
\
AWADHESH v. STATE OF M.P. [SINGH, J.] 517

The prosecution had failed to prove its case beyond all reasonable
A
doubt and the High Court committed error in interfering with the trial
court's order of acquittal. Order of the High Court and the appellant's
conviction were set aside and order of the t.'ial court was restored and
the appellants were acquitted. [526A-B]

G.B. Patel & Anr. v. State of Maharashtra, [1979] 2 SCR 94 and B
Sheo Swarup v. King-Emperor, A.I.R. 1934 PC 227. i

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 537 of 1986. I

From the Judgment and Order dated 3.9.1986 of the Madhya
Pradesh High Court in Criminal Appeal No. 936 of 1983. '
c
RajinderSingh, Ranjit Kumar, N. Jain, and Wasim A'. Qadri for
the Appellants.

Uma Datta and T.C. Sharma for the Respondents. D

The Judgment of the Comt was delivered by

SINGH, J. This appeal is directed against the judgil]ent of the
Madhya Pradesh High Court dated 3. 9.1986 setting asicte the trial
court's order acquitting the appellants herein and convieting them for E
offence under Section 302 read with Section 34 of the·.lndian Panel
Code and sentencing each of them to undergo imprisonmentlfor Hfe.

The prosecution case in brief is that on 4.1.198~ Rim Pratap
. '
Singh deceased resident of village Kharoni P.S. Ajaigarh, District
Panna had gone to Collectorate Panna to file reply to a show-cause F
notice issued to him for the cancellation of his gun licence. While he
was at the Collectorate he noticed Om Prakash and Raghvendra who
were inimical to him, were shadowing him in the Collectorate. He
requested Rajendra Singh PW 14, Chatley Bhaiya PW 15, and Mohd.
Tohid PW 16 to accompany him on his return journey as he sensed
danger to his life. Ram Pratap Singh the deceased sent Tohid to purch- G
ase tickets for Bus with a direction that he should meet him at the
Octroi Toll barrier on.the Ajaigarh Road from where he proposed to
take the Bus, thereafter the deceased along with Rajendra Singh, PW
J4, and Chhotey Bhaiya PW 15 proceeded on foot to Chungi Chowki, \,,,
(Octroi Post) situate at about two furlongs away from the Collectorate
on the Ajaigarh Road. While the deceased, Rajendra Singh and H
I
518 SUPREME COURT REPORTS [1988] 3 S.C.R. ·-(

Chhotey Bhaiya were waiting for Tohid near the Octroi Post one bus
A
arrived, but the deceased told Rajendra Singh and Chhotey Bhaiya not
to travel by that bus as he had apprehension that Raghvendra and his
associates may be inside the bus. While they were waiting for Tohid,
the deceased went for drinking water from a well which was near the..
road at the Octroi Post. After drawing the water from the well while'
B the deceased was in the process of drinking water at that preci~e )._
moment gun shots were fired towards him from the Northern side from
the Bari boundary, causing injuries to him in his chest and hand. On
receipt of in juries the deceased ran towards his associates and fell on a·
takhat near Rajendra Singh and Chhotey Bhaiya. The prosecution
further alleged that Rajendra Singh and Chhotey Bhaiya on hearing
c the gun shot saw the appellant Brajendra armed with a. 315 rifle and
Awadhesh armed with a 12 bore gun running away along with an other
·t-··.
person named Kailash who was also armed with a gun. Rajendra Singh
PW 14 who was armed with a. 275 rifle and Chhotey Bhaiya was armed
with a 12 bore gun fired shots towards the assailants. The assailants
also fired towards them, but they escaped. On hearing the gun shot
D fire V.P. Pathak, Sub-Inspector of Police PW 20accompanied by Con-
stable Lakhan Singh PW 12 rushed to the spot. Rajendra Singh PW 14
gave him information about the incident which was recorded by
Pathak, (Dehati Nalishi Ex. P. 12 at 3.10 p.m.). V.P. Pathak, the
Sub-Inspector sent the Dehati Nalishi to Kotwali Panna through .Ji
Lakhan Singh, Constable, for recording the first information report.
E After holding inquest, Pathak, the Sub-Inspector prepared Pan-
chnama and sent requisition for post-mortem examination of the dead
body and he also prepared the spot map Ex. P. 17 on the same day.
After completion of investigation a charge sheet was submitted against
-
five accused persons including the two ·appellants Brajendra and
I
~

Awadhesh for trial for offences under Section 302 read with Section 34
F IPC and under Section 307 read with Section 34 of the Indian Panel '1-
Code. Kailash one of the accused was shown absconding. Before the
trial court Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 sup-
ported the prosecution case as eye-witnesses, they claimed to have
witnessed the assault, they further claimed that they had recognised
the accused persons. The learned Sessions Judge disbelieved the
G testimony of these two eye-witnesses, he referred to a number of
circumstances which made the prosecution story doubtful, therefore, ~.
he acquitted the accused. On appeal by the State Government the High ;
Court disagreed with the reasons recorded by the trial court and plac·
ing reliance on the testimony of the eye-witnesses, i.e., Rajendra
Singh and Chhotey Bhaiya, it allowed the State's appeal and set aside
H the acquittal of the appellants and convicted them under Section 302

\
AWADHESH v. STATE OF M.P. [SINGH, J.[ 519

read with Sedion 34 of the Indian Penal Code and awarded sentence
of imprisonment for life to each of them. A

The trial court held that the prosecution had failed to prove its
case beyond all reasonable doubt and no reliance could be placed on
· the testimony of the Rejendra Singh PW 14 and Chhotey Bhaiya PW
.1 15. The trial court referred to a number of circumstances creating B
doubt on the credibility of the prosecution story but the High Court
differed from those findings and on appraisal of evidence it came to
the conclusion that the prosecution had proved its case beyond all
reasonable doubt. The High Court referred to a number of decisions of
this court in considering the scope of its jurisdiction in interfering with
an order of acquittal passed by the trial court but while applying the
principles it failed to appreciate that the view taken by the trial court c
was reasonable and plausible. Even the High Court has not held that
the view taken by the trial court was not a possible view. The High
Court reappraised the evidence and took a different view and it
explained the infirmities of the prosecution pointed out by the Sessions
Judge. In G. B. Patel & Anr. v. State of Maharashtra, [1979] 2 SCR 94 D
this Court quoted with approval the principles laid down by Privy
Council in Sheo Swarup v. King Emperor, AIR 1934. PC 227 wherein it
was held that although the power of the High Court to reassess the
evidence and reach its own conclusion, are as extensive as in an appeal
against the order of conviction, yet, as a rule of prudence, the High
Court should always give proper weight and consideration to matters E
e.g. (i) the views of the trial judge as to the credibility of the witnesses;
- (ii) the presumption of innocence in favour of the accused, a presump-
tion certainly not weakened by the fact that he has been acquitted at
the trial; (iii) the right of the accused to the benefit of any doubt, and
(iv) the slowness of an appellate court in disturbing a finding of fact
arrived at by a Judge who had the advantage of seeing the witnesses. F
Sark aria, J. speaking for the court observed "where two reasonable
conclusions can be drawn on the evidence on record, the High Court
should, as a matter of judicial caution, refrain from interfering with
the order of acquittal recorded by the.court below. In other words, if
the main grounds on which the court below based its order acquitting
the accused, are reasonable and plausible, and cannot be entirely and G
effectively dislodged or demolished, the High Court should not disturb
the acquittal." While considering an appeal against acquittal the High
Court must keep in mind these principles in appreciating the evidence
of witnesses. If on appraisal of the evidence and on considering relev-
ant attending circumstances it is found that two views are possible, one
as held by the trial court for acquitting the accused, and the other for H
520 SUPREME COURT REPORTS [1988] 3 S.C.R. --'.

A convicting the accused in such a situation the rule of prudence should
guide the High Court not to disturb the order of acquittal made by the
trial court. Unless the conclusions of the trial court drawn on the
evidence on record are found to be unreasonable, perverse or unsus-
tainable, the High Court should not interfere with the order of acquit-
tal. The High Court has in the instant case made an attempt to explain
B away the infirmities in the testimony of eye-witnesses in setting aside )._
the order of acquittal. The High Court has in our opinion disregarded
the rule of judicial prudence in converting the order of acquittal to
conviction.

The trial court held that the cumulative effect of the following
C circumstances made the prosecution case doubtful, these are; (i) first
information report was not recorded or lodged at the time it purports
·i. ~

to have been lodged, (ii) Rajendra Singh PW 14 and Chhotey Bhaiya
PW 15, the two eye-witnesses did not give the names of assailants to
Tohid, (iii) recovery of two cartridges on 5th Jan.uary. 1982 one day
after the occurrence, (iv) nature and position of injuries on the body of
D the deceased were not consistent with the testimony of eye-witnesses
having regard to the local site (v) empty cartridges of .315 rifle which
were alleged to have been fired by Brijcsh ;md 12 bore cartridge was
alleged to have been fired by Awadhc~h accused causing in juries to the
deceased, but the same were not sent to ballistic expert for his opinion Ji.
nor he was examined to support the prosecution case, (vi) unnatural
E and inconsistent testimony of eye-witnesses Rajendra Singh PW 14
and Chhotey Bhaiya PW 15, (vii) a large number of persons were
available at the scene of occurrence at the Octroi Toll barrier but no -
independent witness, either employee of the Toll barrier or of Home
Guard or any other person was examined to support the prosecution.
The High Court made an attempt to explain the circumstances in hold-
F ing that some times the memory of the witnesses fail and a broad view
of the evidence given by the eye-witnesses clearly indicated that the
prosecution had proved its case. We 'have been taken through the
entire evidence and we have also closely and carefully considered the
judgment of the trial court and the High Court. We are of opinion that
the High Court committed error in interfering with the order of
G acquittal.

The first information report Ex. P. 12 shows that the occurrence
took place on 14.15 hours while the report was lodged at 15.10 hours
•
that is to say within 55 minutes of the occurrence. The evidence on
record and the attending circumstances indicate that the first informa-
H tion report was not lodged.at 15. JO hours instead it was lodged at about
AWADHESH v. STATE OF M.P. [SINGH, J.] 521

17.00 hours. Rajendra Singh, PW 14 stated before the trial court that A
from the place of occurrence he had accompanied the police to Panna
Kotwali where he lodged the report and signed the Ex. P. 12. In
cross-examination he stated that he had gone to the Kotwali for lodg-
ing report in a police van. He further stated that the report had been
written by the Police clerk on his dictation, and that the police arrived
at the scene of occurrence after an hour of his lodging the first infor- B
mation report. At an earlier stage he had stated that the police had
arrived at the place of occurrence at about 3.30 p.m. and thereafter he
- had accompanied the police to Kotwali for lodging the report. His
testimony regarding lodging of the first information report is con-
tradictory. V .P. Pathak, PW 20 Sub-Inspectorof police, the investigat-
ing officer, stated that it was wrong to say that the first information
c
report Ex. P. 12 was made by Rajendra Singh at Kotwali. According to
him he was on duty at Collectorate and there he got the news at about
2.30 or 3.00 p.m. that gun shots were fired at Toll barrier on the
Ajaigarh Road, he reached there with few minutes along with Lakhan
Singh, Constable. On reaching the spot he wrote Marg intimation
drew up panchnama of the dead body and sent the dead body for D
post-mortem examination and thereafter he recorded Dehati Nalishi
Ex. P. 12. He asserted that first information report had been recorded
at the. place of occurrence. He further stated that Dehati Nalishi was
recorded by him after the dead body of the deceased had been sent by
him for post-mortem examination which according to the document
(Ex. P. 8) was sent at 5.00 p.m. His statement clearly indicates that the E
first information report was written after 17 .00 hours and it was not
recorded at the time it purports to have been lodged. There are mate-
rial contradictions in the testimony of Rajendra Singh PW. 14 and the.
investigating officer. Since the Sub-Inspector, the District Magistrate
and the Superintendent of Police had reached the place of occurrence
within few minutes of the incident, the delay in lodging the first infor- F
mation report is highly suspicious. Why this delay when all officers
were present, and eye-witnesses were present at the spot and the
police station was at a distance of two furlongs. The obvious reason
appears to be that the names of the assailants were not known as most
likely the alleged two eye-witnesses had not seen the assailants and
they were not present at the scene of occurrence, at the time the G
shooting took place, in all likelihood, they like, others arrived at the
scene after the incident. Since names of the assailants were not known
the F.I.R. was lodged.with delay after deliberation.

This view finds support from testimony of Tohid PW 16 and
other circumstances. According to the prosecution the deceased Ram H
522 SUPREME COURT REPORTS I1988] 3 S.C.R.

A Pratap Singh had sent Tohid to purchase bus tickets and had directed
him to meet him at the Chungi Naka on Ajaigarh Road. He had
further told Tohid PW 16 that he was apprehending danger from the
accused persons so he would get into bus at the Toll barrier. After
giving instructions to Tohid he proceeded to Chungi Chowki (Octroi
Post) along with Rajendra Singh and Chhotey Bhaiya. The prosecu-
B tion further alleged that after the occurrence took place Ram Pratap
Singh's dead body was lying near Takhat at the Octroi barrier when
Thiod arrived at the scene. He met Rajendra Singh PW 14 and
Chhotey Bhaiya PW 15 who were waiting. Tohid PW 16 testified that
when he reached the toll barrier neither Rajendra Singh nor Chhotey
-
Bhaiya disclosed the names of the assailants. Chhotey Bhaiya PW 15 in
C his testimony stated that when Tohid arrived at the scene of occurr-
ence he did not enquire from him or from Rajendra Singh as to who
had killed Ram Pratap Singh. At a later stage in cross examination he
said that Tohid had asked Rajendra Singh PW 14 who had killed Ram
Pratap Singh but Rajendra Singh told him that he would tell him later
while going to the police station for lodging the first information
D report. According to Rajendra Singh PW 14 when Tohid reached the
spot he directed him to proceed to the Collectorate and give informa-
tion to the police about the murder having taken place. Tohid pro-
ceeded to the Collectorate and from there he contacted the Kotwali
on telephone and gave information about the murder having taken
,.place near the Toll barrier. Rajendra Singh PW 14 has stated that
IO neither Tohid asked nor he told him the names of the assailants. This
conduct is highly improbable and unnatural. Admittedly Tohid,
Rajendra, Chhotey Bhaiya and the deceased were friends of each
other and Tohid had been sent by the deceased to bring bus tickets and
he had also told him about apprehensions to his life and according to
the Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 when Tohid
F arrived at the scene he did not enquire about the names of the assail-
ants, although dead body of the deceased was lying at the spot. This is
highly unnatural. When Tohid was cross-examined on this question he
tried to explain that while he was proceeding to the police station
along with Rajendra Sing PW 14 to lodge the first information report
the latter had told him the names of the assailants. We have noticed
G earlier that according to investigating officer first information report
was recorded at the scene of occurrence and not at the police station.
This indicates that Tohid and Rajendra Singh's story regarding their
going together to Kotwali is highly suspicious. In view of the material
contradiction in the statement of three witnesses Rajendra Singh PW
14, Chhotey Bhiaya PW 15 and Tohid PW 16 and furtherin view of the
H discrepancy regarding the delay in lodging the first information report,
AWADHESH v. STATE OF M.P. [SINGH, J.] 523

it is apparent that till the first information report was lodged nobody
A
knew who the assailants were and. that is why Rajendra Singh could
not disclose the names of the assailants to Tohid on his arrival at the
scene of occurrence.

The prosecution relied upon the recovery of the two empty
cartridges one of them .315 rifle and the other of 12 bote gun. By B
recovery of these cartridges the prosecution tried to connect the appel-
lants with the commission of the crime as Raghvendra Singh was
alleged tci have fired from .315 rifle and Awadhesh with 12 bore gun.
The recovery of these empty cartridges were not made on 4.1.1982
instead these cartridges were recovered on 5.1.1982, although spot map
i- of the scene of occurrence was prepared on 4.1.1982 itself. It is
interesting to note that the spot where these cartridges were recovered c
was shown in the spot map prepared on 4.1.1982 although recovery
was made on 5.1.1982. The witnesses in whose presence recovery of
the cartridges were made have not supported the prosecution.
Moreover, it is the admitted case of the prosecution that there was
exchange of fire from both sides, by the ass.ailants as well as by D
Rajendra Singh and Chhotey Bhaiya, but no other cartridges were
recovered by the investigating officer. The investigating officer did not
take into possession the licenced rifle of Raghvendra Singh appellant
and the 12 bc;ire gnn of Awadhesh nor any effort was made to secure
the evidence of ballistic expert to prove that the empty cartridges had
been fired from the respective weapons. These circumstances indicate E
that empty cartridges were not recovered instead investigating officer
planted these cartridges to support the prosecution case.

On the evidence on record it is apparent that the Chungi Chowki
(Octroi Toll Barrier) was manned by the employees of the Municipal
Board and they were present at the spot and in addition to them there F
was Home Guard Office quite adjacent to the Toll Barrier and there
. were other residential houses near the Barrier and the place of occurr-
ence was a busy public place. It has further come into evidence that
large number of persons had gathered at the scene of occurrence but
surprisingly enough no employee of Toll Barrier, Home Guard or local
resident came forward to support the prosecution case. The District G
Magistrate, Superintendent of Police and other officers had' also
reached the spot within few minutes of the incident but none of them
entered the witness box to support the prosecution case. The prosecu-
tion produced Udai Singh PW 17 and Kali Charan PW 19 who deposed
that they had seen the appellants running away with weapons and that
they had recognised them. It is interesting to note that Udai Singh and H
524 SUPREME COURT REPORTS I 19881 3 S.C.R.

Kali Charan are residents of Uttar Pradesh and they are close relatives
A
of the deceased, their presence at the scene of occurrence was highly
doubtful and their testimony is not free from doubt, as they are highly
interested persons. The Trial Court rightly discarded their testimony
as their statement had been recorded by the police after two months of
the occurrence without there being any explanation for the delay.
B )
In his testimony Dr. Jain, who carried out the post mortem
examination of the dead body of deceased Ram Pratap Singh, stated
that he found following gun shot wounds:

"Gunshot wound No. l:
c (a) Wound of entrance: One circular wound 5 mm. in
diameter present two and a half inch below the left exilla
and half inch posterior to left exillary lime.

In the way the bullet had perforated the following
D organs of the body- The bullet had passed through the lat-
eral side of left 5th-ribe. There was a fracture oflateral side
of left 5th ribe. After that the bullet passed through the
lower third of left pleura and entered in the left lung and
perforated through the lung parindiama. There was
through and through (complete) perforation of lower third
E of left pleura and lung. After exit from the lung. it crossed
through the past side of right ventricle of heart. Posterior
side of right ventricle of heart was completely lacerated.
After exit from the posterior side of right ventricle of heart
the bullet passed through the upper border of liver and the
whole upper border of liver was completely lacerated.
f
(b) Wound of Exit: One circular wound in diameter present
bver posterior and right side of chest at the level of 7th
dorsel spine three and a half inch right lateral in the vertib-
ral column. The margins of the · wound were slightly
lacerated. There was fracture of 9th and 10th. ribe of right
G posterior side. The direction of passage of bullet of gun
shot in wound No. 1 was antere-posteriorly.

Gunshot wound No: 2:

(a) Wound of entrance-4 mm. diameter circular wound pre-
H sent over left 6th. intercostal space 2" lateral to left sterval
AWADHESH v. STATE OF M.P. [SINGH, J.] 525

border. After passing from the le(t 6th intercostal.space the A
bullet perforated the upper part of stomach. After escaping
from medial side of stomach it came out from side of chest
at the level of 7th dorsal spine from the 8th intercostal
space of right posterior side.
B
(b) Wound of exit-one circular wound 5 mm. in diameter
present at the level of 7th dorsal spine 2 and half inch right
lateral to spinal column. The direction of bullet of gunshot

- in wound No. 2 was entre posteriorly. Thororic cavity was
hugely filled with dark coloured blood.

Gunshot Wound No. 3: c
(a) Wound of entrance-3 mm. diameter circular would
present I" above postre-lateral aspect of right wrist. The
bullet had passed through the right radius have and the
wound of exit was over antro-lateral aspect 1" above the 0
right wrist joint. Wound of exit was circular 5 mm. in
diameter.''

These injuries could not be caused in the manner and from the
place where assailants were alleged to be present at the time of firing
the gun shots, and the same are inconsistent with the testimony of the E
eye witnesses and the site plan. We do not think it necessary to discuss
it in detail as the trial court has discussed this question at length and we
agree with those findings. According to the testimony of Rajendra
Singh and Chhotey Bhaiya PWs, when the deceased got gun shot
' injuries, he was at a higher level at the well whereas the assailants fired
..__ 'I \ the shots from Bari, which was at lower level by one foot from the road F
' J and the well was higher than the road by two or two and a half foot. In

T
this view if shots were fired from Bari, at the deceased who was drink-
ing water in a sitting posture, the injuries in all likelihood would have
been from lower part to upper part but Dr. Jain deposed that direction
of the injuries caused by bullet was from upper part to lower part and
the bullet was ante-posteriorly. In the opinion of the doctor, the G
person who caused injuries to the deceased was at higher level than the
deceased, this is wholly inconsistent with the testimony of eye-
witnesses. Though medical expert's opinion is not always final and
binding, but in the instant case it corroborates other circumstances
which .indicate that the eye-witnesses had not seen the actual
occurrence. H
'
526 SUPREME COURT REPORTS [19881 3 S.C.R.

A In view of the aforesaid facts and circumstances we are satisfied
that the prosecution has failed to prove its case beyond all reasonable
doubt, and the High Court committed error in interfering with the trial
court's order of acquittal. We accordingly allow the appeal set aside
the order of the High Court and the appellants' conviction and restore
the order of the trial court and acquit the appellants. The appellants
B are in jail, they shall be set forth to liberty forthwith.

S.L. Appeal allowed.

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