GOPAL SINGH AND ORS.versusSTATE OF M.P.

                        (2010] 6 S.C.R. 1062


A                   GOPAL SINGH AND ORS.
                                v.
                          STATE OF M.P.
                (Criminal Appeal No.1297 of 2008)

                           MAY 12, 2.010
B
         [HARJIT SINGH BEDI AND A.K. PATNAIK, JJ.]

       Appeal - Appeal against acquittal - Allowed by High
  Court - Justification - Held: On facts, not justified - If trial
C court's judgment is well based on the evidence and the
  conclusion drawn in favour of the acci.;;;;.;:d ts possible, High
  Court would not be justified in interfenng on the premise that
  a different view could also be taken - Though High Court is
  entitled to reappraise the evidence, there should be
D substantial and compelling reasons for setting aside an
  acquittal order and making one of conviction -· In the case at
  hand, the trjpl court gave positive findings with regard to
  various aspects of the prosecution story- The High Court was
  not able to meet the reasons which weighed with the trial court
E in drawing its conclusion - Case did not call for interference
  by High Court.

       According to the prosecution, due to serious enmity
  on account of land dispute, the appellants severely beat
  two persons with "lathis", "lohangis" and "farsas"
F thereby causing their death. The prosecution relied
  primarily on the 'eye-witness account of'PW5 and on the
  oral dying declarations made by the two deceased to
  PW4, PW9, PW10 and PW11. In addition, the prosecution
  relied on the recoveries made pursuant to the disclosure
G statements of the accused.
         The trial Court held it to be a case of delayed FIR. It
    found the dying declarations unbelievable, the evidence
    of the solitary eye-witness PW5 totally unnatural, and the
H                                1062
     GOPAL SINGH AND ORS. v. STATE OF M.P.              1063


investigation completely irresponsible and shoddy, and           A
accordingly acquitted the accused-appellants.

    Aggrieved by the judgment of acquittal, the State
Government filed appeal in the High Court which was
allowed.
                                                                 B
      In this Court, it was contended by the appellants, that
the High Court was remiss in upsetting the order of
acquittal as the trial court had by a very cogent and
detailed judgment considered every aspect of the matter
and acquitted the accused, and the High Court had                C
ignored the basic principle that if the view taken by the
trial court was possible on the evidence, no interference
should be made.

     Allowing the appeal, the Court                              D
        HELD: 1. The High Court's power while converting
  an acquittal into a conviction is no longer a matter of
  speculation and debate. It is now well settled that if the
  trial court's judgment is well based on the evidence and
  the conciusion drawn in favour of the accused was              E
  possible thereof, the High Court would not be justified in
  interfering on the premise that a different view could also
  be taken and though the High Court was entitled to
  reappraise the evidence there should be substantial and
  compelling reasons for setting aside an acquittal order        F
· and making one of conviction. (Para 7) [1071-C-D)

      2. A bare perusal of the record and the findings
 recorded by the trial court reveal that the present case is
 not one of the category which would call for interference       G
 by the High Court. The trial court has given positive
 findings with regard to the various aspects of the
 prosecution story. The High Court has, in the course of
 its judgment, .not been able to meet the reasons which
 weighed witt;J the trial court in drawing its conclusion. The
                                                                 H
    1064    SUPREME COURT REPORTS                [2010] 6 S.C.R.


A fact that the first report had been recorded at about 1 p.m.
  and suppressed by the prosecution has been largely
  ignored by referring to the first information recorded at
  about 4.45 p.m. after the Ruqa had been sent by Sub-
  Inspector from the place of incident to the Police Station.
B The High Court has also ignored the fact that there was
  no evidence to show as to when special report had been
  dispatched to or received by the Magistrate. The inference
  drawn by the Trial Court, therefore, that the first
  information of 1 p.m. had been suppressed by the
c prosecution as the names of the assailants were not
  known and that there was no evidence to confirm the
  time of the recording of the FIR shortly after 4.45 p.m. as
  there was no evidence of the dispatch or delivery of the
  special report, which cast clearly suspicion even on this
  part of the prosecution story, has not been dealt with by
0
  the High Court. [Para 8] [1071-A-H; 1072-A-B]

         3. The High Court has examined the reliability of the
    oral dying declarations made by the two deceased to the
    four witnesses but while observing that there were
E substantial discrepancies inter-se each of them, has still
  . chosen to rely on their statements. The Court has ignored
   the statement of the Dr. who opined that the injured would
    have been rendered unconscious within 10 to 15 minutes
    after receiving their injuries by opining that this fact would
F vary from person to person. This would undoubtedly be
    true, but the doctor's statement is only one of the factors
   which had weighed with the Trial Court in rendering its
    opinion. Even otherwise, an oral dying declaration made
   to a person who had very serious enmity with the
G accused should be accepted with a little hesitation and
    reservation. [Para 9] [1072-C-D]

         4. The High Court has accepted the statement of
    PW5 as the eye witness of the incident ignoring the fact
    that his behaviour was unnatural as he claimed to have
H
    GOPAL SINGH AND ORS. v. STATE OF M.P.                   1065


rushed to the village but had still not conveyed the                 A
information about the incident to his parents and others
present there and had chosen to disappear for a couple
of hours on the specious and unacceptable plea that he
feared for his own safety. Therefore, the judgment of the
High Court is erroneous for the above reasons. [Paras 10,            B
11] [1072-E-G]
    CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 1297 of 2008.

    From the Judgment and Order dated 24.03.2008 of the              C
High Court of Judicature of Madhya Pradesh at Jabalpur in
Criminal Appeal No. 60 of 1993.

     Fakhruddin, Munawar S. Aalam, Karim Ansari, Bharat
Bhushan, Raj Kishor Choudhary, Yusuf Khan, Rauf Rahim,               D
Yadunandan Bansal, Minu Sharma, Gulshan Jahan and Aftab
Ali Khan for the Appellants.

     Vibha Datta Makhija for the Respondent.

     The Judgment of the Court was delivered by                      E
    HARJIT SINGH BEDI, J. The prosecution story is as
under:

     1. On the 19th June 1990', the two deceased Rajmohan
and Niranjan Singh had gone to Jammusarkala to buy sugar             F
and while they were returning to their village and were passing
through the nearby forest, they were severely beaten by the six
accused with "lathis", "lohangis" and "farsas". Information of the
incident was given by Maina Banjara PW3 to Daulat Singh
PW4 and Sumer Singh PW10. Sumer Singh and Maina                      G
Banjara and several others then returned to the spot whereafter
Niranjan Singh and Rajmohan (injured) made oral dying
declarations that they had been beaten by the six accused with
the aforementioned weapons. The two died a short while later:
Intimation of the incident was also received in Police Station
                                                                     H
    1066    SUPREME COURT REPORTS                   (2010] 6 S.C.R


A Berasia at 3.40 p.m. by telephone and was recorded in Ex.P-
  3 on which Sub-Inspector O.P.Katiyar PW13 reached the place
  of incident along with a police force and found the dead
  bodies. A Ruqa was recorded at 4.40 p.m. at the site and on
  its basis a formal FIR was registered in the Police Station. The
B dead bodies were thereafter dispatched to the hospital for post-
  mortem which was performed by Dr. R.K.Sharma PW1 who
  found 28 injuries on each of the two deceased. During the
  course of the investigation, the accused were arrested and on
  the basis of their disclosure statements, the weapons of offence
c were also recovered. The police also ascertained that the two
  parties were very closely related inter-se and that there was
  gross enmity between them with respect to certain agricultural
  land. On the completion of the investigation, the accused were
  charged for an offence punishable under Section 302 read with
D Section 34 of the IPC as they pleaded not guilty, they were
  brought to trial.

        2. The prosecution in support of his case relied primarily
   on the eye - witness account of Feran Singh PW5 and on the
   oral dying declarations made by the two deceased to Daulat
E Singh PW4, Harnath Singh PW9, Sumer Singh PW10 and
   Shivraj Singh PW11. In addition, the prosecution relied on the
   recoveries made pursuant to the disclosure statements of the
   accused. The prosecution case was then put to the accused
   and the plea taken was of serious enmity on account of a land
F dispute between them and Daulat Singh PW4 as the latter was
 · keen to take over their agricultural land. The trial court recorded
   a comprehensive judgment and discussed the evidence under
   two broad heads (1) the eye witness evidence of Feran Singh
   PW5 and (2) the circumstantial evidence which included the
G motive behind the incident and the dying declaration of the
   deceased and the recoveries of the weapons of offence. The
   Court then examined the evidence of the prosecution in the
   background of the motive and observed that Maharaj Singh
   accused was the son of Balwant Singh from his first wife and
H the other accused were sons of Maharaj Singh whereas PW4
              .
           GOPAL.~INGH AND ORS. v. STATE OF M.P.                1067
                      [HARJIT SINGH BEDI, J.]

       Daulat Singh and PW9 Harnath Singh were also sons of A
       Balwant Singh though from a second wife and Feran Singh
       PW5 was son of Daulat Singh PW and Shivraj Singh PW11
       was son of Sumer Singh PW10, meaning thereby all the
       witnesses belonged to one large group. The Court also
       observed that from the evidence on record, it was amply clear · B
       that the relations between the two sets of brothers were very
       strained and several criminal litigations inter-se them and
       pertaining to a land dispute had started in the year 1984 and
       were subsisting even on the date of murder and that the
       periodic quarrels between them had caused great friction in the c
       family. The Court then went on to examine the prosecution story
       and recalled that two different stories had been projected by
       the prosecution, first, that a report had been filed by Daulat
..     Singh PW at the Police Station immediately after the crime had
       been committed at about 1 p.rr\. and the second that information D
       had been received on telephone as per Ex.P3 at 3.45 p.m. on
       which Sub-Inspector Katiyar PW13 had reached the place of
       incident at 4p.m and after spot inspection at 4.45 p.m. had
       initiated the recording of the FIR. The Court, however,
       disbelieved the statement of Sub Inspector that he had reached
       the place of incident at 4 p.m. observing that if the information E
       had been received at 3.45 p.m. it would not have been possible
       for him to have covered the 18 krrt distance through a very rustic
       rural road within 20 minutes.The Court, accordingly, .held that
       on account of the discrepancy with regard to the lodging of the
       FIR at 1 p.m. or after 4.45 p.m., the only inference that could F
       be drawn was that till 1p.m. the names of the accused were
       not known and that the report of 1 p.m. had been withheld by
       the prosecution. The Court then went into the alternative that
       assuming that the FIR had indeed been recorded shortly after
       4.45 p.m. and the incident had taken place at 10. or 10.30 a.m. G
     . about one km away from the village and the time taken ,in
       conveying the information to the village by Maina Banjara to
       Daulat Singh and Sumer Singh, it appeared to be a· case of a
       delayed FIR. Tfte Court further observed that there was no
       evidence to show as to when the copy of the FIR had been H
    1068    SUPREME COURT REPORTS                  [201 OJ 6 S.C.R.


A   received by the Magistrate, as provided by Section 157 of the
    Code of Criminal Procedure and finally concluded on this
    aspect by observing:

        "it could be safely deduced that the FIR was fin~lized
        deliberately as an after-thought, after having dispatched the
B
        dead bodies for post-mortem examinatiqn. Under these
        circumstances, namely the way in which the FIR was filed,
        as to whether in point of fact, the FIR was registered at
        4.45 p.m. or at 1 p.m., and the details regarding the crime,
        non-despatch of a copy thereof to the Magistrate, non-
c       compliance of immediate recording of the .incidence of
        crime, omission of the names of the accused persons in
        the text of the respective panchnamas on the bodies and
        also in the merge statements thereof, on perusal of all
                                                                        r
        these circumstances, I come to the conclusion that the
D       report was lodged with unwarranted delay and the
        prosecution has since failed to provide any logical
        explanation thereof. Under the above circumstances, prima
        facie the story put forth by the prosecution is highly
        doubtful."
E
        3. The Court then examined the dying declarations that
  have been allegedly made by the two deceased shortly before
  their deaths to Daulat Singh PW4, Harnath Singh PW9 and
  Sumer Singh PW10. The Court referred to the broad principle
F underlying the recording of a dying declaration and emphasized
  that its veracity had to be adjudged carefully as the maker was
  not available for cross-examination and the Court was thus
  called upon to exercise great caution and for that purpose two
  broad factors had to be kept in mind, firstly, that the person
  making the dying declaration was physically capable oflnaking
G it, and secondly that the statement, if made, represented the
  true state of affairs. The Court then examined the statement of
  the witnesses to the dying declaration and observed that as the
  evidence inter-se them was completely discrepant as to the
  manner in which the dying declaration had been made, a
H serious doubt was cast on the truthfulness of their testimony.
     GOPAL SINGH AND ORS. v. STATE OF M.P.                 1069
             [HARJIT SINGH BEDI, J.]

The Court also referred to the evidence of Dr. R.K.Sharma PW,       A
the doctor who had performed the post-mortem examinations,
and had found 28 wounds on each body, and observed that as
per the statement of the doctor both the injured would have been
rendered unconscious within 10 to 15 minutes looking to the
critical nature of the wounds. The Court then tested the            B
prosecution story on this basis and opined the incident had
occurred around 9 or 10 a.m., as suggested, and Daulat Singh
and Sumer Singh had taken an hour to reach the place of
incident (as Daulat Singh had virtually admitted that they had
reached the site of at 11 a.m.), it appeared to be extremely        c
doubtful that Rajm·ohan and Niranjan Singh were in a position
to make any statement. The Court also examined the
statement of Harnath Singh PW9 and observed that it was a
 blatant lie and that it would have been impossible for him to
 reach the place of incident to become a witness to the oral        D
dying declarations. The Court, accordingly, concluded fhat the
statements of the aforesaid witnesses were totally contradictory
and illogical and in point of fact the deceased were not in a
position to make any statement and that under these
 circumstances, "the story of the dying declaration was totally     E
 made up, unnatural and non-dependable." The Court also
examined the evidence of the solitary eye witness Feran Singh
 PW son of Daulat Singh and recorded a positive finding that
the story projected by him was totally unnatural inasmuch that
he had rushed to the village from the site after seeing the
incident about I km away where his father, uncle, brothers,         F
cousins and the entire family had been present, but he did not
tell them as to what had happened but had, in fact, hidden
himself on the plea that he feared for his own safety. The Court
ultimately concluded that the evidence was against normal
human behaviour and could not be deemed to be trust-worthy.         G
The Court also held that the investigation in the matter was
completely irresponsible and shoddy and the police had made
no attempt to ascertain the identity of the person who had made
the telephone call leading to the recording of Ex.P3 at 3.40 p.m.
 and the prosecution story appeared to have been built on the       H
     1070    SUPREME COURT REPORTS                    [2010] 6 S C.R


A    assumption that as the relations between the parties were
     strained, it were the accused and accused alone, who were
     responsible for the double murders. The trial court, accordingly,
    ~cquitted the accused.

         4. Aggrieved by the judgment of acquittal, the State of
8
     Madhya Pradesh filed an appeal in the High Court and the
     appeal has been allowed. The judgment of the High Court is
     under challenge before us after the grant of special leave.

          5. It has been urged by Mr. Fakhruddin, the learned senior
C    counsel for the appellants, that the High Court was remiss in
     upsetting the order of acquittal as the trial court had by a very
     cogent and detailed judgment considered every aspect of the
     matter and acquitted the accused, and that the High Court had
     ignored the basic principle that if the view taken by the trial
o    court was possible on the evidence, no interference should be
     made. It has been highlighted that the trial court had considered
     the evidence under two broad heads and recorded a positive
                               •
     finding that the first report of the incident at about 1 p.m. had
     been suppressed by the prosecution and the report recorded
E    after 4.45 p.m. was, thus, not the first information report but even
     assuming that it was the first report, the fact that there was no
     evidence to show that the special report had been delivered
     to the Magistrate belied the prosecution story that it had been
     recorded at about 4.45 p.m. It has also been pointed out that
F    the serious animosity between the parties was proved on
     record and several litigations that were continuing since 1984
     was the evident cause for the false implication of the accused,
     who were the father, Maharaj Singh and his five sons. It has
     further been submitted that the prosecution had placed primary
     reliance on the dying declarations made by the two deceased
G    to four different persons and in the light of the statement of Dr.
     Sharma PW that the injured could not have remained conscious
     for more 10 or 15 minutes after sustaining the injuries, the story
     of the oral dying declarations allegedly made about two hours
     thereafter could not be believed. It has further been pointed out
H    that the conduct of Feran Singh PW5 the solitary eye witness
     GOPAL SINGH AND ORS. v. STATE OF M.P.                   1071
             [HARJIT SINGH BEDI, J.]

was completely unnatural and belied his presence.                      A
      6. Mrs. Vibha Dutta Makhija, the learned counsel
appearing for the.State has, however, supported the judgment
of the High Court and has argued that the High Court was
justified in believing the prosecution story as the incident had
                                                                       B
happened all of a sudden and a quick and clock work like
investigation could not be expected in India's rural set up.

     7. We have considered the arguments advanced by the
learned counsel for the parties. The High Court's power while
converting an acquittal into a conviction is no longer a matter        C
of speculation and debate. It is now well settled that if the trial
court's judgment is well based on the evidence and the
conclusion drawn in favour of the accused was possible thereof,
the High Court would not be justified in interfering on the
premise that a different view could also be taken and though           D
the High Court WC)S entitled to reappraise the evidence there
 should be substantial and compelling reasons for setting aside
 an acquittal order and making one of conviction.

       8. A bare perusal of the record and the findings recorded
. by the trial court reveal that the present case is not one of the    E
  category which would call for interference by the High Court.
  The trial court has given positive findings with regard to the
  various aspects of the prosecution story already referred to
  above. The High Court has, in the course of its judgment, not
  been able to meet the reasons which weighed with the trial court     F
  in drawing its conclusion. The fact that the first report had been
  recorded at about 1 p.m. and suppressed by the prosecution
  has been largely ignored by referring to the first information
  recorded at about 4.45 p.m. after the Ruqa had been sent by
  Sub- Inspector Katiyar from the place of incident to the Police      G
  Station. The High Court has also ignored the fact that there was
  no evidence to show as to when special report had been
  dispatched to or received by the Magistrate. The inference
  drawn by the Trial Court, therefore, that the first information of
  1 p.m. had been suppressed by the prosecution as the names           H
    1072    SUPREME COURT REPORTS                  (2010] 6 S.C.R


A of the assailants were not known and that there was no
  evidence to confirm the time of the recording of the FIR shortly
  after 4.45 p.m. as there was no evidence of the dispatch or
  delivery of the special report. which cast clearly suspicion even
  on this part of the prosecution story, has not been dealt with by
B the High Court.

       9. The High Court has examined the reliability of the oral
  dying declarations made by the two deceased to the 'four
  witnesses but while observing that there were substantial
  discrepancies inter-se each of them, has still chosen to rely on
C thefr statements. The Court has ignored the statement of Dr.
  Sharma PW who opined that the injured would have been
  rendered unconscious within 10 to 15 minutes after receiving
  their injuries by opining that this fact would vary from person to
  person. This would undoubtedly be true, but the doctor's
D statement is only one of the factors which had weighed with the
  Trial Court in rendering its opinion. Even otherwise, an oral
  dying declaration made to a person who had very serious
  enmity with the accused should be accepted with a little
  hesitation and reservation.
E
       10. We also find that the High Court has accepted the
  statement of Feran Singh PW5 as the eye witness of the
  incident ignoring the fact that his behaviour was unnatural as
  he claimed to have rushed to the village but had still not
F conveyed the information about the incident to his parents and
  others present there and had chosen to disappear for a couple
  of hours on the specious and unacceptable plea that he feared
  for his own safety.
        11. We are, therefore, of the opinion that the judgment of
G the High Court is erroneous for the above reasons. We,
  accordingly, allow the appeal and direct the acquittal of the
  accused. If they are in custody, they shall be released forthwith.
  If they are on bail, their bail bonds shall stand discharged.

H B.B.B.                                          Appeal allowed.