SADHU SARAN SINGHversusSTATE OF U.P. AND ORS.

                         [2016] l S.C.R. 913



                     SADHU SARAN SINGH                                    A
                                  v.
                     STATE OF U.P. AND ORS.
              (Criminal Appeal Nos. 1467-1468 of2005)
                        FEBRUARY 26, 2016                                 B

           [DIPAK MISRA AND N.V. RAMANA, JJ.]
       Penal Code, 1860 - ss.147, 148, 149, 302, 307 and 504 -
Prosecution under - Death of three persons and injury of eye-witness
- Caused by five accused - Trial court convicted all the accused          C
and sentenced three of the accused to life imprisonment and two of
the accused to death sentence for the offence of murder - High
Court acquitted all the accused of all the charges - On appeal,
held: The reasons given by High Court acquitting the accused are
flimsy, untenable and bordering on perverse appreciation of
evidence - Prosecution case was fully supported by the ocular             D
evidence of two eye-witnesses - Non-examination of injured wilness
would not 'be fatal to the prosecution case, in the facts of the case -
The prosecution case cannot be detailed on the ground of absence
of independent witness as long as the evidence of the eye-witnesses
is trustworthy -All the accused are liable to be convicted - However,
                                                                          E
the death sentence of the two accused awarded by the trial court is
converted to life imprisonment and ali the accused are sentenced to
life imprisonment.
       Appeal - Against acquittal - Power of appellate court - Scope
of - Held: Court has the power to review and relook the entire
                                                                          F
evidence - Appellate Court can interfere with the acquittal order if
it is based on erroneous views and against settled position of law.
     Judgment - Reason is the heartbeat of every conclusion in a
;udgment - Without proper reason, the conclusion becomes lifeless.
      Allowing the appeals, the Court                                     G
     HELD: 1. Generally, an appeal against acquittal has always
been altogether on a different pedestal from that of an appeal
against conviction. In an appeal against acquittal where the
presumption of innocen.ce in favour of the accused is reinforced,
                                                                          H
                                 913
914                  SUPREME COURT REPORTS                (2016] I S.C.R.


A     the appellate Court would interfere with the order of acquittal
      only when there is perversity of fact and law. However, the
      paramount consideration of the Court is to do substantial justice
      and avoid miscarriage of justice which can arise by acquitting the
      accused who is guilty of an offence. A miscarriage of justice that
      may occur by the acquittal of the guilty is no less than from the
B
      conviction of an innocent. While dealing with an appeal against
      acquittal, the appellate court has no absolute restriction in law to
      review and relook the entire evidence on which the order of
      acquittal is founded. If the appellate Court, on scrutiny, finds that
      the decision of the Court below is based on erroneous views and
c     against settled position of law, then the interference of the
      appellate Court with such an order is imperative. [Paras 18 and
      19] f923-E-F; 924-BJ
            Sambasivan and Others v. State of Kera/a (1998) 5 SCC
            412: 1998 (3) SCR 280; Chandrappa v. State (Jf
D           Karnataka (2007) 4 SCC 415: 2007 (2) SCR 630 -
            relied on.
           2.1 Reason is the heartbeat of every conclusion, without
      proper reason the conclusion becomes lifeless. The judgment of
      the High Court deserves to be set aside on the ground of lack of
 E    reasoning. The reasons given by the High Court to reverse the
      conviction and sentence of the accused are flimsy, untenable and
      bordering on perverse appreciation of evidence. (Para 21)
      (925-D; 929-EJ
         2.2 The evidence of PW 1, who is an eyewitness who lost
 F three sons in the fateful incident was consistent and there was no
   major deviations or discrepancies and if at all any minor
   discrepancies that occurred in the evidence of PWl might have
   been due to the long gap between the date of incident and the
   long delay in examination, more so, those discrepancies are not
   material in bringing home the guilt of the accused. The statements
 G of PW 1 are fairly corroborated by the statements of PW 2.
   [Para 21)[926-B-C]
         2.3 There is no reasoIJ. whatsoever to disbelieve the
   evidence of PW2 , another key eyewitness present at the time of
   incident. Nothing has come out in.his examination-in-chief or in
 H cross-examination which creates a doubt on the veracity of his
     SADHU SARAN SINGH v. STATE OF U.P. AND ORS.                      915



statement. Moreover, he has been consistent in his version and        A
fnlly snpported the prosecntion story. [Para 21][926-E-F]
      2.4 The .High Court for acquitting the respondents, had
mainly relied upon the medical evidence in a very inappropriate
manner. When the doctor (PW 7) in his examination-in-chief had
categorically stated that the incident could have occurred at 8.00    B
a.m. which corroborated the case of the informant, there was no
reason to disbelieve this fact to hold that the incident occurred
between 2.00 to 4.00 a.m. merely basing on a vague statement
made by the Doctor in the cross-examination. Merely for the
reason that no blunt injuries were present on the deceased, the
whole evidence of PW 1 cannot be discarded as primacy has to          c
be given to the ocular evidence particularly in the case of minor
discrepancies. [Para 21][926-H; 927-A-B]
      Darbara Singh v. State of Punjab, (2012) 10 SCC
      476: 2012 (7) SCR 541 - relied on.
                                                                      D
       2.5 The place of occurrence is proved beyond doubt in the
Ught of evidences of PW 1, PW 2, PW 3 and PW 4. Apart from
this, the investigating officer had recovered blood stained roll of
the clay and plain clay from the place of incident (Ext.Ka-8) and
also had recovered cartridges from the place of the incident. Even
as per the forensic report, human blood was found on the roll of      E
clay (Ext.Ka-37). [Para 21] [927-F-G]
      2.6 Thongh the prosecntion had made an attempt to produce
the injured witness, they failed to do so as he was kidnapped at
the relevant period. This stands proved by the registration of
two Fffis dated 12.09.1997 and 06.10.1997 which establish the         F
fact that the injured witness was threatened and kidnapped.
Therefore, non-examination of injured witness could not be fatal
to the case of the prosecution and the same cannot be a ground
to disregard the evidence of PWs 1 & 2. Thus, no adverse
inference can be drawn against the prosecution for not examining      G
the injured witness. [Para 21] [927-H; 928-A-B]
      Rajan Rai v. State ofBihar 20.06 0) SCC 191: 2005
      (5) Suppl. SCR 128 - relied on.
      2.7 There is no doubt that the prosecution has not been
able to prodnce any independent witness. But, the prosecution         H
916                 SUPREME COURT REPORTS                 [2016] l S.C.R.


A     case cannot be doubted on this ground alone. Civilized people
      are generally insensitive to come forward to give any statement
      in respect of any criminal offence. Unless it is inevitable, people
      normally keep away from the Court as they feel it distressing and
      stressful. Though this kind of human behaviour ts indeed
      unfortunate, but it is a normal phenomena. This handicap of the
B
      investigating agency in discharging their duty cannot be ignored.
      The entire case cannot be derailed on the mere ground of absence
      of independent witness as long as the evidence of the eyewitness,
      though interested, is trustworthy. [Para 21)(928-C-EJ
        2.8 The accused-respondents had enmity with the
c complainant party over a land dispute and that Ext.Ka-2 and Ka-
  3, the complaints made prior to the incident, could not be an
  after-thought as both the exhibits bear signature and dates on
  which these were received by the police. Thus, in the light of.
  above discussion, it can be safely held that the accused
D respondents had strong motive to commit the offence against
  the complainant party. [Para 21)(928-F-HJ
           2.9 The High Court, while passing the impugned judgment
      and order, has failed to consider that the two of the respondents-
      accused had not succeeded in proving their plea of alibi.
 E    JPara 21_U929-AJ
            3. The trial Court has awarded death sentence to the
      respondents-accused 'R' and 'K'. The Court is not able to concur
      with the view taken by the trial Court as the reasoning of the trial
      Court does not convince this Court that this is the rarest of the
 F    rare cases which warrants the penalty of death sentence. The
      judgment and order passed by the Trial Court is modified by
      convicting all the accused respondents to life imprisonment under
      Section 302/149 IPC. [Paras 21 and 22)(929-F-HJ
                             Case Law Reference
 G    _1?98 (3) SCR 280                    relied on.       Para 18
      2007 (2) SCR 630                     relied on.       Para 20
      2012 (z) SCR 541                     relied on.        Para 21
      2005 (5) Suppl. SCR 128              relied on.        Para 21
 H
      SADHU SARAN SINGH v. STATE OF U.P. AND ORS.                             917



      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal                        A
Nos. 1467-1468 of2005
      From the Judgment and Order dated 07.12.2004 of the High Court
of Judicature at Allahabad, in Criminal Appeal No. 2701 of2003 and
Cr!. Appeal No. 5802 of2003                               ·
     Vishwajit Singh, Ridhima Singh, Pankaj Singh, Gaurav Singh,              B
Gaurav Tripathi for the Appellant.
     Ranjit Rao,Pramod Swarup, Prashant Chaudhary, Sushma Verma,
Anuvrat Sharma, Alka Sinha for the Respondents.
      The Judgment of the Court was delivered by                              c
      N.V. RAMANA, J. I. These appeals are directed against the
judgment passed by the High Court of Judicature atAllahabad in Criminal
Appeal Nos.2701 and 5802 of2003, dated 07.12.2004, by which the
High Court has allowed the appeals filed by the accused- respondents
herein and acquitted them forthe offences under Sections 147, 148, 149,
                                                                              D
302, 307 and 504 of the Indian Penal Code, 1860 (for short 'the !PC').
        2. It is pertinent to mention here that the appellant before us was
not a party before the Courts below and the present appeals have been
preferred by him with the leave of this Court. The locus of the appellant
is that he is the brother of the informant Bhola Singh (PWl) who died
                                                                              E
during the pendency of the appeal before the High Court and also paternal
uncle of the three deceased persons (Sons of informant Bhola Singh-
PWl ).
       3. The facts in brief, as unfolded by the prosecution case are that
Bhola Singh (PW! }-the informant is a resident of village Kanso, district
                                                                              F
Mau and on 4'h October, 1994 at about 8 am when his sons namely Sheo
Kumar, Avdhesh and Yogendra (all three deceased) were repairing the
cattle trough in presence of one Ganga Singh, brother-in-law of the
informant and one Baijnath Singh (PW c), the accused Ramashraya
Singh, Satyendra Singh, Brijendra Singh along with their father
Ramchandra Singh armed with deadly weapons came to the Baithka of             G
the informant-Bhola Singh with the company of Kam la Singh and Ram
Saran Singh hurling filthy abuses. While Ramchandra Singh exhorted
his sons to eliminate the whole family of the victim, the accused
Ramashraya Singh and Kamla Singh opened fire with guns while
Satyendra Singh and Brijendra Singh attacked with katta upon the three
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918                   SUPREME COURT REPORTS                     [2016] I S.C.R.


A     sons of Bhola Singh (PW!). The other accused also attacked the victim
      party with their respective weapons. In the assault, the three sons of
      PW! sustained injuries and fell on the ground and Ganga Singh, brother-
      in-law of PW! sustained firearm injuries. During the ongoing tussle,
      PW I-Bhola Singh ran into the village and raised hue and cry whereupon
      the assailants took to their heels. The attack resulted into the death of
B
      two sons of the informant i.e. Shivshankar and Avadhesh on the spot
      while another son i.e. Yogendra breathed his last on the way to the
      hospital.
             4. At the instance of the informant (PW I), a First Information
      Report (Ext. Ka-I) was lodged at 9.15 a.m. on the same day at
C     Haldharpur P.S. wherein PW! stated that the incident had taken place
      on account of enmity over land dispute between the parties. Constable
      Muharrir Ram Manohar Maurya (PW-3) prepared the chick report (Ext.
      Ka-4) and registered the case as Crime No.219/94 under Sections
      147,148, 149, 302, 307 and 504 !PC. The injured Ganga Singh was then
 D    sent for medical check up to the Primary Health Centre.
             5. Sub-Inspector Riyayatullah Khan, the Investigating Officer
      visited the place of occurrence, held inquest of the dead bodies, prepared
      site map and recorded the statement of the informant. He then collected
      blood stained roll ofclay and plain clay and prepared memo. Dr. 0.P.Singh
 E    (PW 6) who conducted medical examination of the injured Ganga Singh
      opined in his report (Ext.Ka-33) that all the injuries were caused by fire
      arms and were sustained within a period of 6 hours.
            6. Dr. Jitendra Kumar Singh (PW7) conducted post-mortem
      examination on the bodies of the three deceased persons. By his reports
 F    Ka-34, 35 and 36, he expressed the opinion that the incident might
      have occurred at 8.00 a.m. and that the intestines of all the three deceased
      contained semi-digested food material and the injuries suffered by the
      victims were of firearms and there was no blunt object injury. On 7-I 0-
      1994, the 1.0. arrested Ramchandra Singh and Ramsaran Singh and
      recorded statements of witnesses. The 1.0. filed charge sheet (Ext.
 G    Ka-32) against all the six accused persons. Since the accused have
      denied the charges and prayed for trial, the case was committed to the
      Court of sessions.
            7. The prosecution, in support of its case, had examined two
      eyewitnesses, namely, the informant Bhola Singh (PW I), father of all
 H
      SADHU SARAN SINGH v.. STATE OF U.P. AND ORS.                               919
                  [N.V. RAMANA, J.l

the three deceased persons and Baijnath Singh (PW 2) and five formal             A
witnesses i.e. PW 6 Dr.O.P.Singh and P.W.7 Dr.Jitendra Kumar Singh,
PW 5 the Investigating Officer and PW 4 the Sub-Inspector and PW 3
Constable Ram Manohar Maurya, who prepared the chick FIR and
General Diary entry pertaining io registration of the case. On the other
hand, the accused have produced four witnesses in their defence. During
                                                                                 B
the pendency of trial, one accused, namely, Ramchandra Singh died.
        8. The Trial Court, after a full-fledged trial, came to the conclusion
that the accused were guilty of committing a cruel and heinous offence
and by its detailed judgment dated 22-05-2003 sentenced Ram Saran
Singh, Satyendra Singh and Brijendra Singh to undergo life imprisonment
for the offence under Section 302/149, IPC and imposed fine of                   c
Rs. I 0,000/-. In default, they were directed to undergo two years' rigorous
imprisonment. They were also convicted under Section 307/149 IPC
and sentenced to seven years' rigorous imprisonment and a fine of
Rs.5,000/-. In default, to undergo one year rigorous imprisonment.
Conviction under Section 148 !PC was also recorded against these                 D
appellants. They were sentenced to two years' rigorous imprisonment
and a fine ofRs.1,000/-. In default, six months' rigorous imprisonment
was imposed on them. Death Sentence was imposed upon Ramashraya
Singh and Kamla Singh under Section 302/149 !PC with a fine of
Rs.10,000/-. In default, the appellants were directed to undergo two
years' rigorous imprisonment. They were also convicted under Section             E
307/149 !PC and were sentenced to 7 years' rigorous imprisonment and
a fine of Rs.5,000/-. In default, to undergo rigorous imprisonment for
one year. Conviction under Section 148 IPC was also recorded against
these appellants. They were sentenced to two years' rigorous
imprisonment and a fine ofRs.1,000/-. In default of payment of fine, six         F
months' rigorous imprisonment was imposed.
         9. Aggrieved thereby, all the five accused persons preferred
. criminal appeals before the High Court. The High Court recorded
  complete disagreement with the findings given by the Sessions Judge
  and allowed the appeals of the accused by setting aside the judgment of        G
  the trial Court and acquitted them of the charges and also rejected the
  Reference for confirmation of death sentence of the accu.sed
  Ramashraya Singh and Kamala Singh. Dissatisfied with the order of
  acquittal passed by the High Court, the brother of the deceased informant
  filed the present appeals by way of special leave.
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920                   SUPREME COURT REPORTS                   [2016] 1 S.C.R.



A            I 0. We have heard Shri Viswaj it Singh, learned counsel for the
      appellant and Shri Ranj it Rao, learned Additional Advocate General for
      the State and Shri Pramod Swarup, learned senior counsel for the accused-
      private respondents herein.
             11. Shri Vishwajit Singh, learned counsel for the appellant
 B    vehemently contended that the High Court committed a manifest and
      grave error in analyzing the evidences of PW! and PW2 and acquitted
      the accused without proper application of mind. It ought not to have
      rejected the ocular evidence of the informant PW I Bhola Singh, the
      ultimate victim and father of the three deceased persons. The finding of
      the High Court that PW I was not present on the spot is untenable and
c     treating his evidence as unreliable, is totally perverse and bad in law in
      view of the true nature and circumstances of the case. A prudent analysis
      of evidence of PW-I would clearly suggest thatthere are no discrepancies
      in his evidence and rather it abundantly makes clear that he is a wholly
      reliable witness and his evidence is trustworthy.
 D           12. Similarly, the view expressed by the High Court that the
      presence of PW 2-Baijnath Singh atthe scene ofoccurrence is doubtful
      and it is an afterthought, cannot be sustained as perusal of FIR lodged
      by PW-I Bhola Singh unequivocally shows that the name of PW-2
      Baijanth Singh was referred in the FIR and his presence at the place of
 E    occurrence was established beyond any reasonable doubt. Moreover,
      nothing has been elicited in his examination-in-chief or cross-examination
      mounting a doubt on the veracity of his statement. Moreover, the witness
      has been consistent in his statement fully supporting the prosecution
      story.

 F           13. Lamenting on the view taken by the High Court in disregarding
      the abduction of Ganga Singh, the injured witness, learned counsel
      explained that Ganga Singh could not be produced in the witness box by
      the prosecution for the reason that he was kidnapped by the accused
      persons after being threatened and beaten up by them. In this regard,
      two F!Rs, i.e. one on 6.10.1997 and before that another on 12.9.1997
 G    were also lodged which would show that Ganga Singh was purposely
      kidnapped during the period when the evidence of the witnesses were
      going on and the High Court has wrongly mentioned that a photocopy of
      the final report would show that the allegation of kidnapping was
      fabricated and although no such document was either exhibited before
      the Trial Court or before the High Court. According to him, the timing of
 H
      SADHU SARAN SINGH v. STATE OF U.P. AND ORS.                             921
                  [N.V. RAMANA, J.l


the aforesaid kidnapping and threatening also coincided with the fact         A
that the statement of PW-I Bhola Singh was completed on 24. 7.1997
and the statement of PW-2 Baijnath Singh was completed on l 3. l l.l 997.
Regardingthe minor inconsistency between medical and ocular evidence,
it is argued that it cannot derail the case of the prosecution as the
inconsistency is not of an extreme nature and weightage has to be given
                                                                              B
to the evidence of eyewitness as per settled law. Merely for the reason
that no blunt injuries were found on the bod.ies, even when the complainant
had alleged, is ofno consequence.
        14. Negating the finding of the High Court as to the place of
occurrence, learned counsel submitted that the High Court did not
consider the case in its proper perspective. A perusal of entire evidence
                                                                             c
on record would clearly establish the place of occurrence and that the
prosecution has succeeded in proving the guilt beyond all reasonable
doubt. The evidence on record clearly reveals that the Investigating
Officer had recovered the blood stained roll of the clay and the plain
clay from the place of incident, which was sent for examination wherein D
on analysis, human blood was found on the same. Even the evidence of
eyewitnesses PW-I Bhola Singh and PW-2 Baijnath Singh is very much
consistent on the said aspect and, therefore, the I-I igh Court was wrong
to raise a dispute on the place of occurrence. Contending further on the
 doubt raised by the High Court on the timing of incident, learned counsel
                                                                              E
 submitted that the High Court has laid a lot of emphasis on the presence
 of semi-digested food in the medical report and has held that it totally
 contradicts the case of prosecution with regard to the time ofoccurrence
 of the offence, whereas the doctors (PWs 6 & 7) in their examination-
 in-chief have clearly stated that the incident might have taken place at
 8 a.m. Thus the High Court erred in recording a finding contrary to the F
 evidence, particularly for the reason that in villages generally people
 wake up early in the morning and start work early after having breakfast
  and, therefore, presence of half-digested food cannot be a probable ground
  to arrive at a conclusion that the deceased must have died at night.
  Learned counsel finally submitted that for all the aforesaid reasons, the
                                                                              G
   High Court ought not to have interfered with the well-reasoned judgment
   of the trial Court. In support of his submissions, learned counsel placed
   reliance on various authorities of this Court.
         1S. The learned counsel for the State supported the contentions
  of the appellant and conceded that the High Court erred in acquitting the
                                                                                  H
922                 SUPREME COURT REPORTS                    [2016] I S.C.R.


A respondents-accused ignoring certain relevant circumstances and material
   evidence which clearly establisl)ed the guilt of the accused. According
   to him, the High Court has utterly failed to consider the genuine facts
  ·that the FIR was lodged at 9.15 a.m. immediately after the incident
   without any unreaso.ned delay, evidence of both the eyewitnesses i.e.
B PW-I AND PW-2 were reliable as their statements were completely
   corroborated by the medical evidence; the injured Ganga Singh though
   could not be examined by the prosecution but had been medically examined
    by PW-6 on the same day corroborating the prosecution's story and the
   motive of the accused to commit the crime was established as they
    were having enmity with the victim party in respect of a land dispute.
C Learned counsel, therefore, prayed that considering the abundant and
    cogent evidence available on record, this Court should exercise its powers
    under Article 136 of the Constitution oflndia and set aside the impugned
    judgment and order by convicting the accused.
           16. Per contra, learned counsel appearing for the accused
 D respondents submitted that the prosecution case is unreliable for the
   reasons that the place of occurrence and lodging of FIR is very much
   disputed, there is difference between the medical and oral evidence of
   the witnesses, the so called injured witness Ganga Singh despite beinga
   relative of the informant, has not been examined before the Court and
   the presence of semi-digested food in the stomach of the deceased
 E
   suggests that the incident could have occurred between 2.00 to 4.00
   a.m. totally controverting the stand taken by the prosecution. The High
   Court has prudently appreciated these facts and rightly held that the
   investigation department was hand in glove with the complainant who
   wanted to implicate the accused in the alleged crime. The alleged F!Rs
 F purporting to establish kidnapping story of Ganga Singh cannot be of any
   consequence as the same were concocted and was rightly disregarded
   by the High Court. M'oreover, from the statements of PW-I Bhola Singh
   and PW-2 Baijnath Singh, it cannot be inferred that they were actually
   present at the scene of offence at the time of occurrence of the incident
   since their evidence does not support the same. Disputing the scene of
 G occurrence, learned counsel contended that as per prosecution version,
   all the three deceased were laying clay on the nand but PW-4 Riyatullah
    Khan, who has prepared the panchnama had not found any clay on the
   dead-bodies of the deceased nor in the post-mortem no clay was found
   by PW-7 Dr. Jitendra Kumar. Another clinching factor in this regard is
 H that the place of firing as shown in the sketch map prepared by the 1.0.
      SADHU SARAN SINGH v. STATE OF U.P. AND ORS.                                923
                  [N.V. RAMANA, J.l

is contradictory to the place referred by PW-I and P.W.2. in their               A
statements. The motive factor also stood not proved beyond reasonable
doubt, considering the statement of PW! who had categorically stated
in his evidence that there was no dispute with regard to haudi and the
land abutted to that.
        17. Learned counsel further contended that General Diary of the          B
case.has been prepared on the plain paper, contrary to the provisions of
the Police Regulation Act. Apart from this, entry of sending the case
diary to the Superintendent of Police has not been made in the G.D.,
whereas under para 295( 16) of the Police Regulation Act, it was necessary
that the documents which are received in the G.D. in the police station,
are sent to the police station after making entries; thus the IO has not         c
complied with the provisions of para 107 of the Police Regulation Act
and due to this reason, the investigation is vitiated. Learned counsel for
the accused therefore strenuously urged that there is no error in the
acquittal order passed by the High Court which does not call for any
 interference by this Court.                                                     D
         18. Generally, an appeal against acquittal has always been
altogether on a different pedestal from that of an appeal against
 conviction. In an appeal against acquittal where the presumption of
 innocence in favour of the accused is reinforced, the appellate Court
 would interfere with the order of acquittal only when there is perversity       E
.of fact and law. However, we believe that the paramount consideration
 of the Court is to do substantial justice and avoid miscarriage of justice
 which can arise by acquitting the accused who is guilty ofan offence. A
 miscarriage ofjustice that may occur by the acquittal of the guilty is no
 less than from the conviction ofan innocent. This Court, while enunciating
 the principles with regard to the scope of powers of the appellate Court        F
 in an appeal against acquittal, in the case of Sambasivan (lfU/ Ot/lers V.
 State ofKera/a, ( 1998) 5 SCC 412, has held :
      · "The principles with regard to the scope of the powers of the
        appellate Court in an appeal against acquittal are well settled.
       . T/1e po,wers of the appellate Court in an appeal against                G
        acquittal are no less t/lan in an appeal against conviction.
         But where on the basis of evidence on record two views are
         reasonably possible the appellate Court cannot substitute its view
         in the place of that of the trial Court. It is only when the approach
         of the trial Court in acquitting an accused is found to be clearly      H
924                   SUPREME COURT REPORTS                    [2016] I S.C.R.


A           erroneous in its consideration of evidence on record and in
            deducing conclusions therefrom that the appellate Court can
            interfere with the order of acquittal".
             19. This Court, in several cases, has taken the consistent view
      that the appellate Court, while dealing with an appeal against acquittal,
B     has no absolute restriction in law to review and relook the entire evidence
      on which the order of acquittal is founded. If the appellate Court, on
      scrutiny, finds that the decision of the Court below is based on erroneous
      views and against settled position of law, then the interference of the
      appellate Court with such an order is imperative.
c           20. This Court in Cfumdmppa V. Swte of Karnataktt, (2007) 4
      SCC 4 J5, after referring to a Catena of decisions, has laid down the
      following general principles with regard to powers of the appellate Court
      while dealing with an appeal against an order of acquittal:
            "42. From the above decisions, in our considered view, the following
D           general principles regarding powers of the appellate Court while
            dealing with an appeal against an order of acquittal emerge :
            (I)    An appellate Court has full power to review, reappreciate
                   and reconsider the evidence upon which the order of
                   acquittal is founded.
 E
            (2)    The Code of Criminal Procedure, 1973 puts no limitation,
                    restriction or condition on exercise of such power an
                    appellate Court on the evidence before it may reach its
                    own conclusion, both on questions of fact and of law.
 F           (3)   Various expressions, such as, 'substantial and compelling
                   reasons', 'good and sufficient grounds', 'very strong
                    circu1nstances~, 'distorted conclusions", "glaring mistakes",
                    etc. are not intended to curtail extensive powers of an
                    appellate Court in an appeal against acquittal. Such
                    phraseologies are more in the nature of 'flourishes of
 G
                    language' to emphasise the reluctance ofan appellate Court
                    to interfere with acquittal than to curtail the power of the
                    Court to review the evidence and to come to its own
                    conclusion.
             (4)   An appellate Court, however, •nust bear in mind that in case
 H
      SADHU SARAN SINGH v. STATE OF U.P. AND ORS.                             925
                  fN.V. RAMANA, J.l

             of acquittal, there is double presumption in favour of the       A
             accused. Firstly, the presumption of innocence is available
             to him under the fundamental principle of criminal
             jurisprudence that every person shall be presumed to be
             innocent unless he is proved guilty by a competent Court of
             law. Secondly, the accused having secured his acquittal,
                                                                              B
             the presumption of his innocence is further reinforced,
             reaffirmed and strengthened by the trial Court.
      (5)    If two reasonable conclusions are possible on the basis of
             the evidence on record, the appellate Court should not disturb
             the finding of acquittal recorded by the trial Court."
                                                                              c
       21. Reason is the heartbeat of every conclusion, without proper
reason the conclusion becomes lifeless. Having carefully considered the
impugned judgment and order passed by the High Court as also that of
the Trial Court and after perusing the records and giving anxious
consideration to the facts of the case on hand in the light of well-settled
law, in our considered opinion the judgment of the High Court deserves        D
to be set aside on the ground of lack of reasoning and for the following
compelling and substantial reasons:
      i) The High Court had taken a view that PW I - Bhola Singh,
      father of the deceased (brother of the appellant before us) had
      changed his version at the time of second Chief Examination.            E
      Upon giving our anxious consideration to the chronology of events,
      we find that after commencement of the trial, the evidence of
      PW! was started on 9.8.1996 and the chief-examination was
      concluded on 21.8.1996. On 9.1.1997 the cross-examination was
      started and further on 29.5.1997 the second Examination-in-chief        F
      was started as some of the accused had surrendered before the
      Court in the meanwhile. Second time Examination-in-chief was
      conducted on 29.5.1997 and ended up on 19.06.1997. Second
      Cross-examination started on 17.07.1997 which was further
      conducted on 24. 7.1997. As seen from the various dates, the
      record indicates that the first chief-examination of PW I, which        G
      started on 09.08.1996, was concluded after completing the second
      cross-examination on 24. 7. J997. So, it is clear from the evidence
       of PW l itself that the examination and cross-examination had
       taken place several times in a piece-meal manner and the Court
       was forced to conduct the chief-examination repeatedly because
                                                                              H
926             SUPREME COURT REPORTS                     (2016] I S.C.R.


A       of the subsequent surrender of some of the accused persons.
        While appreciating the evidence of PW I, the Courts must be
        conscious of the length of time consumed in recording the evidence
        of the prosecution witness. From a perusal of the evidence of
        PW!, the High Court was of the opinion that there were
        discrepancies and deviations in the evidence of PW!. In our
B
        considered opinion, the evidence of PW I, who is an eyewitness
        who lost three sons in the fateful incident was consistent and
        there are no major deviations or discrepancies and if at all any
      · minor discrepancies that occurred in the evidence of PW I might
        have been due to the long gap between the date of incident and
c       the long delay in examination, more so, those discrepancies are
        not material in bringing home the guilt of the accused, we find no
        reason whatsoever to disbelieve his evidence. The statements of
        PW 1 are fairly corroborated by the statements of PW 2. Hence,
        we are of the considered opinion that the occurrence had taken
        place in front of Bailhaka of PWl-Bhola Singh and he had
D
        witnessed the said occurrence along with PW-2 Baijnath and the
        injured Ganga Singh.
       ii) Similarly, we find no reason whatsoever to disbelieve the
       evidence of PW2 (brother-in-law of PWl Bhola Singh), another
       key eyewitness present at the time of incident. A valiant attempt
 E     is also made by the defence to discredit his evidence that he is
       only a chance witness and not an eyewitness to the incident and
       his presence is doubtful. But, nothing has come out in his
       examination-in-chief or in cross-examination which creates a doubt
       on the veracity of his statement. Moreover, he has been consistent
 F     in his version and fully supported the prosecution story. However,
       his admission that at the time of panchnama, he has signed as
       suggested by the Darogaji and PW I asked him as to whose names
       should be written and whose names should be left out in the
       panchnama, have to be seen in the context of preparing the
       panchnama and shall not be attributed otherwise to disbelieve his
 G     evidence.
       iii) We are of the view that the High Court, for acquitting the
       respondents, had mainly relied upon the medical evidence in a
       very inappropriate manner. When the doctor (PW 7) in his
       examination-in-chief had categorically stated that the incident could
 H
SADHU SARAN SINGH v. STATE OF U.P. AND ORS.                             927
            fN.V. RAMANA, J.l

have occurred at 8.00 a.m. which corroborated the case of the           A
informant, there was no reason to disbelieve this fact to hold that
the incident occurred between 2.00 to 4.00 a.m. merely basing on
a vague statement made by the Doctor in the cross-examination.
Also we believe that merely for the reason that no blunt injuries
were present on the deceased, the whole evidence of PW I cannot
                                                                        B
be discarded as primacy has to be given to the ocular evidence
particularly in the case of minor discrepancies. This Court in
Darbara Singh Vs. State of Pun.jab, (2012) IO SCC 476, wherein
this Court has held :
   " .••. So faras the question ofinconsistency between the medical
   evidence and the ocular evidence is concerned, the law is well       c
   settled that, unless the oral evidence available is totally
   irreconcilable with the medical evidence, the oral evidence
   would have primacy. In Ifie event of conlratlictions between
   metlical llnd ocular evidence, Ifie ocular testimony of "
   witness will /illve grellter evidentillry Vlllue vis-a-vis           D
   mediclll evidence and when medical evidence makes the oral
   testimony improbable, the same becomes a relevant factor in
   the process of evaluation of such evidence. It is only when
   tlie contrlldiction between the two is so extreme tllllt tlie
   mediclll evidence. completely rules out all possibilities of
   tlie oculllr evidence being true at llll, tllllt tlie oculllr        E
   evidence is lillble to be disbelieved."
iv) We are also of the opinion that the place of occurrence is
proved beyond doubt in the light of evidences of PW 1 (Bhola
Singh), PW 2 (Baijnath), PW 3 (Constable Ram Manohar
Maurya) and PW 4 (Riyayatullah Khan-Sub Inspector). Apart               F
from this, the investigating officer had recovered blood stained
roll of the clay and plain clay from the place of incident (Ext.Ka-
8) and also had recovered cartridges from the place of the incident.
Even as per the forensic report human blood was found on the
roll of clay (Ext.Ka-37). The aforesaid circumstance would clearly      G
establish that the place of incident was the baithka of the informant
and not the village pakvainaf as alleged by the defence.
v) Coming to the issue ofnon-examination of the injured witness
Ganga Singh, it is relevant to point out that the trial Court had
appreciated the fact that though the prosecution had made an            H
928            SUPREME cor JRT REPORTS                  (2016] i S.C.R.


A     attempt to produce Ganga Singh, they failed to do so as he was
      kidnapped at the relevant period. This stands proved by the
      registration of two Fl Rs dated 12.09.1997 and 06.10.1997 which
      establish the fact that Ganga Singh was threatened and kidnapped.
      Therefore, non-examination of injured Ganga Singh could not be
      fatal to the case of the prosecution and the same cannot be a
B
      ground to disregard the evidence of PWs I & 2. Thus, no adverse
      inference can be drawn against the prosecution for not examining
      Ganga Singh, the injured witness [Also see: Raja11 Raiv. State
      of Biliar, 2006( I ) SCC 1911.
      vi) As far as the non-examination ofany other independent witness
c     is concerned, there is no doubt that the prosecution has not been
      able to produce any independent witness. But, the prosecution
      case cannot be doubted on this ground alone. In these days,
      civilized people are generally insensitive to come forward to give
      any statement in respect of any criminal offence. Unless it is
 D    inevitable, people normally keep away from the Court as they
      feel it distressing and stressful. Though this kind of human
      behaviour is indeed unfortunate, but it is a normal phenomena. We
      cannot ignore this handicap of the investigating agency in
      discharging their duty. We cannot derail the entire case on the
      mere ground of absence of independent witness as long as the
 E    evidence of the eyewitness, though interested, is trustworthy.
       vii) It has been vehemently argued by the accused/respondents
      that the prosecution has failed to establish any motive for the
      alleged incident. However, the complainant had deposed about
      existence of land dispute between the parties and regarding the
 F    same complaints were made prior to the incident also. The Trial
      Court had held that there was land dispute between the parties
      and for the same the complainant had made complaints to the
      police (Ext. Ka-2 and Ka-3). We concur with the view of the
      Trial Court that the accused-respondents had enmity with the
 G    complainant party over a land dispute and that Ext.Ka-2 and Ka-
      3, the complaints made prior to the incident, could not be an after-
      thought as both the exhibits bear signature and dates on which
      these were received by the police. Thus, in the light of above
      discussion, it can be safely held that the accused respondents had
      strong motive to commit the offence against the complainant party.
 H
      SADHU SARAN SINGH v. STATE OF U.P. AND ORS.                               929
                  [N.V. RAMANA, J.l

      viii) The High Court, while passing the impugned judgment and             A
      order, has failed to consider that the two respondents-accused
      Ramashray Singh and Kam la Singh had not succeeded in proving
      their plea of alibi. It is evident from the letter of Ministry of
      Defence addressed to the District & Sessions Judge, Mau
      (Doc.263 Ka.) where it has been specifically mentioned that the
                                                                                B
      accused Ramashray Singh and one Vi render Singh (DW- l) had
      been directed to proceed to Secunderabad from Pathankot on
      4.9.1994. It is mentioned that on 6.10.1994 said Virender Singh
      had deposited the fused missile and Ramashray Singh accused
      respondent was not present on the said date and he presented
      himself at Secunderabad on 11.10.1994. As far as accused Kamla            c
      Singh is concerned, he had taken a plea of alibi stating that he
      was posted as a Hawaldar in Jammu. However, he has failed to
      mark any evidence in this behalf. Also it was stated by him that
      he was present at his quarter in Jammu. However, DW-4 Onkar
      Singh has stated that he, along with the accused Kamla Singh,
                                                                                D
      had gone to Vaishno Devi but fails to prove the same by adducing
      cogent evidence. Thus, on perusal of the material on record, we
      concur with the finding of the trial Court that the accused have
      failed to establish their plea of alibi.
      ix) We are also of the considered opinion that the reasons given
      by the High Comt to reverse the conviction and sentence of the            E
      accused are flimsy, untenable and bordering on perverse
      appreciation of evidence.
      x) The trial Court has awarded death sentence to Ramashraya
      Singh and Kam la Singh. On this issue, we are not able to concur
      with the view taken by the trial Court as the reasoning of the trial      F
      Court does not convince us that this is the rarest of the rare cases
      which warrants the penalty of death sentence.
       22. For the aforesaid reasons, we reach to the irresistible conclusion
that these appeals deserve to be allowed and the impugned judgment
and order has to be set aside. Accordingly, we allow these appeals by           G
setting aside the impugned judgment and order passed by the High Court
and modify the judgment and order passed by the Trial Court by convicting
all the accused respondents to life imprisonment under Section 302/149
IPC with a fine of Rs. I 0,000/-. In default, they are directed to undergo
rigorous imprisonment for six months. They are also convicted under
                                                                                H
930                   SUPREME COURT REPORTS                 (2016] I S.C.R.


A     Section 3071149 !PC and sentenced to seven years' rigorous imprisonment
      and a fine of Rs.5,000/-. In default, they shall undergo rigorous
      imprisonment for three months. Conviction under Section 148 IPC is
      also recorded against the accused respondents and they are
      sentenced to two years' rigorous imprisonment and a fine ofRs.1,000/-
      . In default, they have to undergo three months' rigorous imprisonment.
B
      All the sentences shall run concurrently.
      Kalpana K. Tripathy                                     Appeals allo\Yed.