STATE OF UTTAR PRADESHversusOM PAL & ORS.

96                       [2018]
              SUPREME COURT     3 S.C.R. 96
                            REPORTS                       [2018] 3 S.C.R.


A                      STATE OF UTTAR PRADESH
                                       v.
                              OM PAL & ORS.
                     (Criminal Appeal No. 1213 of 2014)
B
                               MARCH 21, 2018
             [N. V. RAMANA AND S. ABDUL NAZEER, JJ.]
            Penal Code, 1860:
C
           s. 302/34 – Prosecution under – Of respondents-accused –
     Conviction by trial court relying on the evidence of two eye-witnesses
     and the complainant – Acquittal by High Court disbelieving the
     witnesses – On appeal, held: High Court while appreciating the
     evidence rightly disbelieved the presence of the eye-witnesses in
D    view of their unnatural behaviour and their contradictory statements
     – FIR was lodged by the complainant on the basis of information of
     one of the eye-witnesses – When the evidence of eye-witness is not
     believable, evidence of complainant cannot be given credence –
     Prosecution thus failed to prove the guilt of the accused beyond
     reasonable doubt – Acquittal giving benefit of doubt is justified.
E
           Dismissing the appeal, the Court
            HELD: 1. Admittedly, the complainant-PW1 has not
     witnessed the occurrence. He believed whatever PW-2 (eye-
     witness) informed him and accordingly he lodged the complaint.
F    It is also indisputable that PW1 was inimical with the respondent
     party. It is evident from the record that on the aspect of how
     PW1 came to know about the incident, he made contradictory
     statements. There was no independent witness and according to
     prosecution, despite the efforts made by police to record
G    statements from the public, no one was ready to give evidence.
     As per the statement of PW1, besides PWs 2 and 3, two more
     persons have also witnessed the incident. It is quite unnatural
     that none of the eye-witnesses has lodged complaint, but on the
     basis of information provided by PW2, PW1 lodged the complaint
     believing his version. [Para 10] [100-E-G]
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                                     96
       STATE OF UTTAR PRADESH v. OM PAL & ORS.                            97


      2. On the other hand, the conduct and statements of PW2             A
do not inspire confidence for the reason that his depositions under
Section 161, Cr.P.C. were quite different to what he stated before
Court in his examination-in-chief. He could not even give a
satisfactory reason for his presence at the time and place of
occurrence. Furthermore, he did not choose to lodge complaint
                                                                          B
with the police by himself even though he had witnessed the
occurrence as admittedly the complaint was lodged by PW1 on
the information provided by PW2. Apart from that, there were
certain conflicting statements in his evidence as regards how the
deceased got injuries, and also his conduct of not making a hue
and cry and not disclosing to anyone about the occurrence. This           C
gives rise to suspicion on the credibility and trustworthiness of
PW2. When the evidence of PW2 itself is unbelievable and
jeopardizing the prosecution case, in no manner the evidence of
PW1 could be given credence. [Para 11] [100-H; 101-A-C]
      3. The conduct of PW3 - wife of the deceased, who was               D
stated to be in a shock and not in consciousness for about a month
after the death of her husband is also not believable. There is no
valid documentary or medical evidence on record in support of
the claim of prosecution. Looking at the unnatural behavior of
eye-witnesses, PWs 2 and 3 and their contradictory statements,
it cannot be said that their evidences are genuine so as to convict       E
the accused. [Para 12] [101-D]
      4. The High Court, while appreciating the evidence of the
three important witnesses i.e. PWs 1, 2 and 3, rightly disbelieved
the presence of PWs 2 and 3 at the place of occurrence and
discredited the evidence of P.W.1 - complainant. Undoubtedly,             F
the prosecution in its effort to establish the case with the support
of evidences of PWs 1, 2 and 3, has miserably failed to prove the
guilt of the accused beyond reasonable doubt. [Para 14]
[101-G-H]
      CRIMINAL APPELLATE JURISDICTION : Criminal Appeal                   G
No. 1213 of 2014
      From the Judgment and Order dated 06.04.2007 of the High Court
of Judicature at Allahabad in Criminal Appeal No. 2622 of 2005.
      V. V. V. Pattabhiram, Sanjay Kumar Tyagi, Advs for the Appellant.
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98            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A            B. P. Gupta, (AC), K. S. Rana, Advs for the Respondents.
             The Judgment of the Court was delivered by
             N.V. RAMANA, J. 1. This appeal by way of special leave
     petition is filed by the State of Uttar Pradesh against the final judgment
     and order dated 6th April, 2007 passed by the High Court of Judicature
B    at Allahabad in Criminal Appeal No. 2622 of 2005. By the said judgment,
     the High Court has acquitted the respondents who were accused in
     Sessions Trial No.1090 of 2003 before the District Court, Ghaziabad,
     Uttar Pradesh.
             2. The prosecution case, in brief, is that on 25-3-1993 at about
C    9.00 a.m. Mahipal (deceased) and his wife Prakashee (PW3) were going
     to their fields on a buffalo cart and Tej Pal, Ram Swaroop and Dharmendra
     (PW2) were following them. While they were on their way, the three
     accused (respondents herein) appeared out of a sugercane filed near
     the fields of one Alias, while hurling abuses against Mahipal fired at him.
     The fire opened by Om Pal was missed but the fire opened by Mukhtiar
D    hit Mahipal. Navin assaulted Mahipal with the butt of the Tamancha on
     his head. On receiving information from Dharmendra (PW2) about the
     incident, Naresh (PW1) accompanied by Dharmendra took the injured
     Mahipal to the police station, Babugarh and lodged FIR. Thereafter, on
     the way to hospital, Mahipal succumbed to the injuries.
E            3. The Investigating Officer, Sub-Inspector R.K. Chaudhary
     (PW6) carried the investigation, recorded statements, prepared site plan
     (Ext. Ka-3), collected plain earth as well as blood stained earth from the
     place of occurrence and after conducting inquest at the hospital, sent
     the dead body for postmortem. The accused Mukhtiar was arrested on
     29.3.1993 near village Bacchrota and from his possession one illegal
F    pistol of 315 bore and one ammunition cartridge (Ext.K.13) were
     recovered. On 8th April, 1993 the I.O. recorded the statements of other
     accused Omal and Navin. A Tamancha, allegedly used in the crime, was
     later recovered at the instance of accused Ompal on 14.4.1993. The
     statement of the wife of deceased (PW3) was recorded on 24.4.1993.
G    After concluding the investigation, the Judicial Magistrate, Hapur
     committed the case to the Court of Sessions where charges were framed
     under Section 302, IPC read with Section 34, IPC against all the three
     accused and additionally charges were framed against accused Mukhtiar
     under Section 25 of the Arms Act. The accused pleaded not guilty and
     claimed to be tried.
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        STATE OF UTTAR PRADESH v. OM PAL & ORS.                              99
                    [N.V. RAMANA, J.]

       4. At the trial, the prosecution mainly relied on the evidences of    A
complainant—Naresh Pal (PW1) and eyewitnesses Dharmendra (PW2)
and Prakashee (PW3), wife of the deceased. The motive for committing
the crime was said to be that there was enmity between the parties as
about three years before the date of occurrence, accused Mukhtiar was
shot at and in that regard a case was in progress at Hapur Court in
                                                                             B
which Mahipal (PW1) was accused. P.W. 4—Pratap Singh was
examined as a witness to prove the conspiracy. P.W.5 is Dr. Hari Kishan
Agarwal, who had conducted the post mortem of deceased Mahipal.
P.W. 6 S.I. R.K. Chaudhary—I.O. and P.W. 7— Paltoo Ram, Head
Constable are the formal witness. At the end of the trial, the Trial Court
came to the conclusion that the prosecution has successfully proved the      C
guilt of the accused. Accordingly, the accused were convicted under
Section 302 read with 34, IPC and sentenced to suffer life imprisonment
and to pay a fine of Rs. 5,000/- each and in default thereof, to further
suffer six months rigorous imprisonment.
       5. The trial Court’s judgment awarding conviction and sentence        D
has been assailed by the accused by way of criminal appeal before the
High Court. On appreciation of the material placed before it, the High
Court recorded its finding that the prosecution witnesses, on whose
evidence the trial Court has relied on, are not reliable. Accordingly, the
High Court set aside the judgment of the trial Court and acquitted all the
three accused. Dissatisfied with the acquittal order passed by the High      E
Court, the State of Uttar Pradesh has preferred the present appeal before
this Court.
      6. We have heard the learned counsel appearing on behalf of the
appellant and the learned Amicus Curiae appearing on behalf of the
respondents.                                                                 F
       7. Learned counsel for the State vehemently contended the
impugned order and submitted that the High Court has failed to appreciate
the factum of presence of two eyewitnesses PWs 2 and 3 at the spot,
who deposed in clear terms the way in which the accused carried the
assault on the deceased resulting in his death. The injuries on the body     G
of the deceased fully corroborates the prosecution case and the medical
evidence also supports the case of prosecution, but the High Court has,
by setting aside the well reasoned judgment rendered by the trial Court,
committed a grave error of law calling for this Court’s interference.
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100            SUPREME COURT REPORTS                           [2018] 3 S.C.R.


A            8. Learned Amicus Curiae, however, supported the view taken
      by the High Court and submitted that there is no need for this Court to
      interfere with the order of acquittal passed by the High Court.
             9. Having heard learned counsel on either side, we have given
      our thoughtful consideration to the facts and circumstances of the case
B     in the light of material placed before us. It appears that the trial Court
      based its judgment mainly relying upon the evidences of three prosecution
      witness i.e. P.W.1—Naresh Pal, the complainant, PW2—Dharmendra,
      an eyewitness and PW3—Prakashee, another eyewitness and wife of
      the deceased. However, in the view expressed by the High Court, the
      aforesaid witnesses are not credible. Since the entire prosecution case
C     hinges on the depositions of these three witnesses, it is imperative for
      the Court to scrutinize their evidences properly so as to sift the chaff
      from the grain and find out the truth. In that pursuit, their evidences are
      to be considered from the point of view of credibility and trustworthiness.
      Once the same stands satisfied, it ought to inspire confidence in the
D     mind of the Court to accept the stated evidence.
             10. Admittedly, the complainant—PW1 has not witnessed the
      occurrence. He believed whatever Dharmendra (PW2) informed him
      and accordingly he lodged the complaint. It is also indisputable that PW1
      was inimical with the respondent party. There was also a criminal case
E     pending in Hapur Court relating to an incident of firing at the accused, in
      which the deceased as well as PW1 were accused and Respondent
      No.3 herein was the victim. It is evident from the record that on the
      aspect of how PW1 came to know about the incident, he made
      contradictory statements. There was no independent witness and
      according to prosecution, despite the efforts made by police to record
F     statements from the public, no one was ready to give evidence. As per
      the statement of PW1, besides PWs 2 & 3, two more persons Tej Pal
      and Ram Swaroop have also witnessed the incident. It is quite unnatural
      that none of the eyewitnesses has lodged complaint, but on the basis of
      information provided by Dharmendra (PW2), PW1 lodged the complaint
G     believing the version of Dharmendra.
            11. On the other hand, the conduct and statements of PW2
      (Dharmendra) who was stated to be an eyewitness do not inspire
      confidence for the reason that his depositions under Section 161, Cr.P.C.
      were quite different to what he stated before Court in his examination-
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        STATE OF UTTAR PRADESH v. OM PAL & ORS.                                 101
                    [N.V. RAMANA, J.]

in-chief. He could not even give a satisfactory reason for his presence         A
at the time and place of occurrence. Furthermore, he did not choose to
lodge complaint with the police by himself even though he had witnessed
the occurrence as admittedly the complaint was lodged by PW1 on the
information provided by PW2. Apart from that, there were certain
conflicting statements in his evidence as regards how the deceased got
                                                                                B
injuries, and also his conduct of not making a hue and cry and not disclosing
to anyone about the occurrence on his way to the house of Naresh Pal,
gives rise to suspicion on the credibility and trustworthiness of PW2.
When the evidence of PW2 itself is unbelievable and jeopardizing the
prosecution case, in no manner the evidence of PW1 could be given
credence.                                                                       C
       12. We are also not inclined to believe the conduct of PW3—wife
of the deceased, who was stated to be in a shock and not in consciousness
for about a month after the death of her husband. We find no valid
documentary or medical evidence on record in support of the claim of
prosecution that PW3 was really in such unconscious state for about a           D
month. Looking at the unnatural behavior of eyewitnesses PWs 2 & 3
and their contradictory statements, it cannot be said that their evidences
are genuine so as to convict the accused.
        13. Also there were some notable flaws in the prosecution case
which cannot be ignored. According to PW4 (Pratap Singh), on the                E
previous night of the incident, he along with one Jakar (not examined)
heard the accused hatching conspiracy to murder the deceased, but the
prosecution did not present Jakar as a witness. It is incredible on the
part of PW4 that despite knowing about the conspiracy, he did not reveal
it to the victim party so as to save the life of the deceased. The trial
Court also disbelieved his evidence.                                            F

       14. The High Court, while appreciating the evidence of the three
important witnesses i.e. PWs 1, 2 and 3, rightly disbelieved the presence
of PWs 2 and 3 at the place of occurrence and discredited the evidence
of P.W.1—complainant. Undoubtedly, the prosecution in its effort to
establish the case with the support of evidences of PWs 1, 2 and 3, has         G
miserably failed to prove the guilt of the accused beyond reasonable
doubt. The High Court has, therefore, committed no illegality or manifest
error in acquitting the accused giving them the benefit of doubt, under
the circumstances. We express our concurrence with the findings recorded
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102             SUPREME COURT REPORTS                         [2018] 3 S.C.R.


A     by the High Court for acquitting the respondents. For the aforesaid
      reasoning, we do not find any merit in this appeal calling for our
      interference under Article 136 of the Constitution.
            15. Accordingly, the Criminal Appeal filed by the appellant – State
      of U.P. is dismissed.
B
      Kalpana K. Tripathy                                       Appeal dismissed.




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