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Madhya Pradesh High Court · body

2012 DIGILAW 63 (MP)

State of M. P. v. Than Singh

2012-01-13

G.D.SAXENA, S.K.GANGELE

body2012
JUDGMENT Saxena, J. -- 1. The State has preferred this appeal under section 378(1) of the Code of Criminal Procedure, 1973 against a judgment dated 17th January, 1998 in S.T. No.185/1988 by the Fifth Additional Sessions Judge, Bhind (M.P.), acquitting thereby all the accused-respondents of the charges of being the members of unlawful assembly for committing riots with deadly weapons, punishable under section 148 of IPC and being members of that unlawful assembly committed murder of Khacheru @ Ramadhar Singh, which is punishable under section 302/149 of IPC. 2. Brief facts, according to prosecution, which are necessary to dispose of this appeal are recapitulated as under : “On 11th September 1987, at about 9 or 9:30 a.m., in village Bharoli, District Bhind, complainant Phool Singh (PW2) accompanied with his son Khacheru @ Ramadhar Singh was going to their agricultural field Budara Kachhar. Sunder Singh (PW3), Naresh Singh (PW7) and one other, namely, Sirrotam were also going behind them. It is stated that deceased Khacheru @ Ramadhar Singh was carrying with his oxen whereas his father Phool Singh was carrying with his buffaloes. It is alleged that when the persons aforementioned reached the field of Badri Singh, they found behind the bushes, on the way, the accused Brijendra Singh with 12 bore gun, Siroman Singh with Ballam, Ram Ratan Singh with 12 bore gun, Daroga Singh with Ballam, Govind Singh with 12 bore gun, Shambhu Singh with Mauser, Murari with Ballam, Mahendra Singh with Mauser, Shriram Singh with Farsa, Shivsingh with Ballam, Mukundi Singh with Farsa, Naresh Singh with Mauser, Chand Singh with stick, Than Singh with Farsa, Lakhan Singh with Ballam, Budh Singh with Ballam and Moti Singh with stick. Seeing the deceased, all the accused came out of the bushes and surrounded him. Accused Brijendra Singh, Shambhu Singh, Ram Ratan Singh, Govind Singh, Naresh Singh and Mahendra Singh opened fire by their guns and caused firearm injuries on the head, back and other parts of the body of deceased. Resultantly, Ramadhar Singh @ Khacheru succumbed to injuries on the spot. His father Phool Singh (PW2) informed the incident to the police at Police Station Bharoli on the basis of which an FIR (Ex.P-2) was lodged at Crime No.11/87 against the accused-persons for commission of offence punishable under sections 302, 147, 148 and 149 of IPC. After lodging the report, the investigation was set in motion. His father Phool Singh (PW2) informed the incident to the police at Police Station Bharoli on the basis of which an FIR (Ex.P-2) was lodged at Crime No.11/87 against the accused-persons for commission of offence punishable under sections 302, 147, 148 and 149 of IPC. After lodging the report, the investigation was set in motion. The dead body of the deceased was sent for autopsy; case diary statements of the witnesses were recorded; accused were arrested; the weapons used in the crime were seized and sent for chemical examination to the State Forensic Science Laboratory. After completion of usual formalities, the charge-sheet was filed before the Court of Judicial Magistrate having the jurisdiction. On committal, the Sessions trial was commenced. After recording the prosecution and defence evidence, the learned trial Judge recorded acquittal vide impugned judgment which is under challenge in the present appeal by the State.” 3. The State assailed the impugned judgment of acquittal on the grounds that the trial Judge passed the judgment of acquittal against the evidence on record and the law applicable to the case. It is contended that from the evidence of eye-witnesses, the previous enmity and the motive of the crime was apparent that prior to the present incident Sughar Singh, father of accused Brijendra Singh was killed by the cousin of the deceased accompanied with complainant Phool Singh, who stood tried but after trial he was acquitted of the charges of murder. Hence, the previous enmity between the accused and complainant party was prima facie proved by the prosecution which was the motive for the accused to commit murder of Khacheru @ Ramadhar Singh. It is contended that the statements of eye-witnesses though they were relatives and interested are fully supported by the FIR lodged just after the incident vis-a-vis medical evidence, recovery of weapons of crime from the accused and also by the report of the Ballistic Expert, who examined the firearms recovered from the accused, the parts of cartridges recovered from the spot. On the basis of the above submisions, it is prayed that by allowing the appeal the judgment of acquittal may kindly be set aside and the respondents-accused be convicted and punished as per law. 4. The learned counsel appearing on behalf of respondents-accused on the other hand, supported the judgment of acquittal and contended that the prosecution utterly failed to bring home the charge against the accused. 4. The learned counsel appearing on behalf of respondents-accused on the other hand, supported the judgment of acquittal and contended that the prosecution utterly failed to bring home the charge against the accused. It is submitted that the judgment of acquittal against the respondents-accused is passed on the sound reasonings and as per the evidence of the case. Accordingly, it is prayed that by confirming the judgment of the trial Court, the appeal preferred by the State be dismissed. 5. At this stage, the learned Public Prosecutor fairly conceded that the accused-respondents though present on the spot with spears and farsas but they did not take active part in the incident as appeared from the prosecution evidence recorded by the trial Judge, hence, he does not assail their acquittal and confines his submission only with regard to accused-respondents Brijendra Singh, Mahendra Singh, Govind Singh and Ram Ratan Singh, who as per prosecution case, opened fire and caused the injuries on the body of the deceased on account of which he died. 6. Heard the learned counsel for the parties and also perused the evidence on record. 7. In view of the rival submissions of the parties, we think it proper to consider and clarify the legal position first. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extenso : “378. Appeal in case of acquittal. -- (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-section (3) and (5) : (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court, or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3) : (1) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (19) or under sub-section (2).” 8. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an appellate Court in an appeal against an order of acquittal, we have confined ourselves to one aspect only, i.e., an appeal against an order of acquittal. 9. We deem it appropriate to deal with some of the important cases which have been dealt with under the 1898 Code by the Privy Council and by the apex Court. 10. 9. We deem it appropriate to deal with some of the important cases which have been dealt with under the 1898 Code by the Privy Council and by the apex Court. 10. The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor [AIR 1934 Privy Council]. In this case, the ambit and scope of the powers of the appellate Court in dealing with an appeal against acquittal has been aptly elucidated by the Privy Council. Lord Russell writing the judgment has observed as under : “... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) 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 ...” 11. Then in the case of Surajpal Singh v. State [ AIR 1952 SC 52 ], the apex Court has spelt out the powers of the High Court. It has also cautioned the appellate Courts to follow well established norms while dealing with appeals from acquittal by the trial Court. It is observed as under : “It is well established that in an appeal under section 417 Criminal P.C., the High Court has full power to review the evidence upon which the order of acquittal was founded, but it is equally well-settled that the presumption of innocence of the accused was further reinforced by his acquittal by the trial Court, and the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.” 12. The same principle has been followed in Atley v. State of U.P. [ AIR 1955 SC 807 ], wherein it has been held : “It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial Court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well-settled that the Court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial Court continues even up to the appellate stage and that the appellate Court should attach due weight to the opinion of the trial Court which recorded the order of acquittal.” 13. In Balbir Singh v. State of Punjab [ AIR 1957 SC 216 ], the apex Court again had an occasion to examine the same proposition of law. It observed as under : “It is now well-settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and 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 must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge.” 14. A Constitution Bench of the apex Court in the case of M.G. Agarwal v. State of Maharashtra [ AIR 1963 SC 200 ], observed as under : “There is no doubt that the power conferred by clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court’s powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question.The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled for the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence ....” The test suggested by the expression : “ “Substantial and compelling reasons” should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterize the findings recorded therein as perverse. The question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case, is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial Court was erroneous. In answering this question, the Supreme Court would, no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court.” 15. In the case of Noor Khan v. State of Rajasthan [ AIR 1964 SC 286 ], relying on the principles of law enunciated by the Privy Council in Sheo Swarup (supra), it is observed thus : “Sections 417, 418 and 423 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the HighCourt should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) 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.” 16. In the case of Khedu Mohton v. State of Bihar [ (1970)2 SCC 450 ], broad guidelines have been given as to when the appellate Court could properly disturb an acquittal. The Court observed as under : “3. It is true that the powers of the High Court in considering the evidence on record in appeals under section 417, CrPC are as extensive as its powers in appeals against convictions but that Court at the same time should bear in mind the presumption of innocence of accused persons which presumption is not weakened by their acquittal. It is true that the powers of the High Court in considering the evidence on record in appeals under section 417, CrPC are as extensive as its powers in appeals against convictions but that Court at the same time should bear in mind the presumption of innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate Judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal.” (Emphasis supplied) 17. In Bishan Singh v. The State of Punjab [ (1974)3 SCC 288 ], the legal position has been provided : “22. It is well settled that the High Court in appeal under section 417 of the CrPC has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) 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.” 18. In Tota Singh v. State of Punjab [ (1987)2 SCC 529 ], the Hon’ble Supreme Court reiterated the same principle in the following words : “This Court has repeatedly pointed out that the mere fact that the appellate Court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate Court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been possibly arrived at by any Court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the Court below has taken a view which is a plausible one, the appellate Court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the Court below on its consideration of the evidence is erroenous.” (Emphasis supplied) 19. In Ram Kumar v. State of Haryana [1995 (Supp.)1 SCC 248], it had another occasion to deal with a case where the Court dealt with the powers of the High Court in appeal from acquittal. The Court observed as under : “.... the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusion under sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against the order of conviction. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusion under sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusion recorded by the trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterized as perverse.” 20. In Bhagwan Singh v. State of M.P. [ 2003(2) JLJ 369 = (2002)4 SCC 85 ], the apex Court repeated one of the fundamental principles of criminal jurisprudence that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The Court observed as under : “7. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Such is not a jurisdiction limitation on the appellate Court but a Judge made guidelines for circumspection. Such is not a jurisdiction limitation on the appellate Court but a Judge made guidelines for circumspection. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided.” 21. In State of Karnataka v. K. Gopalkrishna [ (2005)9 SCC 291 ], while dealing with an appeal against acquittal, the Court observed : “In such an appeal the appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the appellate Court will be justified in setting aside such an order of acquittal.” 22. In the case of State of Goa v. Sanjay Thakran [ (2007)3 SCC 755 ], the apex Court relied on the judgment in the case of State of Rajasthan v. Raja Ram [ (2003)8 SCC 180 ], and observed as under : “15. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted .... The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.” The Court further held as follows : “16. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference.” The Court further held as follows : “16. It is apparent that while exercising the powers in appeal against the order of acquittal the Court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower Court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the Court of appeal would not take the view which would upset the judgment delivered by the Court below.” 23. Further, in Chandrappa v. State of Karnataka [2007)4 SCC 415], this Court held : “(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, “substantial and compelling reasons”, “good and sufficient grounds”, “very strong circumstances”, “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 language” to emphasise the reluctance of an apellate 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, must bear in mind that in case of acquittal, there is double presumption in favour of the 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, the presumption of his innocence is further reinforced, re-affirmed and strengthened by the trial Court. 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, the presumption of his innocence is further reinforced, re-affirmed and strengthened by the trial Court. (5) If two reasonable conclusions are posible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” 24. Hence, the principles with regard to the scope of the powers of the appellate Court in an appeal against acquittal, are well settled. The powers of the appellate Court in an appeal against acquittal are no less than 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 erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate Court can interfere with the order of acquittal. 25. Now, we deem it appropriate to deal with the main reasons by which the trial Court was compelled to judgment of acquittal. 26. Phool Singh (PW2), father of the deceased, Sunder Singh (PW3), Naresh Singh (PW7) and Sirottam Singh were eye-witnesses to the incident of commission of murder of Khacheru @ Ramadhar Singh. So their evidence is now taken into consideration. 27. Phool Singh (PW2) stated that six years ago at about 9 a.m., his son Khacheru @ Ramadhar Singh was going to Kachar with oxen and he was also carrying his buffaloes. Sunder Singh, Naresh Singh and Sirottam Singh were coming behind them to go to their agricultural fields at Kachar. As they reached near the field of Badri Singh, they met with accused Vijendra, Mahendra, Ram Ratan Singh, Govind Singh, Budha Singh, Than Singh, Lakhan Singh, Siroman Singh, Daroga and Mukundi. He stated that accused Shambhu Singh, Naresh Singh, Ram Ratan Singh, Govind Singh, Brijendra Singh were having guns with them while rest of the persons were having spears and sticks. He stated that accused Brijendra Singh fired the bullet which hit the back of his son Khacheru. He stated that accused Shambhu Singh, Naresh Singh, Ram Ratan Singh, Govind Singh, Brijendra Singh were having guns with them while rest of the persons were having spears and sticks. He stated that accused Brijendra Singh fired the bullet which hit the back of his son Khacheru. Accused Mahendra Singh also fired which hit near the ribs of his son. Accused Ram Ratan Singh fired which hit left side of the rib. Accused Govind Singh fired a shot which hit on the ear of the deceased. He stated that rest of the accused also fired at his son causing grievous injuries to him. When he tried to save his son, the accused threatened him to kill. On his hue and cry, Babu Singh and Anand Singh also reached the spot. Thereafter, the accused fled away from the spot. After one and half hour of the incident, the witness lodged the FIR (Ex.P-2) at Police Station Bharoli. In cross-examination, he admitted that after taking Kheer and milk in the breakfast, he and his son left his house. He stated that as he reached the police station, he informed the incident to Daroga (In-charge of the police station) and Daroga told him to first inspect the spot and then lodge the report of the incident, after making an inquiry. 28. Shiv Mohan Dubey (PW12), Assistant Sub-Inspector at the relevant time was posted in the Police Station at Bharoli. He stated that on 11th September 1987 at about 11 a.m., Phool Singh, son of Vijay Singh Kushwah, lodged the report of the murder of his son Khacheru at Police Station Bharoli. Accordingly, he recorded the FIR (Ex.P-2) at the police station. On perusal of the FIR (Ex.P-2), it appears that all the accused named in the FIR were involved in the incident and accused Shambhu Singh, Naresh Singh, Ram Ratan Singh, Govind Singh, Brijendra Singh and Mahendra Singh fired by their guns and firearms injuries were caused on the head, back, near eye and face, resulting the death of his son on the spot. The motive of the incident was that Parimal Singh, the member of his family caused death of Sughar Singh, father and relative of the accused. 29. The motive of the incident was that Parimal Singh, the member of his family caused death of Sughar Singh, father and relative of the accused. 29. Sunder Singh (PW3) stated that at about five years ago in the morning at about 9 or 9:30 a.m., Khacheru @ Ramadhar Singh was going ahead to him and Phool Singh was just behind him. He and Naresh Singh were coming behind them. When they reached near the agricultural field of Badri Singh, accused Brijendra Singh, Mahendra Singh, Ramratan Singh, Govind Singh, Shambhu Singh who were hiding themselves behind the bushes, came out and attacked at Khacheru from the distance of 5-6 steps. He stated that accused Mahendra Singh fired a shot which two bullets hit on the back of Khacheru. When Khacheru fell down, accused Govind Singh, Mahendra Singh, Ram Ratan Singh and Brijendra Singh opened fire and caused injuries on his head and leg. Due to fear, the witness fled away from the place. When he returned back, he saw that injured Khacheru had died and his father Phool Singh became unconscious. On his hue and cry, Babu Singh and Anant Singh reached the spot. In cross-examination, he states that he and Phool Singh after getting consciousness went to the police station for lodging the report and the police came with them for inspecting the spot for the purpose of investigation. 30. Naresh Singh (PW7) stated that near about 5-6 years ago, on the fourth day of the month of Kwar (i.e., the month of September) at around 8 to 9 a.m., accused Brijendra Singh fired a shot at Ramadhar Singh. Then accused Ram Ratan Singh, Mahendra Singh and Govind Singh fired shots from their guns towards Ramadhar Singh @ Khacheru who fell down and died. He stated that accused Brijendra Singh, Ram Ratan Singh, Shri Ram Singh, Shiv Singh, Daroga Singh, Shavan Singh, Shambhu Singh, Murari, Chand Singh, Than Singh and Lakhan Singh were surrounding the deceased Ramadhar Singh. Thereafter, the witness went to inform about the incident to the father of the deceased who reached the spot with him. They brought the deceased to the District Hospital at Bhind. In para 3 of his statement he mentioned that from the bushes of the bank of river, the firings were made on Ramadhar Singh. He stated that Ramadhar Singh was with his oxen and going to the river bank (Kachar). They brought the deceased to the District Hospital at Bhind. In para 3 of his statement he mentioned that from the bushes of the bank of river, the firings were made on Ramadhar Singh. He stated that Ramadhar Singh was with his oxen and going to the river bank (Kachar). He, Phool Singh, Sunder Singh, Naresh Singh and Sirottam Singh were following him. He states that in the incident Ramadhar Singh firstly got bullet injury on his back and he fell down. Second bullet hit his right leg; one bullet hit his head. There were seven bullets fired out of which six bullets crossed through his body and one bullet remained inside the body. He stated that the bullet fired by accused Brijendra Singh hit on the back side of the body of deceased due to which he fell down.Taking advantage of it, by putting his leg on the body of the deceased, again the accused fired a shot which hit on the head of deceased. He stated that the bullet fired by Mahendra Singh hit and caused injury on the right leg; the bullet fired by accused Govind Singh hit and caused injury on right forearm and the bullet fired by accused Ram Ratan Singh hit and caused injury near the eye. 31. Now, on examining the motive behind the incident, it may be noticed that in cross-examination, all the above named eye-witnesses admitted that prior to the present incident, Sughar Singh, father of accused Brijendra Singh and close relative of other accused was killed by Parimal Singh, cousin of the deceased and the complainant Phool Singh and above named witnesses were involved in the murder case of Sughar Singh. Other accused were the material witnesses in that incident. On prior incident of murder of Sughar Singh, there developed a grave enmity between the accused party on one hand and the deceased and complainant party on other hand. This was the motive of the present incident. 32. Dr. S.R. Sharma (PW14) stated that on 12th September 1987, he was posted in the District Hospital Bhind. On that day, he received the dead body along with memo for post-mortem (Ex.P-21) from the Police Station Bharoli. This was the motive of the present incident. 32. Dr. S.R. Sharma (PW14) stated that on 12th September 1987, he was posted in the District Hospital Bhind. On that day, he received the dead body along with memo for post-mortem (Ex.P-21) from the Police Station Bharoli. At 7 a.m., he performed autopsy on the body of Ramadhar Singh, son of Phool Singh, resident of Village Bharoli and found that Rigor mortise was set on the dead body and food material was coming out from the mouth and nostrils of the deceased. He found following gunshot injuries : “(i) Two firearm wounds of entry rt. sie on parito-temporal region of size 5 cm. Skull bone was badly fractured and brain material was coming out; (ii) Two firearm exit wounds on left tempo parietal region of size 8 cm. Left eye was protruded out; (iii) Firearm wound on left elbow entry 7 cm. exit 15 cm. muscle burst; (iv) Multiple firearm wounds over left thigh media-lateral side size varying from 1 cm. to 3 cm.” 33. It is mentioned by the doctor that one pallet found in wound sustained on thigh by the deceased was sealed and handed over to the police for examination by the Expert. The doctor opined that the death was homicidal and it was caused due to shock and brain damage on account of firearm injuries. The said report is Ex.P-25, which was written and signed by the witness. In cross-examination, the witness admitted that all firearm injuries as mentioned by him his report were caused from the distance of more than four feet. He also admitted that on dissection, he found some food material in mouth and some digested food material in stomach. He admitted that the skull bone and the bone of left thigh were fractured. 34. Rajesh Sharma (PW11) Inspector (CID) deposed that on 12th October 1987, he was posted as In-charge of the Police Station Bharoli. During investigation of Crime No.11/87 of Police Station Bharoli, he arrested accused Than Singh, Shri Ram Singh, Lakihan Singh, Budha Singh, vide arrest memo Ex.P-18 and recovered spears and Farsas from the possession of these accused vide recovery memo Ex.P-14. On 4th November 1987, he arrested accused Brijendra Singh, Chand Singh, Siroman Singh, Mahendra Singh, Daroga Singh, Shiv Singh and prepared their arrest memo vide Ex.P-6. On 4th November 1987, he arrested accused Brijendra Singh, Chand Singh, Siroman Singh, Mahendra Singh, Daroga Singh, Shiv Singh and prepared their arrest memo vide Ex.P-6. After arrest, he recovered one twelve bore gun on production by accused Brijendra Singh and one twelve bore gun with licence and two live cartridges from accused Mahendra Singh as per the recovery memo Ex.P-7. 35. Sunderlal Kushwah (PW9), being the In-charge of the Police Station Bharoli, arrested accused Govind Singh on 3rd June, 1988 in the presence of witnesses Bhawani Singh and Sunder. He had surrendered before the Court of Judicial Magistrate. On 3rd June 1988, the accused Govind Singh informed about the gun to the police which was kept with his brother, who is in service at Abu Rajasthan. The witness stated that as no police remand for seizure of the said weapon was permitted by the Court, the weapon used in the crime could not be recovered. 36. Shiv Mohan Dubey (PW12) stated that being Assistant Sub-Inspector and posted in the Police Station Bharoli, he started the investigation and on the day of incident on the spot he, on production of seven used cartridges shown by witness Phool Singh, he seized the same vide seizure memo Ex.P-23. 37. During investigation the articles, i.e., the blood stained clothes and one pallet recovered from the dead body were sent by the doctor performing autopsy. The seized two twelve bore guns along with cartridges from the accused and seized seven caps of the fired cartridges from the spot were sent for examination by the Firearm Expert to the Forensic Science Laboratory, Sagar. In the report (Ex.P-27) of the Forearm Expert, it is opined that two twelve bore single barrel breach load guns marked as articles A-1 and A-2 were in working order and substances of firing were present in barrels of the examined guns. It is stated that all the seven caps sent for examination may be the parts of the cartridges fired by twelve bore single barrel gun, i.e., A-2 and one part of pallet (P-1) may be a part of the cartridges fired through smooth bore weapon like guns A-1 or A-2. The gunshot holes found on the Baniyan and Lungi belonging to the deceased, which were sealed and delivered by the doctor conducting post-mortem, may be produced by the entrance of bullet like (P-1). 38. The gunshot holes found on the Baniyan and Lungi belonging to the deceased, which were sealed and delivered by the doctor conducting post-mortem, may be produced by the entrance of bullet like (P-1). 38. On perusal of the prosecution evidence, it is not clear that from which of the accused the twelve bore single barrel gun article (A-2) was seized because the weapons seized were neither produced before the trial Court nor were exhibited by the eye-witnesses and the witnesses before whom the seizure was effected. 39. On detailed discussions of the deposition of the eye-witnesses, namely, Phool Singh (PW2), father of the deceased, Sunder Singh (PW3) and Naresh Singh (PW7), it is clearly evident that all the eye-witnesses were related and interested witnesses. It is also apparent that prior to the present incident of killing of Khacheru @ Ramadhar Singh, there were inimical relations between the complainant and accused named in the present incident. Therefore, in present case, the false implication of innocent persons from accused side cannot be disputed. But merely because the witnesses were closely related to the deceased persons, their testimonies cannot be doubted. In such cases, the Court has to adopt a careful approach and analyze the evidence to find out whether it is cogent and credible evidence.Therefore, in the present scenario, the evidence of Phool Singh (PW2) father of deceased, Sunder Singh (PW3) and Naresh Singh (PW7) who had the inimical terms with the accused persons on account of previous incident of killing the father of accused Brijendra Singh has to be judged with medical evidence, FIR (Ex.P-2) lodged by the complainant Phool Singh, just after the incident and the recovery of firearms with the report of the Expert as discussed above in detail. 40. As discussed, Phool Singh (PW2) stated that accused Brijendra Singh fired and bullet hit on back of Khacheru, accused Mahendra Singh fired and bullet hit on the side of ribs, accused Ram Ratan Singh fired and the bullet hit on the left back side, accused Govind Singh fired and bullet hit on upper side of ear and the other accused also fired from back side. Sunder Singh (PW3) stated that in the incident accused Brijendra Singh fired and bullet hit on the back of deceased Khacheru, accused Mahendra Singh fired two shots which bullets hit the right rib of deceased, and when deceased fell down then all the four accused Govind Singh, Mahendra Singh, Ram Ratan Singh and Brijendra Singh fired shots. Third eye-witness Naresh Singh (PW7) stated that in the incident firstly accused Brijendra Singh fired a shot on Ramadhar Singh and then accused Ram Ratan Singh, Mahendra Singh and Govind Singh fired on Ramadhar Singh @ Khacheru. The bullelts fired by the above accused hit the back, right leg, right forearm, face near eye and the scalp of the deceased. On perusal of the FIR (Ex.P-2) lodged by the complainant Phool Singh (PW2), just after the incident and written by witness Shiv Mohan Singh (PW12), ASI of the Police Station Bharoli, it goes to show that accused Brijendra Singh, Shambhu Singh, Ram Ratan Singh, Govind Singh, Naresh Singh and Mahendra Singh opened fire which bullets hit back, right leg, right forearm, face near eye and the scalp of the deceased but the evidence of Dr. S.R. Sharma (PW14), who performed post-mortem on the body of the deceased, revealed that two gun shot injuries (Entry wounds) were found on the right side of scalp and two exit wounds were found on left side of head and left eye was found protruded. One firearm wound (entry) was found on the left elbow besides multiple firearms wounds on the left thigh of the deceased. His statement clearly indicated that there was no firearm wound found on the back side or on ribs, right leg and right forearm, as narrated by the eye-witnesses mentioned above. It is true that as per the report of Firearm Expert the recovered weapon, i.e., twelve bore single barrel gun along with cartridges recovered from accused Brijendra Singh twelve bore single barrel gun along with cartridges recovered from accused Mahendra Singh were used in the incident and the seven caps of fired cartridges were said, as per the report of the Ballistic Expert, to have been fired by one twelve bore single barrel gun marked as A-2 but the guns seized from the above two accused were not produced before the learned trial Judge. Neither they were exhibited nor proved, hence, it is not clear that as to which of the gun was seized from the possession of these two accused. The above contradictions and omissions in prosecution evidence are sufficient for taking a view of acquittal. 41. We have considered the entire evidence and documents on record and the reasoning given by the trial Court for acquitting the accused. We have also dealt with a number of cases decided by the Privy Council since 1934 and of the apex Court. In the opinion of this Court the trial Court carefully scrutinized the entire evidence and documents on record and arrived at the correct conclusion. 42. The trial Court categorically came to the finding that when the substratum of the evidence of the prosecution witnesses was false, then the prosecution case has to be discarded. When the trial Court finds so many serious infirmities in the prosecution version, then it was virtually left with no choice but to give benefit of doubt to the accused according to the settled principles of criminal jurisprudence. 43. On marshalling the entire evidence and the documents on record, the view taken by the trial Court is certainly a possible and plausible view. Thus, on careful analysis of the entire evidence on record, we are of the view that the reasons given by trial Court for acquittal is not contrary to settled principles of law. We should not dispute that the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate Court should be slow to interfere with the decisions of the trial Court and an acquittal by the trial Court should not be interfered with unless it is totally perverse or wholly unsustainable. 44. On consideration of the totality of the circumstances, the appeal filed by the State is hereby dismissed. The respondents-accused be set at liberty forthwith, if not required, in any other matter. .............