LexMAHTAB SINGH & ANR. versus STATE OF U.P.
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[2009] 5 S.C.R. 848 A MAHT AB SINGH & ANR. v. STATE OF U.P. (Criminal Appeal No. 168 of 2006) B APRIL 13, 2009 [S.B. SINHA, DR. MUKUNDAKAM SHARMA AND R.M. LODHA, JJ.] Code of Criminal Procedure, 1973 - ss.378 and 386 - c Judgment of acquittal - Reversed by High Court in appeal - Propriety of- Held: On facts, not proper- Very genesis of the crime was doubtful and full of suspicion - Testimony of PWs did not conform with collateral circumstances and probabi/11ies - PWs were also interested witnesses - False implication of D accused was not ruled out - Important witness though available was not examined - Trial court had meticulously examined the entire evidence on record and concluded that prosecution failed to prove charges against accused beyond reasonable doubt - View taken by trial court was possible as E well as plausible - High Court erred in reversing the judgment of acquittal recorded by trial court - Penal Code, 1860 - s. 302 rlw s.34-Arms Act, 1959 - ss. 4 and 25. According to the prosecution, at 9 pm in the night, F while returning from the betel shop of one 'R', PW1 and -- his brother met appellant no.1 and his son appellant no.2, whereupon PW1 's brother demanded money owed to him by appellant no.1 but the latter started rebuking PW1 's brother and asked appellant no.2 to kill him, and that thereafter appellant no.2 caught hold of PW1 's brother G while appellant no.1 stabbed him with a knife due to which PW1 's brother fell down and subsequently died at the hospital. The appellants were charge-sheeted under s.302 rl H 848 MAHTAB SINGH & ANR. v. STATE OF U.P. 849 w s.34 IPC and under s.4 r/w s.25 of the Arms Act, 1959 A but the Trial Court acquitted them holding that the prosecution had failed to prove the charges against them beyond reasonable doubt. On appeal, the High Court set aside the judgment of acquittal and convicted the appellants under s.302 r/w s.34 . IPC with life B imprisonment. Appellant no.1 was also convicted under s.4 r/w s.25 of the Arms Act, 1959. Hence the present appeal. Allowing the appeal, the Court c HELD:1.1. PW-1 has admitted in his deposition that R's shop was hardly 2-3 steps away from the place of occurrence. But strangely, despite availability, R's statement was neither recorded under Section 161 Cr.P.C. nor he was tendered in examination before the Court. D According to prosecution case, a lantern was burning at R's shop and it was from the light of that lantern that PW- 1 and PW-2 could see the culprits. The Investigating Officer (PW-6), even did not seize the lantern from R's shop. The omission on the part of PW-6 in not recording E the statement of 'R' and not seizing the lantern from his shop is not innocuous; rather the very genesis of the crime has been rendered doubtful and full of suspicion. The trial court considered this aspect as one of the main reasons in not believing the prosecution case and F acquitted the accused. However, the High Court ignored and overlooked this aspect altogether. Non-examination of 'R' in the circumstances is destructive of the substratum of the prosecution story. [Para 10] [858-C-F] 1.2. The High Court failed to consider a very material G aspect that despite the fact that police station was situated close and visible from the place of incident, yet PW-1 did not go immediately to police station to report but he first went to have a written report prepared and then went to the police station with written report. The H 850 SUPREME COURT REPORTS [2009] 5 S.C.R. A first version of the incident could have been reported at the police station within five minutes of its occurrence. The fact that PW-1 took 45 minutes in reporting the incident at the police station rather creates doubt about the truthfulness of the prosecution case and does not rule B out false implication of the accused against whom PW-1 had grudge due to some civil dispute between them. [Para 11] [858-G-H; 859-A-B] 1.3. The evidence of PW-1 about sufficient light from the electric pole and from the lantern at Balbir's shop is C again highly doubtful. The Investigating Officer (PW-6) in his testimony stated that neither in FIR nor in his statement PW-1 told him about the electric pole at the place of incident. PW-6 admitted that electric pole has not been shown in sketch prepared by him. About the light D from the lantern at the shop of Balbir, although the said lantern is said to have been
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