TMI Blog2009 (4) TMI 834X X X X Extracts X X X X X X X X Extracts X X X X ..... .P.C. and sentenced them to life imprisonment. Accused Mahtab Singh was found guilty of an offence under Section 4/25 Arms Act, 1959 as well and sentenced to six months rigorous imprisonment on this count. Aggrieved, the accused are in appeal by special leave. 2. Briefly put, the prosecution case is : Ganga Singh (deceased) and his brother Vinod (PW 1) owned a small Flour Mill at village Kampil. On September 28, 1990 at 9.00P.M., while returning from the betel shop of Rajveer after purchasing bidi, a few steps away, at Tiraha (junction of three roads), Mahtab Singh (A-1) and Jaipal (A-2) - father and son - met him. Ganga Singh demanded money due from Mahtab Singh. Mahtab Singh, however, rebuked him. Ganga Singh asked Mahtab Singh as to why he was rebuking when money was due and payable by him. Hearing this, Mahtab Singh asked his son Jaipal to catch and kill Ganga Singh. Jaipal caught hold of Ganga Singh; Mahtab Singh gave a knife blow to Ganga Singh due to which Ganga Singh fell down. Vinod (PW-1) and Ratiram (PW-2) who were sitting under the thatched roof near Flour Mill and one Asarfilal rushed towards the spot. On seeing them, Mahtab Singh and Jaipal ran away. Ganga Singh was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... idence much less reliable evidence of burning lantern and light from the electric bulb was produced. No evidence that it was moonlit night. (iv) Rajveer from whose shop Ganga Singh purchased bidi has not been examined by prosecution; even his statement under Section 161 Cr.P.C. was not recorded. The burning lantern from his shop was not seized by the investigating officer. (v) The lantern which was seized from the shop of Balbir was not produced before the Court. (vi) The presence of PW-2 was highly unnatural. He is resident of Nagala Kulu. His statement that he came to Ganga Singh's Flour Mill for grinding at night (9.00 P.M.) does not inspire confidence as the Flour Mill is situated in different village. His conduct of leaving the place of occurrence immediately after the incident makes his presence at the time of incident highly doubtful. PW-2 neither accompanied Ganga Singh to the Primary Health Centre nor accompanied PW-1 to the police station. (vii) Asarfilal who was present at the time of incident and who accompanied Ganga Singh to Primary Health Centre has not been examined although his statement u/s 161 Cr.P.C. was recorded. (viii) The r ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... stimony of PW-4, it can reasonably be held that death of Ganga Singh was homicidal. 10. The incident occurred on September 28, 1990 at 9.00 P.M. Ganga Singh (deceased) had gone to betel shop of Rajveer to purchase bidi. While he was returning, only few steps away, the incident is said to have occurred. As a matter of fact, PW-1 has admitted in his deposition that Rajveer's shop was hardly 2-3 steps away from the place of occurrence. But strangely, despite availability, Rajveer's statement was neither recorded under Section 161 Cr.P.C. nor he was tendered in examination before the Court. According to prosecution case, a lantern was burning at Rajveer'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 Rajveer's shop. The omission on the part of PW 6 in not recording the statement of Rajveer 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 acquitted the accused. However, ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ake the trustworthiness of this witness. 13. The evidence of PW-2 is no better. His very presence at the time of incident is not only doubtful but also highly unnatural. He is not the resident of Village Kampil where the incident occurred; he resides at Village Kullu Nagla. It does not stand to reason that in the night at about 9.00 P.M. he would bring his foodgrain for grinding. He was unable to tell how much foodgrain he had brought for grinding. The most surprising aspect is that although he claims to have been present at the time of incident, he neither went along with Ganga Singh when he was taken to Kayam Ganj Primary Health Centre after the incident nor he accompanied PW-1 to police station for lodging the report. He left the place of occurrence within 10 minutes of the incident for his village. The version of PW-1 and PW-2, insofar as infliction of knife injury by Mahtab Singh to deceased Ganga Singh is concerned, is also not uniform. PW-1 in his deposition stated that Mahtab Singh stabbed Ganga Singh from the back side while the version of PW-2 is that Mahtab Singh inflicted knife injury to Ganga Singh from the front. Pertinently, PW-2 is also co-brother of Ganga Singh. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... scope of exercise of power by appellate Court against judgment of acquittal under Sections 378 and 386 Cr.P.C., considered a long line of cases viz., Sheo Swarup v. King Emperor AIR 1934 PC 227; Surajpal Singh v. State AIR 1952 SC 52; Tulsiram Kanu v. State AIR 1954 SC 1; Madan Mohan Singh v. State of U.P. AIR 1954 SC 637; Atley v. State of U.P. AIR 1955 SC 807; Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217; M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200; Noor Khan v. State of Rajasthan AIR 1964 SC 286; Khedu Mohton v. State of Bihar (1970) 2 SCC 450; Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793; Lekha Yadav v. State of Bihar (1973) 2 SCC 424; Bishan Singh v. State of Punjab (1974) 3 SCC 288; Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC 228; Tota Singh v. State of Punjab (1987) 2 SCC 529; Ram Kumar v. State of Haryana(1995) Supp.(1) SCC 248; Bhagwan Singh v. State of M.P. (2002) 4 SCC 85; C. Antony v. K.G. Raghavan Nair (2003) 1 SCC 1; State of Karnataka v. K. Gopalakarishna (2005) 9 SCC 291; State of Goa v. Sanjay Thakran (2007) 3 SCC 755; and culled out the following principles: 1. The appellate court may review the evidence in appeals ..... X X X X Extracts X X X X X X X X Extracts X X X X
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