State Of Uttar Pradesh vs Shiv Narayan Singh And Another
2022 Latest Caselaw 4367 ALL

HIGH COURT OF JUDICATURE AT ALLAHABAD
 
 

A.F.R.
 
Judgment reserved on 08.03.2022
 
Judgment delivered on 27-05-2022
 
Court No. - 43
 

 
Case :- GOVERNMENT APPEAL No. - 2239 of 2009 
 

 
Appellant :- State of Uttar Pradesh 
 
Respondent :- Shiv Narayan Singh And Another 
 
Counsel for Appellant :- Desh Ratan Chaudhary, AGA, R.K.Vaish 
 
Counsel for Respondent :- Lalit Kumar Misra, Sanjay Kumar Rajput, V. S. Parmar, Vivek Singh 
 
And
 
Case :- CRIMINAL REVISION No. - 3459 of 2008 
 
Petitioner :- Shyam Singh @ Pappu 
 
Respondent :- State Of U. P. & Others 
 
Petitioner Counsel :- M. A. Mishra 
 
Respondent Counsel :- Govt. Advocate
 
Hon'ble Vivek Kumar Birla, J. 

Hon'ble Subhash Vidyarthi, J.

(Delivered by Hon'ble Subhash Vidyarthi, J.)

1. Government Appeal No. 2239 of 2009 has been filed by the State-appellant challenging the judgment and order dated 16.09.2008 passed by the learned Additional District and Sessions Judge, Court No. 1, Hamirpur in Sessions Trial No. 137 of 2005 arising out of Case Crime No. 22 of 2005 under Sections 302/34, 504, 506 IPC, Police Station Rath, District Hamirpur whereby both the accused-respondents have been acquitted of all the charges.

2. The aforesaid judgment and order dated 16.09.2008 has been assailed by the informant of the case Shyam Singh @ Pappu also by filing Criminal Revision No. 3459 of 2008, and by means of an order dated 19-09-2011, the aforesaid Criminal Revision was connected with Govt. Appeal No. 2239 of 2009.

3. Government Appeal No. 2239 of 2009 filed by the State-appellant has been admitted by means of an order dated 04.11.2011.

4. As both the aforesaid cases have been filed challenging the judgment and order dated 16.09.2008, both the cases are being decided by a common judgment.

Prosecution Case

5. Briefly stated, the prosecution case is that on 28.01.2005, the informant Shyam Singh @ Pappu gave a written report at Police Station Rath, stating that a dispute had arisen in his village Nandana between Shiv Kumar and his brother Shiv Narayan, for fixing a gate on a land which belongs to Shiv Narayan. On 28.01.2005 at about 12:00 noon Shiv Kumar asked the Shiv Narayan that he had given an application to the Police regarding the gate put up by the latter and he should stop the work and resume the same only after the Police makes an enquiry. Upon this, Shiv Narayan (the accused-respondent No. 1) and his son Pradeep (the accused-respondent No. 2) started hurling abuses. The informant and his father, who was standing with Shiv Kumar in front of his house, forbade them from doing so. Pradeep shouted from upstairs that all the persons had come for doing a panchayat, shoot them. Upon this Shiv Narayan fired a shot from his licensed double barrel gun which hit the informant's father (Jaswant) in his chest and face. In order to save his life, the informant pulled his father inside the house of Shiv Kumar, but his father died immediately due to the gun-shot injury. The accused-respondents threatened that in case any person lodged a report or gave evidence, he would also be killed and both the accused persons ran away. Shiv Narayan was carrying a double barrel gun and Pradeep was carrying a single barrel gun. The incident was witnessed by Shyam Singh @ Pappu, Shiv Pal Singh son of Badri Prasad, Surjan Singh and the mother of Shyam Singh. Immediately after the incident, Head Constable Chandrabhan and a Constable Raj Singh had reached the village and they got engaged in search of the accused-respondents.

6. Upon the aforesaid written information, a Case Crime No. 22 of 2005 under Sections 302/34, 504, 506 IPC was registered in Police Station Rath at 12:45 p.m. on 28.01.2005.

7. A Sub-Inspector reached the spot of occurrence and prepared an inquest report (Ex.A-5), in which he recorded that the dead body had injury marks on the right side of its face and there was no other apparent injury. However, after writing the inquest report, a line has been inserted in between two lines, stating that the dead body had pellet injuries on its chest in an area of 30 c.m. x 30 c.m. The I.O. collected the clothes worn by the deceased and the samples of blood stained, as well as unstained pieces of cemented floor from inside the house of Shiv Kumar, where the dead body of the deceased was lying. He also recovered an empty cartridge which was lying near the channel gate on the upper floor of the house of the accused Shiv Narayan. The Investigating Officer prepared a site plan, conducted investigation and submitted a charge sheet in the Court, on the basis whereof the accused - respondents were tried for committing offences under Section 302/34, 504 and 506 I.P.C..

Prosecution Evidence

8. During the trial, the prosecution examined the informant Shyam Singh @ Pappu as PW-1, eye-witness Shiv Kumar as PW-2, Head Constable Chandrabhan as PW-3, Dr. R.K. Mishra as PW-4, Head Constable Suresh Kumar as PW-5, S.I. Mohan Lal and PW-6 and Sub Inspector Radhey Shayam Trivedi as PW-7.

9. PW-1 Shyam Singh (the informant) stated that on the date of the incident at about 12 noon, he was standing in front of his house, which is opposite the house of Shiv Kumar. Shiv Kumar was also standing outside his house. The informant's father was standing about 6 feet away from Shiv Kumar. The house of the accused persons Shiv Narayan and Pradeep, who are father and son, is about 6-7 steps away from the informant's home. Shiv Kumar is the brother of Shiv Narayan. There is a platform measuring about 30 ft. x 10 ft. in front of the house of Shiv Narayan. Earlier this platform was jointly owned by all the persons. About 10 years ago, a portion of the platform measuring 10 ft. x 10 ft. was given to Shiv Narayan. On the date of the incident Shiv Narayan was putting up a gate by encroaching upon an area in excess of his portion of the platform. The informant's father Jaswant and Shiv Kumar had restrained him from putting up the gate. At that time, Pradeep and Shiv Narayan were standing inside the channel gate at the first floor of their house. Referring to the informant's father and Shiv Kumar, the accused-respondent no. 2 Pradeep exhorted to the accused--respondent no. 1 Shiv Narayan that "bade panch bante hain, goli maar do" meaning that the aforesaid persons were acting as panchs (arbitrators) and he should shoot them. Upon this Shiv Narayan fired a shot from his double barrel gun aimed at the informants' father and the pellets hit his chest and the face. Pradeep was also having a single barrel gun. Upon being shot, the informant's father fell down and he was taken inside Shiv Kumar's house but as soon as he was taken inside the house, he died.

10. PW 1 further stated that information of the incident was given to P.S. Kotwali Rath through the mobile telephone of Shiv Kumar. As a written information of an apprehended breach of peace due to the aforesaid dispute had already been given at the Police Station in the morning of the same day, Head Constable Chandra Bhan Singh (PW-3) and Constable Raj Singh reached the place of occurrence to carry out an enquiry on the aforesaid information within 5 - 7 minutes of the death of the informant's father. Afterwards, the Police went in search of the accused persons and the informant dictated a report of the incident which was scribed by Shiv Kumar.

11. In his cross-examination, PW 1 stated that Ram Sewak was his Grand-father. Maheshwari was Ram Sewak's brother. Shiv Narayan and Shiv Kumar are sons of Maheshwari. Pradeep is son of Shiv Narayan. He also stated that the accused Shiv Narayan has a pucca double storied house opposite the residential house of the witness, which is used as the guest house of Shiv Narayan. There is a public passage between the two houses, which is about 5 feet wide and thereafter he said that the passage is 6 - 7 steps wide. He also stated that he did not see as to whether any blood fell at the place where his father had received the gun-shot. He had shown to the I.O. the place where his father was shot and where he fell down. The I.O. had taken samples of plain soil and blood stained soil from that place. Prior to the incident, his family members and the members of the family of Shiv Kumar used to visit each other's home but this had stopped since about 3 - 4 months before the incident, as the relations of his father and Shiv Narayan had turned bad and they and their family members were not at talking terms.

12. PW 1 further stated in his cross examination that his father had come out of his house about half an hour before the incident, i.e., he had come out of the house at about 11:30 a.m. After having a light meal in the house, he came out and sat in the sun-light. He had got the report scribed by Shiv Kumar in the village and before scribing the report, at his instruction, Shiv Kumar had sent telephonic information of the incident to the Police Station. He had gone to the Police Station on the motor cycle of Surjan Singh and it took about 10 minutes to reach the Police Station. The I.O. and other Police persons had gone to the place of incident with the informant. The informant did not go with the I.O. inside the house of Shiv Narayan. The I.O. had entered Shiv Narayan's house accompanied by the constables and no villager had entered the house with him. The I.O. had brought an empty cartridge from Shiv Narayan's house.

13. PW 1 was confronted with his affidavit dated 27-05-2005 (Exhibit B-1) in paragraph 6 whereof it was written that "the procedure adopted by the Police in respect of empty cartridge was a step for providing benefit to the accused" and he stated that he had signed it without reading and it was not prepared under his instructions.

14. PW 1 further stated that about 10 minutes after the incident, when he was getting the report of the incident scribed, Chandra Bhan Singh and Raj Singh had come from the Police Station to the place of incident. They had come on a motor cycle, they had a look at the place of the incident, stayed there about 1 - 1½ minute and went in search of the accused persons.

15. He also stated that he, his father and Shiv Kumar were standing near each other. Shiv Narayan had fired the shot towards them, which hit his father. Only Shiv Narayan would have known as to which of the three persons he wanted to kill.

16. PW-2 Shiv Kumar stated that on 28.01.2005 at about 10:00 a.m. he had gone from his village Nandana to Police Station Rath to give a written application regarding an iron gate being put up by the accused Shiv Narayan on the platform. He came back to his home at about 11 a.m. At about 12:00 noon he was standing outside his house. Jaswant Singh (deceased) and his son Shyam Singh were standing near PW-2. The accused-respondents Shiv Narayan and Pradeep Kumar were standing at Channel gate at "Doosri Manzil" of their house. PW-2 said to Shiv Narayan that he has given a report in the Police Station and till the Police made an enquiry, he should not raise any construction. The accused Shiv Narayan is the elder brother of PW-2 Shiv Kumar and at that time Shiv Kumar was carrying his licensed double barrel gun and Pradeep was carrying an unlicensed single barrel gun. Upon hearing about the report given by PW 2 to the Police, Shiv Narayan and Pradeep got enraged and started hurling abuses. Jaswant forbade the accused-respondents from abusing. Being annoyed by it, the accused Pradeep said to his father Shiv Narayan that these people had come to do a panchayat, shoot them. Shiv Narayan fired a shot from the gun being carried by him and the pellets from the gun-shot hit the chest and lips of Jaswant. Jaswant was taken inside the house of PW-2 with the intention to save him but upon being taken inside, they came to know that Jaswant had died immediately upon being shot. The incident of Jaswant being shot by Shiv Narayan was witnessed by Jaswant's wife Gyan Devi, his brother Shivpal Singh, Jaswant's nephew Surjan Singh and some other persons. The accused persons came out of their house through the stairs and they walked away threatening that in case any person lodged a report or gave evidence, he will also be killed. PW 2 stated that he had scribed the report upon dictation of PW-1 Shyam Singh.

17. In his cross examination, PW-2 stated that his residential house in the village has two entrances - one towards the East and the other towards the South. Eastern entrance faces the disputed platform. The distance between the platform and this entrance is about 4-5 steps. This distance in between is in the form of a public passage. Two days before the incident, father of PW-2 and Jaswant had forbidden Shiv Narayan from putting up a gate on the platform. He stated that in front of his house there is a double storied "Baithaka" (Guest House) of Shiv Narayan, which was given to Shiv Narayan in partition. In the South of this guest house and towards the East of Jaswant's house there is the residential house of the accused persons. Shiv Narayan does not have any other residential house in the village. At the time of the incident, PW-2 was standing 4-5 steps away from the main door of his house, towards the North, on the platform. This is the main entrance of the house and it faces the East. The disputed platform is about 5-6 steps away from this platform. Jaswant was standing 4-5 steps away from PW-2 in the passage, below the platform. He was hit by the gun-shot at the place where he was standing and upon being hit, he fell down at the same place. The Investigating Officer did not collect any blood sample from the place where Jaswant had fallen down, as he could not find any blood there. He had collected samples of blood stained flooring and plain flooring from inside the house.

18. PW-2 further stated that after the incident, he had made a phone call to the Police Station and had informed that Shiv Narayan had shot Jaswant and the person who had received the call at the Police Station, said that Police had already left for the place and that he would give this information to the Station House Officer. Thereafter he started writing the report. When Chandra Bhan and Raj Singh came there, he was writing the report and before he could complete the report, they had gone away in search of the accused persons. The Deputy Inspector General of Police and Superintendent of Police came to the place of the incident at about 3:00 p.m. and at that time the dead body was still there and the inquest report was being prepared.

19. PW-3, Head Constable Chandra Bhan Singh stated that on 28.01.2005 he was posted in Police Station Rath and on that day Shiv Kumar had given an application to the Station House Officer in his presence and the Inspector-in-charge had directed him to visit the spot in village Nandana, carry out an enquiry and submit a report regarding the application. When he reached the spot he found that Jaswant Singh has been killed and the persons present there had informed that the accused persons had ran away towards the fields. He also went towards the fields to search and arrest the accused persons. He returned to the village at about 1:30 p.m. as he could not find the accused persons. When he reached back the village, the then Station House Officer, Sri Trivedi had already reached there, along with the Police force. Upon instructions of the Station House Officer he had gone towards village Chilli in search of the accused persons. When he could not find the accused persons, he went back to the Police Station in the evening.

20. PW-4, Dr. R. K. Misra, who had conducted the post mortem examination of the dead body of Jaswant Singh, stated that the dead body had various injury marks due to entry of pellets from gun-shot on the front of his chest in an area of 30 cm X 30 cm. These were mainly in the central portion of the chest. There was a lacerated wound on the face at the lower lip. Left lung and heart were found to be torn and one pellet was found in the lung and two pellets were found in the heart. About 1½ litres coagulated as well as liquid blood was present inside the chest. There was about 150 gms. semi digested food in the stomach. As per his opinion, the deceased died on 28.01.2005 at about 12:00 noon because of haemorrhage and shock due to anti mortem injuries. From the condition of food at the time of the inquest, it appeared that the deceased had his meal about four hours before his death. He said that he could not give any opinion as to whether the fire was shot in a direction parallel to the earth or not. It would have taken about 20-25 minutes for the 1½ litres blood found in the chest cavity of the dead body to bleed. Bleeding continues till the heart beats and a person is taken to be dead only upon the heart beat stops. In his opinion, the deceased would have been able to breathe for five to ten minutes after being hit by the gun shot.

21. PW-5, Head Constable Suresh Kumar Singh proved the chik report (Ex.3) which had been prepared by him.

22. PW-6, Assistant Inspector Mohan Lal stated that he had prepared the inquest report as per the instructions of the Inspector-in-charge P.S. Kotwali Rath and he had arrested the accused respondent Shiv Narayan on 02.02.2005 at about 12:15 hours and had recovered the double barrel licensed gun along with the license and four live cartridges from Shiv Narayan. He stated that in the inquest report (Ex.A-5) initially he had written that the dead body had a blood stained injury on the right side of the face and no other injury was visible but immediately thereafter he suspected that this injury could not have caused death and then he had lifted the Kurta and vest of the dead body and had seen the wounds on his chest and had inserted this in the inquest report. 

23. PW-6 was recalled by the Court and upon being recalled, he proved recovery of the double barrel gun, three cartridges, the blood stained and unstained pieces of cemented floor taken from the place inside the house of the Shiv Kumar where the dead body was lying. He said that he did not find any blood outside the house of Shiv Kumar.

24. PW-7 Sub Inspector Radhey Shyam Tiwari said that on 28.01.2005 he was posted as the Inspector-in-charge of Police Station Rath and he had inspected the place of occurrence and had prepared the site plan (Ex. A-9). He stated that the inquest report (Ex.A-5) and other forms for carrying out the post mortem examination (Ex. A-6 and A-7) were prepared by Head Constable Mohan Lal under his instructions. During his cross examination, he stated that before the incident, Shiv Kumar had given a complaint letter (Ex.1) regarding the dispute between Shiv Narayan and Shiv Kumar in relation to the gate. A phone call was received in the Police Station giving information about Jaswant's death. The phone call was received by Head Constable Suresh Kumar and immediately after receiving the call, he had given its information to PW-7.

25. He said that the entrance of Shiv Kumar's house faces the East. This door is in front of the Channel gate which is at "Doosri Manzil".

Defence Evidence:-

26. In his statement recorded under Section 313 Cr.P.C., the accused respondent No.1 - Shiv Narayan denied the prosecution case and stated that PW-1 Shyam Singh and Shiv Kumar had given false evidence in order to grab his property. He stated that on the day following the date of the incident, the Investigating Officer had come to his house and had taken away his gun, which was out of order, and the empty cartridges kept in a cupboard and he had also taken away accused respondent no.1. Similar statements were given by the accused-respondent no.2 Pradeep Kumar in his statement recorded under Section 313 Cr.P.C. 

27. The defence produced a copy of an affidavit of PW-1 (Paper No. 11 B) marked as Exhibit B-1, in which PW-1 had stated that he knew that the accused Shiv Narayan had already made some negotiations with the local Police prior to his arrest and the procedure adopted by the Police regarding the empty cartridges was a step in aid of the accused-respondents, which has benefitted them. Exhibit B-2 was the General Diary and Exhibit B-3 produced by the defence was a copy of the application dated 28-01-2005 given by Shiv Kumar to the Police regarding the gate forcibly affixed by the accused-respondent no. 1 Shiv Kumar on the platform in front of his House.

28. Although both the accused persons had stated that they would lead evidence in their defence, none of them appeared as a witness to defend themselves and no other person was produced as defence witness.

Findings Of The Trial Court: -

29. The learned court below held that it is stated in the inquest report (Ex. A-5) that there were pellet injuries in the chest in an area of about 30 cm X 30 cm and although this has been inserted after preparation of the inquest report, there are no initials on it. In his statement, PW-6 stated that after writing in the inquest report that there was an injury on the side of the face below the lip and there was no other apparent injury, he suspected that this injury could not have caused death and then he lifted the Kurta and vest of the dead body and saw the injuries on his chest and thereafter he inserted this fact in the report.

30. The learned Trial Court further held that in reply to a question put by the Court, PW-6 stated that there were no marks of entry of the pellets on the Kurta and the vest worn by the deceased and had he been wearing the same Kurta and vest before his death, entry marks of pellets ought to have been there on his cloths. From this statement of PW-6 it is clear that the prosecution story is not trustworthy.

31. The learned court below held that PW-1 had stated that the Investigating Officer had collected samples of blood stained soil as well as plain soil from the place of the incident whereas PW 2 and PW-6 has stated that the samples were taken from the place where the dead body was lying and this indicates that the incident did not occur in the manner in which it has been described.

32. The learned court below further held that in the written report there is no mention of the place from where Shiv Narayan had fired the shot whereas PW-1 and PW-2 have stated that the shot was fired from inside the Channel Gate on the upper floor. However, from the contradiction between the statement of PW-1 and his affidavit dated 27.05.2005, it becomes doubtful that he had witnessed the incident.

33. The learned court below further held that the Doctor, who had conducted the Post Mortem examination of the deceased, did not mention the direction of entry of the pellets in the body and due to this omission, the prosecution story that the shot was fired from the upper floor is not fortified.

34. For the aforesaid reasons, the learned court below came to a conclusion that the prosecution has failed to prove that the incident took place in the manner stated by the prosecution and the accused persons are entitled to be given benefit of doubt. Accordingly, the learned court below passed an order acquitting the accused persons of all the charges.

Submissions of the State-Appellant

35. We have heard submissions of Shri Ratan Singh, the learned A.G.A., appearing for the State-Appellant, Sri R.K. Vaish, Advocate, the learned counsel for the informant-Revisionist in Criminal Revision No. 3459 of 2008.

36. The learned A.G.A. has taken us through the statements of the prosecution witnesses and he has submitted that PW 1 had categorically and unequivocally stated that at the exhortation of the accused- respondent no. 2, the accused respondent no. 1 had fired a gun-shot from his double barrel gun at his father, the pellets from the gun-shot hit his father and his father died immediately. His statement was fully corroborated by the statement of PW-2 - the other eye-witness of the incident and that of PW-4 - the doctor who had conducted the post mortem examination. He has submitted that the learned Court below has not examined the statements of the prosecution witnesses properly and it's finding that the prosecution has failed to establish the guilt of the accused-respondents beyond reasonable doubt, is perverse. He has submitted that the judgment of the learned Court below acquitting the accused - respondents is liable to be set aside and reversed and the accused-respondents are liable to be convicted and sentenced.

Submissions on behalf of the Accused-Respondents

37. While trying to defend the judgment and order of acquittal passed by the learned Court below, Sri Anand Priy Singh, the learned Counsel for accused-respondents has submitted that there are several discrepancies in the prosecution case which make the same doubtful. His first submission is that in the inquest report (Ex. A-5) a line has been inserted stating that there were pellet injuries in the chest in an area of about 30 cm X 30 cm and although this line has been inserted after preparation of the inquest report, no person has put his signatures to authenticate it. He next submitted that the clothes worn by the deceased at the time of the incident had been produced before the Court below and the same had been marked as Exhibit A-2. Had the deceased been wearing the same Kurta and vest at the time of the incident, there would have been marks of the entry of pellets on the Kurta and the vest, but there were no such marks and this makes the incident doubtful.

38. The learned Counsel for the accused-respondents next submitted that PW-1 had stated that the Investigating Officer had collected samples of blood stained soil as well as unstained soil from the place of the incident whereas PW 2 and PW-6 has stated that the samples were taken from the place where the dead body was lying and this indicates that the incident did not occur in the manner in which it has been described.

39. Sri. Anand Priy Singh, the learned Counsel for the accused-respondents, has laid much emphasis on the discrepancy in the words used by the witnesses - PW-1, PW-2 and PW-7 in describing the place from where the gun-shot was fired. PW-1 has stated that the accused persons were standing on the first floor of their house, where there is a channel gate. However, PW-2 has stated that the accused persons were standing near the channel gate on "doosree manzil" (the second floor) of their house. Similarly, PW-7 S.I. Radhe Shyam Trivedi has also stated that the channel gate is on "doosree manzil" (the second floor). He has submitted that this discrepancy in description of the place, from which the gun-shot was allegedly fired, makes the presence of PW-1 and PW-2 at the time and place of the incident doubtful.

40. The learned Counsel for the accused - respondents has also submitted that PW-2 had stated in his cross examination the dispute regarding the gate had been settled way back in the year 1992 and the accused - respondent no. 1 Shiv Narayan had been given his share in the platform. This indicates that there remained no dispute between the parties regarding the platform and, therefore, there was no motive for the accused - respondents to kill the deceased.

Scope Of Interference In Appeal Against Acquittal

41. In Manu Sharma v. State (NCT of Delhi), (2010) 6 SCC 1, the Hon'ble Supreme Court formulated the following principles to be kept in mind by the appellate Court while dealing with appeals against acquittal: -

"27. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly against an order of acquittal:

(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded.

(ii) The appellate court in an appeal against acquittal can review the entire evidence and come to its own conclusions.

(iii) The appellate court can also review the trial court's conclusion with respect to both facts and law.

(iv) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons set aside the judgment of acquittal.

(v) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.

(vi) While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities, it can reappraise the evidence to arrive at its own conclusion.

(vii) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed."

2. In Khekh Ram v. State of H.P., (2018) 1 SCC 202 the Hon'ble Supreme Court held that: -

"25. The elaboration of the facts in the decisions cited at the Bar has been to underline the factual setting in which reversal of the orders of acquittal had been interfered with by this Court. Though it is no longer res integra that an order of acquittal, if appealed against, ought not to be lightly interfered with, it is trite as well that the appellate court is fully empowered to review, reappreciate and reconsider the evidence on record and to reach its own conclusions both on questions of fact and on law. As a corollary, the appellate court would be within its jurisdiction and authority to dislodge an acquittal on sound, cogent and persuasive reasons based on the recorded facts and the law applicable. If only when the view taken by the trial court in ordering acquittal is an equally plausible and reasonable one that the appellate court would not readily substitute the same by another view available to it, on its independent appraisal of the materials on record. This legally acknowledged restraint on the power of the appellate court would get attracted only if the two views are equally plausible and reasonable and not otherwise. If the view taken by the trial court is a possible but not a reasonable one when tested on the evidence on record and the legal principles applied, unquestionably it can and ought to be displaced by a plausible and reasonable view by the appellate court in furtherance of the ultimate cause of justice. Though no innocent ought to be punished, it is equally imperative that a guilty ought not to be let off casually lest justice is a casualty."

(Emphasis supplied)

3. State of M.P. v. Chhaakki Lal, (2019) 12 SCC 326, the Hon'ble Supreme Court held that: -

"36. We are conscious that in an appeal against acquittal, the appellate court would not ordinarily interfere with the order of acquittal. But where the approach of the High Court suffers from serious infirmity, this Court can reappreciate the evidence and reasonings upon which the order of acquittal is based. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of the innocent. Upon reappreciation of the evidence and the reasonings of the trial court and the High Court, in our considered view, the judgment of the High Court suffers from serious infirmity. The High Court erred in doubting the version of PW 1, the sole eyewitness whose evidence is corroborated by the medical evidence and the evidence of the ballistic expert. The High Court did not appreciate the evidence of PW 1 in proper perspective and erred in disbelieving her version on the contradictions which are not material. The High Court erred in rejecting the credible evidence of Kesar Bai (PW 1), which in our considered view resulted in serious miscarriage of justice, where four persons were murdered."

(Emphasis supplied)

4. In Achhar Singh v. State of H.P., (2021) 5 SCC 543, the Hon'ble Supreme Court explained the scope of powers of the High Court in appeals against acquittal in the following manner: -

"16. It is thus a well-crystalized principle that if two views are possible, the High Court ought not to interfere with the trial court's judgment. However, such a precautionary principle cannot be overstretched to portray that the "contours of appeal" against acquittal under Section 378 Cr.P.C. are limited to seeing whether or not the trial court's view was impossible. It is equally well settled that there is no bar on the High Court's power to re-appreciate evidence in an appeal against acquittal. This Court has held in a catena of decisions (including Chandrappa v. State of Karnataka, State of A.P. v. M. Madhusudhan Rao and Raveen Kumar v. State of H.P.) that the Cr.P.C. does not differentiate in the power, scope, jurisdiction or limitation between appeals against judgments of conviction or acquittal and that the appellate court is free to consider on both fact and law, despite the self-restraint that has been ingrained into practice while dealing with orders of acquittal where there is a double presumption of innocence of the accused."

5. The Hon'ble Supreme Court further held that "homicidal deaths cannot be left to judicium dei. The court in its quest to reach the truth ought to make earnest efforts to extract gold out of the heap of black sand. The solemn duty is to dig out the authenticity. It is only when the court, despite its best efforts, fails to reach a firm conclusion that the benefit of doubt is extended."

6. The principles which emerge from the aforesaid decisions are that the scope of appeal against acquittal under Section 378 Cr.P.C is not limited to scrutinize whether or not the trial court's view is a possible view. The High Court has to appreciate the evidence in an appeal against acquittal in the same manner as it would do in an appeal against conviction. However, while adjudicating an appeal against acquittal, the High Court has to keep into consideration that the accused having been acquitted in trial, there is a double presumption of innocence of the accused.

Manner of Scrutiny of Evidence

7. Before proceeding to examine the evidence in the case in order to ascertain as to whether the judgment and order of the learned Court below needs any interference, it would be appropriate to refer to the law on the subject as propounded by the Hon'ble Supreme Court by certain judgments on the issue. While deciding an appeal against an order of acquittal passed by the High Court, the Hon'ble Supreme Court has held in State of U.P. v. M.K. Anthony, (1985) 1 SCC 505, that: -

"10. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is formed, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence given by the witness and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper-technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless there are reasons weighty and formidable it would not be proper to reject the evidence on the ground of minor variations or infirmities in the matter of trivial details. Even honest and truthful witnesses may differ in some details unrelated to the main incident because power of observation, retention and reproduction differ with individuals. Cross-examination is an unequal duel between a rustic and refined lawyer....."

(Emphasis supplied)

8. In State of U.P. v. Krishna Master, (2010) 12 SCC 324 the Hon'ble Supreme Court explained the manner in which the Court should examine the statement of witnesses, in the following words: -

"15. Before appreciating evidence of the witnesses examined in the case, it would be instructive to refer to the criteria for appreciation of oral evidence. While appreciating the evidence of a witness, the approach must be whether the evidence of the witness read as a whole appears to have a ring of truth. Once that impression is found, it is undoubtedly necessary for the court to scrutinise the evidence more particularly keeping in view the deficiencies, drawbacks and infirmities pointed out in the evidence as a whole and evaluate them to find out whether it is against the general tenor of the evidence and whether the earlier evaluation of the evidence is shaken as to render it unworthy of belief. Minor discrepancies on trivial matters not touching the core of the case, hyper technical approach by taking sentences torn out of context here or there from the evidence, attaching importance to some technical error committed by the investigating officer not going to the root of the matter would not ordinarily permit rejection of the evidence as a whole.

16. If the court before whom the witness gives evidence had the opportunity to form the opinion about the general tenor of the evidence given by the witness, the appellate court which had not this benefit will have to attach due weight to the appreciation of evidence by the trial court and unless the reasons are weighty and formidable, it would not be proper for the appellate court to reject the evidence on the ground of variations or infirmities in the matter of trivial details. Minor omissions in the Police statements are never considered to be fatal. The statements given by the witnesses before the Police are meant to be brief statements and could not take place of evidence in the court. Small/Trivial omissions would not justify a finding by court that the witnesses concerned are liars. The prosecution evidence may suffer from inconsistencies here and discrepancies there, but that is a shortcoming from which no criminal case is free. The main thing to be seen is whether those inconsistencies go to the root of the matter or pertain to insignificant aspects thereof. In the former case, the defence may be justified in seeking advantage of incongruities obtaining in the evidence. In the latter, however, no such benefit may be available to it.

17. In the deposition of witnesses, there are always normal discrepancies, howsoever honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition, shock and horror at the time of occurrence and threat to the life. It is not unoften that improvements in earlier version are made at the trial in order to give a boost to the prosecution case, albeit foolishly. Therefore, it is the duty of the court to separate falsehood from the truth. In sifting the evidence, the court has to attempt to separate the chaff from the grains in every case and this attempt cannot be abandoned on the ground that the case is baffling unless the evidence is really so confusing or conflicting that the process cannot reasonably be carried out. In the light of these principles, this Court will have to determine whether the evidence of eyewitnesses examined in this case proves the prosecution case."

(Emphasis supplied)

9. In Bhagwan Jagannath Markad v. State of Maharashtra, (2016) 10 SCC 537, the Hon'ble Supreme Court held that: -

"18. It is accepted principle of criminal jurisprudence that the burden of proof is always on the prosecution and the accused is presumed to be innocent unless proved guilty. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt. The reasonable doubt is one which occurs to a prudent and reasonable man. Section 3 of the Evidence Act refers to two conditions--(i) when a person feels absolutely certain of a fact--"believes it to exist", and (ii) when he is not absolutely certain and thinks it so extremely probable that a prudent man would, under the circumstances, act on the assumption of its existence. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability (Vijayee Singh versus State of U.P., (1990) 3 SCC 190).

19. While appreciating the evidence of a witness, the court has to assess whether read as a whole, it is truthful. In doing so, the court has to keep in mind the deficiencies, drawbacks and infirmities to find out whether such discrepancies shake the truthfulness. Some discrepancies not touching the core of the case are not enough to reject the evidence as a whole. No true witness can escape from giving some discrepant details. Only when discrepancies are so incompatible as to affect the credibility of the version of a witness, the court may reject the evidence. Section 155 of the Evidence Act enables the doubt to impeach the credibility of the witness by proof of former inconsistent statement. Section 145 of the Evidence Act lays down the procedure for contradicting a witness by drawing his attention to the part of the previous statement which is to be used for contradiction. The former statement should have the effect of discrediting the present statement but merely because the latter statement is at variance to the former to some extent, it is not enough to be treated as a contradiction. It is not every discrepancy which affects the creditworthiness and the trustworthiness of a witness. There may at times be exaggeration or embellishment not affecting the credibility. The court has to sift the chaff from the grain and find out the truth. A statement may be partly rejected or partly accepted [Leela Ram versus State of Haryana, (1999) 9 SCC 525]. Want of independent witnesses or unusual behaviour of witnesses of a crime is not enough to reject evidence. A witness being a close relative is not enough to reject his testimony if it is otherwise credible. A relation may not conceal the actual culprit. The evidence may be closely scrutinised to assess whether an innocent person is falsely implicated. Mechanical rejection of evidence even of a "partisan" or "interested" witness may lead to failure of justice. It is well known that principle "falsus in uno, falsus in omnibus" has no general acceptability [Gangadhar Behera versus State of Orissa (2002) 8 SCC 381 On the same evidence, some accused persons may be acquitted while others may be convicted, depending upon the nature of the offence. The court can differentiate the accused who is acquitted from those who are convicted. A witness may be untruthful in some aspects but the other part of the evidence may be worthy of acceptance. Discrepancies may arise due to error of observations, loss of memory due to lapse of time, mental disposition such as shock at the time of occurrence and as such the normal discrepancy does not affect the credibility of a witness.

20. Exaggerated to the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape [Gangadhar Behera (2002) 8 SCC 381]."

(Emphasis supplied)

10. The principles which emerge from the aforesaid decisions are that there are always some discrepancies in the statements of witnesses, but while examining the evidence, the Court should consider that whether the evidence, taken as a whole, appears to have a ring of truth. The Court must examine whether those discrepancies go to the root of the matter or not. In the former case, the Appellate Court may have to uphold the order of acquittal passed by the trial Court. In the latter case, the appellate court is competent to reverse the decision of the trial court depending on the materials placed the Court. The prosecution has to prove its case beyond reasonable doubt and the accused is entitled to the benefit of the reasonable doubt, but a reasonable doubt is one which occurs to a prudent and reasonable man. The doubt which the law contemplates is not of a confused mind but of prudent man who is assumed to possess the capacity to "separate the chaff from the grain". The degree of proof need not reach certainty but must carry a high degree of probability. Exaggerated stress upon the rule of benefit of doubt can result in miscarriage of justice. Letting the guilty escape is not doing justice. A Judge presides over the trial not only to ensure that no innocent is punished but also to see that guilty does not escape. Though no innocent ought to be punished, it is equally imperative that a guilty ought not to be let off casually lest justice is a casualty. A miscarriage of justice which may arise from the acquittal of the guilty is no less than from the conviction of the innocent. If the view taken by the trial court is a possible but not a reasonable one when tested on the evidence on record and the legal principles applied, unquestionably it can and ought to be displaced by a plausible and reasonable view by the appellate court in furtherance of the ultimate cause of justice.

11. In the light of these principles, this Court will have to determine whether the evidence of the witnesses examined in this case proves the prosecution case.

Scrutiny Of Prosecution Evidence

12. PW-1, who is the son of the deceased (Jaswant Singh) and is the informant of the case, has stated that he was standing in front of his house in the village Nandana. The house of Shiv Kumar is opposite his house. Shiv Kumar was also standing in front of his house. The informant's father was standing near Shiv Kumar, approximately 6 feet away from him. The house of the accused-respondents is about 6-7 steps away from the informant's house. Shiv Kumar is the brother of accused-respondent No. 1 Shiv Narayan. There is a platform measuring 30 x 10 feet in front of the house of Shiv Narayan which previously belonged to the accused and the informant's father Jaswant jointly. About 10 years prior to the incident, a portion of the platform measuring about 10 x 10 feet had been given to the accused-respondent No. 1 under a mutual settlement. On the date of the incident, Shiv Narayan was putting up a gate by encroaching upon an area in excess of his area of 10 x 10 feet. The informant's father and Shiv Kumar forbade him from putting up the gate. At that time, the accused-respondents were standing upon the roof at the first floor of the house where a channel gate is fixed. They were inside the channel gate. The respondent No. 2 had stated from inside the channel gate that "bade aaye panchayat karne wale, goli mar do". Shiv Narayan fired a gun-shot from his double barrel licensed gun, which hit his father on the chest and face. His father fell down and to save him, the informant and other persons took his father inside house of Shiv Kumar. Soon after he was taken inside, he died. Pradeep was also carrying a single barrel gun in his hand. Thus it appears that PW-1 has described the incident in unequivocal terms.

13. PW-1 has further stated that a written report of the apprehended breach of peace in relation to the dispute had already been given at the Police Station in the morning and information of this incident was given to the Police Station through mobile phone of Shiv Kumar immediately. Pursuant to the written report sent in the morning, Head Constable Chandrabhan Singh and Constable Raj Singh had come to conduct an enquiry within 5-6 minutes of the death of the informant's father. The aforesaid Police personnel went in search of the accused and meanwhile PW-1 got a report of the incident scribed by Shiv Kumar. He had gone to the Police Station on the motor cycle of Surjan Singh and it took about 10 minutes to reach the Police Station. The report of the incident said to have taken place at about 12:00 noon was lodged in the Police Station promptly at 12:45 p.m.

14. PW-2 Shiv Kumar, who is the real brother of the accused-respondent no. 1 Shiv Kumar and uncle of the accused-respondent no. 2 Pradeep, stated that on 28.01.2005 at about 10:00 a.m. he had gone to the Police Station Rath to give a written application regarding an iron gate being put up by the accused Shiv Narayan. He came back to his home at about 11 a.m. At about 12:00 noon he was standing outside his house. Jaswant Singh (deceased) and his son Shyam Singh were standing near the witness. The accused-respondents Shiv Narayan and Pradeep Kumar were standing at Channel gate at "Doosri Manzil" of their home. PW-2 said to Shiv Narayan that he has given a report in the Police Station and till the Police carries out an enquiry, he should not raise any construction. The accused Shiv Narayan is the elder brother of PW-2 and at that time he was carrying his licensed double barrel gun and Pradeep was carrying an unlicensed single barrel gun. Upon hearing about the report given by PW 2 to the Police, Shiv Narayan and Pradeep got annoyed and started hurling abuses. Jaswant forbade the accused-respondents from abusing. Being enraged by it, the accused Pradeep said to his father Shiv Narayan that these people have come to do a panchayat, shoot them. Shiv Narayan fired a shot from the gun being carried by him and the pellets from the shot hit the chest and lips of Jaswant. Jaswant was taken inside the house of PW-2 with the intention to save him but upon being taken inside, they found that Jaswant had died immediately upon being shot. PW 2 stated that he had scribed the report upon dictation of PW-1 Shyam Singh.

15. In his cross examination, PW-2 stated that two days prior to the incident, father of PW-2 (who was the father of the accused-respondent no. 1 Shiv Narayan also) and Jaswant had forbidden Shiv Narayan from putting a gate on the platform. He stated that in front of his house there is a double storied "Baithaka" (Guest House) of Shiv Narayan, which was given to Shiv Narayan in partition. At the time of the incident, PW-2 was standing 4-5 steps away from the main door of his house, towards the North, on the platform. Jaswant was standing 4-5 steps away from PW-2 in the passage, below the platform. He was hit by the gun shot at the place where he was standing and upon being hit, he fell down at the same place. PW-2 further stated that after the incident, he had made a phone call to the Police Station and had informed that Shiv Narayan had shot Jaswant and the person who had received the call at the Police Station, had said that Police had already left for the place and that he would give this information to the Station House Officer. Thereafter he started writing the report. When Head Constable Chandra Bhan and Raj Singh reached there, he was writing the report and before he could complete writing the report, they had gone away in search of the accused persons.

16. PW-3, Head Constable Chandra Bhan Singh stated that on 28.01.2005 he was posted in Police Station Rath and on that day Shiv Kumar (PW-2) had given an application to the Station House Officer in his presence and the Inspector-in-charge had directed him to visit the spot in village Nandana, carry out an enquiry and submit a report regarding the application. When he reached the spot he found that Jaswant Singh has been killed and the persons present there had informed that the accused persons had ran away towards the fields. He had gone towards the fields to search and arrest the accused persons but he could not find them and he returned to the village at about 1:30 p.m. Thus his statement fully corroborates the statements of PW-1 and PW-2 that written information had been given at the Police Station regarding the apprehended breach of peace due to the dispute between the parties and that the Police personnel had reached the place of the incident soon after the incident.

17. PW-7 Sub Inspector Radhey Shyam Tiwari stated that on 28.01.2005 he was posted as the Inspector- in-charge of Police Station Rath and he had inspect the place of occurrence and had prepared the site plan (Ex. A-9). During his cross examination, he stated that before the incident, Shiv Kumar had given a complaint letter (Ex.1) regarding the dispute between Shiv Narayan and Shiv Kumar in relation to the gate. A phone call was received in the Police Station giving information about Jaswant's death. The phone call was received by Head Constable Suresh Kumar and immediately after receiving the call he had informed it to PW-7. Thus his statement also corroborates the statements of PW-1 and PW-2.

18. PW-4, Dr. R. K. Misra, who had conducted the post mortem examination of the dead body of Jaswant Singh, stated that the dead body had various injury marks due to entry of pellets from gun-shot on the front of his chest in an area of 30 cm X 30 cm. These were mainly in the central portion of the chest. There was a lacerated wound on the face at the lower lip. Left lung and heart were found to be torn and one pellet was recovered from the lung and two pellets were found from the heart. About 1½ litres coagulated as well as liquid blood was present inside the chest. It would have taken about 20-25 minutes for the 1½ litres blood found in the chest cavity of the dead body to bleed. Bleeding continues till the heart-beats continue and a person is taken to be dead only upon the heart beat stops. In his opinion, the deceased would have been able to breathe for five to ten minutes after being hit by the gun shot. As per his opinion, the deceased died on 28.01.2005 at about 12:00 noon because of haemorrhage and shock due to the anti mortem injuries. The statement of PW-4 fully corroborates the statements of PW-1 and PW-2 and there is nothing in his statement, which contradicts the statements of eye-witnesses PW-1 and PW-2.

19. PW 1 stated in his cross examination that his father had a light meal and afterwards, he came out of the house and sat in the sun-light, about half an hour before the incident, i.e., at about 11:30 a.m. PW-4 stated that there was about 150 gms. semi-digested food in the stomach. This also corroborates the statement of PW-1.

20. From a thorough scrutiny of the statements of the witnesses, we find that there is a platform in front of the house of the accused-respondent no. 1 Shiv Narayan. Earlier this platform was jointly owned by all the persons and about 10 years ago, a portion of the platform measuring 10 ft. x 10 ft. was given to Shiv Narayan. Shiv Narayan was putting up a gate by encroaching upon an area in excess of his portion of the platform. Written information of an apprehended breach of peace due to the aforesaid dispute had already been given in the Police Station at about 10:00 a.m. on the date of the incident. The informant's father Jaswant and PW-2 Shiv Kumar had forbidden the accused-respondent no. 1 from putting up the gate. Upon this, Shiv Narayan (the accused-respondent No. 1) and his son Pradeep (the accused-respondent No. 2) started hurling abuses. The informant and his father, who was standing with Shiv Kumar in front of his house, forbade them from doing so. At that time, Pradeep and Shiv Narayan were standing inside the channel gate at the first floor of their house. The accused-respondent no. 1 was carrying a licensed double barrel gun and the accused-respondent no. 2 was carrying an unlicensed single barrel gun. Referring to the informant's father and Shiv Kumar, the accused-respondent no. 2 Pradeep said to the accused--respondent no. 1 Shiv Narayan that "bade panch bante hain, goli maar do" meaning that the aforesaid persons were acting as panchs (arbitrators) and he should shoot them. Upon the exhortation of the accused-respondent no. 2 Pradeep, the accused respondent no. 1 Shiv Narayan fired a gun-shot killing Jaswant - the father of the informant.

21. PW-2 Shiv Kumar, who is the real brother of the accused-respondent no. 1 Shiv Narayan, has given the same narration of the incident of the deceased Jaswant being shot dead by the accused-respondent no. 1 Shiv Narayan at the exhortation of the accused-respondent no. 2 Pradeep, as was given by PW-1 and the statements of PW-1 and PW-2 do not contain any discrepancy regarding any material fact relating to the incident. Their statements are fully corroborated by the statements of PW-3, PW-4 and PW-7.

22. From the F.I.R. and the statements of witnesses, it is established that the incident took place in broad day-light at 12:00 noon, on the public passage between the house of the accused-respondents and that of PW-2. F.I.R. of the incident was lodged promptly at 12:45 p.m. The statements of the eyewitnesses are quite cogent and consistent with the earliest version recorded in the form of the First Information Report. At the time of the incident, the accused-respondent no. 1 Shiv Narayan was carrying a double barrel gun and the accused-respondent no. 2 Pradeep was carrying a single barrel gun and the deceased and all the other persons present with him were not carrying any weapon. The accused-respondent no. 1 had fired the gun-shot at the exhortation of the accused-respondent no. 2, at the first opportunity, without there being any provocation or any overt act on the part of the deceased or any other person accompanying him.

Analysis Of Findings Of The Trial Court In Light Of Prosecution Evidence

23. The learned Court below has held that it is stated in the inquest report (Ex. A-5) that there were pellet injuries in the chest of the dead body in an area of about 30 cm X 30 cm and although this has been inserted after preparation of the inquest report, no person has put his signatures to authenticate the same. In reply to a question put by the Court, PW-6 had stated that there were no marks of entry of the pellets on the Kurta and the vest worn by the deceased and had he been wearing the same Kurta and vest before his death, entry marks of the pellets ought to have been there on his clothes.

24. The legal position regarding an Inquest Report prepared under Section 174 of the Criminal Procedure Code has been explained by the Hon'ble Supreme Court in the case of Tehseen Poonawalla v. Union of India, (2018) 6 SCC 72, in the following words: -

"38. Section 174 deals with a situation where information is received by an officer in charge of a Police Station of a person having committed suicide, or having been killed (i) by another; or (ii) by an animal; or (iii) by machinery; or (iv) by an accident or of having died under circumstances raising a reasonable suspicion that some other person has committed an offence. In any of these situations, the Police officer is required to furnish intimation immediately to the nearest Executive Magistrate who is empowered to hold inquests. He is required to proceed to the place where the body is situated and in the presence of two witnesses to make an investigation and draw up a report of the apparent cause of death. The report would describe the wounds including marks of injury which are found on the body and in what manner or by what weapon or instrument if any they appear to have been inflicted.

39. The purpose of holding an inquest is limited. The inquest report does not constitute substantive evidence. Hence matters relating to how the deceased was assaulted or who assaulted him and under what circumstances are beyond the scope of the report. The report of inquest is primarily intended to ascertain the nature of the injuries and the apparent cause of death. On the other hand, it is the doctor who conducts a post-mortem examination who examines the body from a medico-legal perspective. Hence it is the post-mortem report that is expected to contain the details of the injuries through a scientific examination.

40. The scope of an inquiry under Section 174 Cr.P.C has been considered in several decisions of this Court. In Pedda Narayana v. State of A.P. [(1975) 4 SCC 153] this Court explained that the limited scope of such an inquiry is to ascertain whether a person has died in suspicious circumstances or an unnatural death and, if this was the case, the apparent cause of death. The Court observed: (SCC pp. 157-58, paras 10 & 11)

The proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the Police to mention those details in the inquest report.

This principle was reiterated in Amar Singh v. Balwinder Singh [(2003) 2 SCC 518] where the Court observed thus: (SCC p. 529, para 12)

"12. ... The requirement of the section is that the Police officer shall record the apparent cause of death describing the wounds as may be found on the body and also the weapon or instrument by which they appear to have been inflicted and this has to be done in the presence of two or more respectable inhabitants of the neighbourhood. The section does not contemplate that the manner in which the incident took place or the names of the accused should be mentioned in the inquest report. The basic purpose of holding an inquest is to report regarding the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or by some machinery, etc."

41. The view in Pedda Narayana has been approved by a three-Judge Bench in Khujji v. State of M.P.[(1991) 3 SCC 627]. Hence in Radha Mohan Singh v. State of U.P.[(2006) 2 SCC 450]a Bench of three learned Judges formulated the principle in the following terms: (Radha Mohan case, SCC pp. 462-63, para 15)

"15. ... Thus, it is well settled by a catena of decisions of this Court that the purpose of holding an inquest is very limited viz. to ascertain as to whether a person has committed suicide or has been killed by another or by an animal or by machinery or by an accident or has died under circumstances raising a reasonable suspicion that some other person has committed an offence. There is absolutely no requirement in law of mentioning the details of the FIR, names of the accused or the names of the eyewitnesses or the gist of their statements, nor is it required to be signed by any eyewitness."

A Bench of two learned Judges of this Court in Madhu v. State of Karnataka [(2014) 12 SCC 419] has observed that an inquest report is not substantive evidence.

42. In Manoj Kumar Sharma v. State of Chhattisgarh, [(2016) 9 SCC 1] a Bench of two learned Judges held that the purpose of an "inquest" in cases of accidental or suspicious deaths under Sections 174 and 175 is distinct from the "investigation" under Section 157 of the Code under which if an officer in charge of a Police Station has reason to suspect the commission of an offence which he is empowered to investigate, he shall proceed in person to the spot to investigate the facts and circumstances of the case. Reiterating this principle, a two-Judge Bench in Bimla Devi v. Rajesh Singh [(2016) 15 SCC 448] explained the scope of the provisions of Section 174 in the following observations: (Bimla Devi case, SCC pp. 453-54, para 10)

"10. ... The scope of the section is investigation by the Police in cases of unnatural or suspicious death. However, the scope is very limited and aimed at ascertaining the first apparent signs of the death. Apart from this, the Police officer has to investigate the place wherefrom the dead body is recovered, describe wounds, fractures, bruises and other marks of injury as may be found on the body, stating in what manner or by what weapon or instrument, such injuries appear to have been inflicted. From the above, it thus becomes clear, that the section aims at preserving the first look at the recovered body and it need not contain every detail. Mere overwriting in the name of the informant would not affect the proceedings."

43. The same position has been laid down in a more recent decision of a two-Judge Bench in Yogesh Singh v. Mahabeer Singh: [(2017) 11 SCC 195]: (SCC p. 217, para 41)

"41. Further, the evidentiary value of the inquest report prepared under Section 174 Cr.P.C has also been long settled through a series of judicial pronouncements of this Court. It is well established that inquest report is not a substantive piece of evidence and can only be looked into for testing the veracity of the witnesses of inquest. The object of preparing such report is merely to ascertain the apparent cause of death, namely, whether it is suicidal, homicidal, accidental or caused by animals or machinery, etc. and stating in what manner, or by what weapon or instrument, the injuries on the body appear to have been inflicted."

(Emphasis supplied)

25. Keeping in view aforesaid legal position, since the inquest report is not a substantive evidence, any discrepancy in the narration in the inquest report would not override the overwhelming substantive evidence on record in the shape of the statements of the eye-witnesses PW-1 and PW-2 and the medical evidence in the shape of the Post Mortem Report, which was proved by PW-4 - the doctor who had conducted the post mortem examination.

26. So far as the insertion of a line in the inquest report mentioning the injuries on the chest is concerned, the same had been explained by PW-6 by stating that after writing in the inquest report that there was an injury on the side of the face below the lip and there was no other apparent injury, he suspected that this injury could not have caused death and then he lifted the Kurta and vest of the dead body and saw the injuries on his chest and thereafter he inserted this fact in the report. We may reiterate that as the inquest report is not a substantive evidence, this interpolation in the report would not vitiate the prosecution case when the statements of the eye-witnesses is fully corroborated by the medical evidence in the case.

27. The learned trial Court has held that PW-6 had stated in his cross examination that there were no marks of entry of the pellets on the Kurta and the vest worn by the deceased and had he been wearing the same Kurta and vest before his death, entry marks of the pellets ought to have been there on his clothes and from this statement of PW-6 it is clear that the prosecution story is not trustworthy. Although the learned Counsel for the accused-respondents has contended that the clothes worn by the deceased at the time of the incident had been produced before the Court below and the same had been marked as Exhibit A-2, but we have examined the record that found that Exhibit A-2 is the post mortem examination report of the dead body and it merely contains an endorsement that the Kurta, pyjama, vest, inner and a ring of white metal were recovered from the dead body and the same were handed over to the constable concerned. Therefore, the contention of the learned Counsel for the accused-respondents that the clothes worn by the deceased were produced before the Court below as Exhibit A-2 is misconceived and we find that the Kurta and the other clothes worn by the deceased at the time of the incident had not been produced before the Court.

28. We find that the learned Court below has given undue importance to the statements of witnesses regarding absence of marks on the Kurta and vest, particularly when the clothes had not been produced before the Court and, more particularly, when the incident had otherwise been fully proved by the statements of the eye-witnesses, which were corroborated by the statements of PW-3, PW-4 and PW-7 and there was no discrepancy in the statements of the witnesses in describing any material facts relating to the incident. As we have already observed in the preceding paragraphs, there are always some discrepancies in the statements of witnesses, but while examining the evidence, the Court should consider that whether the evidence, taken as a whole, appears to have a ring of truth. Examining the entire evidence of the case, we find that the finding of the Court below that absence of injury marks on the Kurta makes the incident doubtful, is against the overwhelming evidence of the eye-witnesses, which was corroborated by the statements of PW-3, PW-4 and PW-7, and the finding being against the weight of the evidence on record, is certainly perverse and it cannot be sustained.

29. The learned Counsel has held that PW-1 had stated that the Investigating Officer had collected samples of blood stained soil as well as plain soil from the place of the incident whereas PW-2 and PW-6 had stated that the samples were taken from the place where the dead body was lying and this indicates that the incident did not occur in the manner in which it has been described. In this regard, we may state that we have perused the recovery memo (Exhibit A-12), which contains the signatures of Shiv Kumar (PW-2) and one Mulayam Singh as witnesses. The recovery memo, which was prepared on the date of the incident itself, states that samples of blood stained cemented floor and unstained cemented floor were dug out from inside the house of Shiv Kumar, where the dead body was lying. The recovery has been proved by the statements of PW 2 and PW 6.

30. PW-1 was not a witness to the recovery of the articles and the discrepancy in the statement of PW-1 regarding the place from where the soil was recovered, may be for various reasons. As held in Krishna Master (Supra), there are always some discrepancies in the deposition of witnesses, howsoever honest and truthful they may be. We may notice here that the father of PW-1 had been killed by his cousin and the inquest report was prepared and the samples of the floor were collected on the same date a short while after the murder of his father, when PW-1 surely would have been in a mental state of shock and horror. In such circumstances, some discrepancies in his statement are bound to occur. We find that the inconsistency in the statement regarding the place from where the sample of soil was collected after the incident, does not go to the root of the matter, as it does not relate to the occurrence of the incident. The inconsistency concerning a peripheral matter would not vitiate the prosecution case.

31. In light of the aforesaid discussion, we find that the learned Court below has erred in holding that the discrepancy in the statement of PW-1 and the statements of PW-2 and PW-6 regarding the place from where the blood-stained and un-stained pieces of flooring were collected creates doubt in the manner in which the incident occurred and this finding too is against the weight of evidence on record and is perverse.

32. The learned Counsel has assailed the prosecution case also on ground that in the written report there is no mention of the place from where Shiv Narayan had fired the shot. In this regard, we may state that in the present case, the FIR was lodged promptly, within 45 minutes of the incident and it was not written after a gap of some time enabling the informant to think over the averments that were made by him in the FIR. It is settled law that an FIR is not an encyclopedia and it need not mention every minute detail of the occurrence. Reference in this regard may be had to a decision of the Hon'ble Supreme Court in the case of Satpal v. State of Haryana, (2018) 6 SCC 610.

33. In Ravi Kumar v. State of Punjab, (2005) 9 SCC 315, the Hon'ble Supreme Court was pleased to explain that: -

"It has been held time and again that the FIR is not a substantive piece of evidence and can only be used to corroborate the statement of the maker under Section 161 of the Evidence Act, 1872 (in short "the Evidence Act") or to contradict him under Section 145 of that Act. It can neither be used as evidence against the maker at the trial if he himself becomes an accused nor to corroborate or contradict other witnesses. It is not the requirement of law that the minute details be recorded in the FIR lodged immediately after the occurrence. The fact of the state of mental agony of the person making the FIR who generally is the victim himself, if not dead, or the relations or associates of the deceased victim apparently under the shock of the occurrence reported has always to be kept in mind."

(Emphasis supplied)

34. Therefore, we are of the considered opinion that non-mention in the FIR of the place from where Shiv Narayan had fired the gun-shot would not vitiate the prosecution case and the finding of the Court below in this regard being against the settled law, cannot be sustained.

35. The learned Court below has doubted the prosecution case for another reason, that the Doctor conducting the Post Mortem examination did not mention the direction of entry of the pellets in the body and due to this omission, the prosecution story that the shot was fired from the upper floor is not fortified. In this regard we may state that the doctor conducting the post mortem examination is not under any obligation to mention in the report the angle of entry of pellets in the body. Even if there was any such duty, the mere failure of the Doctor to mention the angle of entry of the pellets would not demolish the prosecution case when the eye-witnesses have categorically stated that the accused-respondent no. 1 had fired the gun-shot from the upper floor of his house.

36. The learned Court below has doubted the statement of PW-1 on the ground that it is inconsistent with his affidavit dated 27.05.2005. In the aforesaid affidavit dated 27.05.2005, PW-1 had merely stated that that the accused Shiv Narayan had already made some negotiations with the local Police prior to his arrest and the procedure adopted by the Police regarding the empty cartridges was a step in aid of the accused-respondents, which has benefitted them. There is no discrepancy in the statements made in the affidavit and those made in the deposition before the Court. On the contrary, the affidavit expresses an apprehension in the mind of the PW-1 that the accused Shiv Narayan had already made some negotiations with the local Police prior to his arrest and for this reason the Police was helping the accused persons. The finding of the learned Court below in this regard appears to have been recorded without a proper reading of the affidavit dated 27-05-2005 and the statement of PW-1 and, therefore, the same is also perverse and unsustainable.

37. Here it would be relevant to notice that although both the accused persons had stated that they would lead evidence in their defence, none of them appeared as a witness to defend themselves and no other person was produced as defence witness. Although in a criminal case the prosecution has to prove its case and the accused persons cannot be convicted merely for their failure to lead evidence to defend themselves, but at the same time, in a case like the present one, where prosecution has proved its case by leading sufficient evidence, failure of the accused-respondents to lead evidence to defend themselves and to appear as witnesses and offer themselves for being cross-examined by the prosecution, becomes relevant and this conduct of the accused-respondent goes against them and it supports the prosecution case.

Analysis of the Submissions made on behalf of the Accused-Respondents

38. The learned Counsel for the accused-respondents Sri. Anand Priy Singh has submitted that there are serious contradictions in the statements of PW-1 and PW-6 regarding recovery of the gun in as much as during his cross-examination, PW-1 stated that the Sub-Inspector had entered the house of the accused Shiv Narayan along with his constables and no person from the village had entered with him and he had brought the cartridges from his house whereas PW-6, after being recalled, stated that under the orders of the I.O., he had gone to inside the house of the accused-respondents alongwith witnesses, for recovering the cartridge. Upon scrutiny of the aforesaid statements of PW-1 and PW-6, we find that PW-1 had stated that PW-6 had entered the house with constables whereas PW-6 had stated that he had entered the house with witnesses. Nobody had said that PW-6 had entered Shiv Narayan's house alone and it appears that the constables who had accompanied him inside the house of the accused-respondents, have been referred by PW-6 as the witnesses. Therefore, there is no discrepancy in the statements of PW-1 and PW-6 regarding any material fact or circumstance regarding recovery of the cartridge from the house of the accused-respondents. Moreover, this does not relate to the occurrence of the incident and, therefore, it would not affect the prosecution case adversely.

39. The learned Counsel for the accused-respondents has next submitted that no pellets were recovered from the place of the incident and the pellets were not sent for forensic examination, which makes the prosecution case doubtful. Although it would have been more appropriate for the prosecution to recover the pellets and to send those pellets, as well as the pellets recovered from the dead body, for forensic examination, but when the incident has been fully proved by the statement of the eye-witness PW-1 and PW-2 and their statements have been corroborated by the other witnesses PW-3, PW-4 and PW-7, we are of the considered opinion that it was not necessary for the prosecution to have recovered the pellets and to have sent the same for forensic examination and mere non-recovery of pellets does not make the prosecution case doubtful.

40. In State of Karnataka versus Suvarnamma, (2015) 1 SCC 323, the Hon'ble Supreme Court held that it is well settled that "though the investigating agency is expected to be fair and efficient, any lapse on its part cannot per se be a ground to throw out the prosecution case when there is overwhelming evidence to prove the offence."

41. In Sanjeev Kumar Gupta v. State of U.P., (2015) 11 SCC 69, the Hon'ble Supreme Court, while dealing with a case of defective investigation, held that : -

"31. We do note that the investigation suffers from certain flaws such as non-recovery of the weapon used by the appellant-accused and recovery of the bloodstained shirt after six days of the date of the incident. However, merely on the basis of these circumstances the entire case of the prosecution cannot be brushed aside when it has been proved by medical evidence corroborated by testimonies of the prosecution witnesses that the deceased died a homicidal death. This Court has held in Manjit Singh v. State of Punjab (2013) 12 SCC 746, that when there is ample unimpeachable ocular evidence and the same has received corroboration from medical evidence, non-recovery of bloodstained clothes or even the murder weapon does not affect the prosecution case.

(Emphasis Supplied)

42. In a recent decision in Kaptan Singh versus State of U.P. reported in 2020 SCC OnLine All 183, a co-ordinate Bench of this Court reiterated and explained the legal position in this regard as follows: -

"91. It is further argued that misfired cartridges and fired cartridges were not sent to the Ballistic Expert, Forensic Science Laboratory and the firearm weapon used by the appellants were never seized.

92. The said lapses on the part of the investigating officer would not necessarily prove fatal to the case of the prosecution where the direct testimony of the two prosecution witnesses is on record.

*** *** ***

98. Such omissions or lapses in the investigation cannot be a ground to discard the prosecution case which is otherwise credible and cogent.

99. In Nankaunoo v. State of U.P.; 2016 (1) SC Cr.R 237 it was held as under:

"Any omission on the part of the investigating officer cannot go against the prosecution case. Story of the prosecution is to be examined dehors such omission by the investigating agency. Otherwise it would shake the confidence of the people not merely in the law enforcing agency, but also in the administration of justice."

100. In V.K. Mishra v. State of Uttrakhand; 2015 (2) SC Cr.R it was held as under:

"The investigating officer is not obliged to anticipate all possible defences and investigate in that angle. In any event any omission on the part of the investigating officer cannot go against the prosecution. The interest of justice demands that such acts or omissions of the investigating officer should not be taken in favour of the accused or otherwise. It would amount to placing a premium upon such omissions."

(Emphasis Supplied)

43. Keeping in consideration the fact that in the present case, the incident has been clearly proved by the statements of the eye-witnesses PW-1 and PW-2 and their testimony has been corroborated by the medical evidence in the form of the post-mortem examination report and the statement of PW-4 - the Doctor who had conducted the post-mortem examination of the deceased, we find that the prosecution has been successful in proving its case by clinching direct evidence and in such a case the accused-respondents cannot get any benefit of any defect in the investigation carried out by the prosecution.

44. Sri. Anand Priy Singh, the learned Counsel for the accused-respondents, has laid much emphasis on the discrepancy in the words used by the witnesses - PW-1, PW-2 and PW-7 in describing the place from where the gun-shot was fired. PW-1 has stated that the accused persons were standing on the first floor of their house, where there is a channel gate. However, PW-2 has stated that the accused persons were standing near the channel gate on "doosree manzil", which would literally mean the second floor of their house. Similarly, PW-7 S.I. Radhe Shyam Trivedi has also stated that the channel gate is on "doosree manzil". He has submitted that this discrepancy in description of the place, from which the gun-shot was allegedly fired, makes the presence of PW-1 and PW-2 at the time and place of the incident doubtful.

45. In this regard, we may state that although in English, the floors of a double storied house are referred to as the Ground floor and the First floor and in Hindi also, the same are referred to as ''Bhoo-tal' and ''Pratham-tal' but in the present case, all the witnesses come from rural background and in common parlance, such persons refer a double-storied house as a ''do manzila makaan' and the upper floor of the house is commonly referred to as ''doosree manzil'. A perusal of the site-plan indicates that the house of the accused-respondent no. 1 Shiv Kumar has been shown to be double storied and the Ground floor has described by the phrase ''neeche ka bhaag' and the First floor has been described as ''doosree manzil', which would literally mean the lower portion and the second floor but, that literal meaning would not describe the phrases appropriately, as there is no second floor in the house of the accused-respondents. Therefore, the phrase ''doosree manzil' refers to the only floor above the Ground floor, which is actually the first floor and the channel gate has been shown in the site plan on this floor and has been marked by the letter ''A'. The description given to illustrate the map narrates that ''A' is the place on the upper floor of the house, above the veranda on the ground floor, from where the accused fired the gun-shot.

46. In view of the aforesaid discussion, we reject the contention of the learned Counsel for the accused-respondents that the reference to "doosree manzil" makes the presence of PW-1 and PW-2 at the time and place of the incident doubtful.

47. Sri. Singh has next contended that PW-1 has stated that he, his father and Shiv Kumar were standing near each other, Shiv Narayan had fired the shot towards them, which hit his father and only Shiv Narayan would have known as to which of the three persons he wanted to kill and this indicate that the accused Shiv Narayan did not intend to kill the deceased Jaswant. In our considered opinion, when PW-1 and PW-2 both have stated that PW-2 and the deceased were standing near each other, both of them had forbidden the accused-respondent no. 1 Shiv Kumar from putting up the gate, the accused-respondent no. 2 Pradeep had said that those persons were acting as panchs (arbitrators) and had exhorted the accused-respondent no. 1 Shiv Narayan to shoot them and the gun-shot fired by the accused-respondent no. 1 had hit and killed one of them, it is established that the accused-respondent no. 2 had exhorted the accused-respondent no. 1 to kill them and the accused-respondent no. 1 had fired the shot with intention to kill them. Therefore, merely because the PW-1 said that only Shiv Narayan would have known as to which of the three persons he wanted to kill, would not prove that the accused Shiv Narayan did not intend to kill the deceased Jaswant.

48. The learned Counsel for the accused - respondents next contended that PW-1 had himself stated that the dispute regarding the gate has been settled in the year 1992 and, therefore, there was no dispute between the parties and the accused-respondents had no motive to kill the deceased. However, from the evidence on record, we find that the accused-respondents have themselves brought on record the application dated 28-01-2005 that had been given by PW-2 at the Police Station regarding the gate put up by the accused-respondent no. 1 on the platform in front of his house. PW-3 Head Constable Chandra Bhan Singh has stated about the application and that the Inspector-in-charge had directed him to go to the village, carry out an enquiry and submit a report and when he reached the village, he found that Jaswant Singh had been killed. Therefore, it cannot be said that the accused-respondents had no motive to commit murder of the deceased Jaswant Singh and this contention of the learned Counsel for the accused-respondents is rejected. In any case, when ample direct evidence is available to prove the guilt of the accused-respondents, the existence of motive looses significance.

49. The learned Counsel for the accused-respondent has placed reliance upon a recent decision of the Hon'ble Supreme Court in Joseph Stephen and others versus Santhanasamy and others, 2022 Scc OnLine SC 90, wherein the Supreme Court has decided the question whether while dealing with the question whether the High Court in exercise of its revisional jurisdiction under Section 401 Cr.P.C., can set aside an order of acquittal and convict the accused by converting the finding of acquittal into one of conviction. While deciding this question, the Hon'ble Supreme Court referred to numerous precedents on the point and has held that: -

"20. Applying the law laid down by this Court in the aforesaid decisions and on a plain reading of sub-section (3) of Section 401 Cr.P.C., it has to be held that sub-section (3) of Section 401 Cr.P.C. prohibits/bars the High Court to convert a finding of acquittal into one of conviction. Though and as observed hereinabove, the High Court has revisional power to examine whether there is manifest error of law or procedure etc., however, after giving its own findings on the findings recorded by the court acquitting the accused and after setting aside the order of acquittal, the High Court has to remit the matter to the trial Court and/or the first appellate Court, as the case may be...."

50. However, in the present case, although the informant has challenged the judgment of the learned Court below by filing a revision under Section 401 Cr.P.C., as till the filing of the revision, the Act No. 5 of 2009 had not been enacted by which a Proviso was inserted in Section 372 conferring an unfettered right of appeal upon a victim of an offence, the same judgment is under challenge in an appeal filed by the State under Section 372 of Cr.P.C. and, therefore, this Court is not bound by the limitations of a revision under Section 401 of the Code.

51. The learned Counsel for the accused-respondents next cited another recent judgment of the Hon'ble Supreme Court in the case of Geeta Devi versus State of U.P., 2022 Scc OnLine SC 57. This was an appeal against an order passed by this High Court dismissing an appeal filed against an order of acquittal passed by the trial Court. The Hon'ble Supreme Court set aside the judgment of the High Court on the ground that "the High Court has not at all discussed and/or re-appreciated the entire evidence on record. In fact, the High Court has only made the general observations on the deposition of the witnesses examined. However, there is no re-appreciation of entire evidence on record in detail, which ought to have been done by the High Court, being a first appellate court." The Hon'ble Supreme Court held that "The High Court ought to have re-appreciated the entire evidence on record as it was dealing with a first appeal. Being the first appellate court, the High Court was required to re-appreciate the entire evidence on record and also the reasoning given by the learned Trial Court." 

We fail to understand, how this judgment helps the accused-respondents.

52. The learned Counsel for the accused-respondent has next placed reliance upon another judgment of the Hon'ble Supreme Court in Guru Dutt Pathak v. State of U.P., (2021) 6 SCC 116, wherein the Hon'ble Supreme Court was dealing with an appeal filed against a judgment passed by the High Court, reversing an order of acquittal passed by the trial Court. The Hon'ble Supreme Court upheld the order of the High Court and dismissed the appeal, holding that: -

"33. Considering the aforesaid facts and circumstances of the case and on reappreciation of the evidence, when the High Court has come to the conclusion that the findings recorded by the learned trial court while acquitting the accused were perverse and even contrary to the evidence on record and/or misreading of the evidence, the High Court has rightly interfered with the judgment and order of acquittal passed by the learned trial court and has rightly convicted the accused. In the present case, the appellant-original Accused 4 was specifically named right from the very beginning in the FIR. He has been attributed the specific role. The same has been established and proved from the evidence of PW 4 (even if the deposition of PW 2 is for the time being ignored). No error has been committed by the High Court in interfering with the judgment and order of acquittal passed by the learned trial court."

This judgment also does not help the accused-respondents in any manner.

53. The learned Counsel for the accused-respondents next relied upon the decision in of the Hon'ble Supreme Court in Ram Pal versus State of U.P., (2007) 15 SCC 79, in which case also, the parties are very closely related and on account of the dispute relating to some property, the relations between them were extremely strained. After a through scrutiny of the evidence on record, the High Court had set aside and reversed the order of acquittal passed by the trial Court. The Hon'ble Supreme Court held that the fate of the appeal would primarily rest on the statements of the eyewitnesses and it upheld the order of the High Court and affirmed the conviction order passed in appeal against acquittal. This decision also does not help the accused-respondent in any manner.

54. Thus in view of the aforesaid discussion, we hold that the prosecution has been successful in establishing that at the exhortation of the accused-respondent no. 2 Pradeep, the accused-respondent no. 1 Shiv Narayan fired a gun-shot from his double barrel gun towards the deceased Jaswant with the intention to cause his death and he died due to the injuries suffered due to the gun-shot. The offence was committed at about 12:00 noon, in broad daylight, and the deceased and the other persons accompanying him were unarmed and the deceased and PW-2 had merely asked the accused-respondent no. 1 not to put up a gate on the disputed platform till the Police carried out an enquiry on the application given by PW-2 in this regard at about 10:00 a.m. on the day of the incident. There was no provocation made by the deceased or any other person accompanying him. Therefore, the accused-respondent no. 1 is held guilty of committing the offence of murder of the deceased Jaswant Singh.

55. Now we proceed to examine the criminal liability of the accused-respondent no. 2 for the offence of murder committed by the accused-respondent no. 1. Section 34 of the Indian Penal Code provides as follows: -

"34. Acts done by several persons in furtherance of common intention.--When a criminal act is done by several persons, in furtherance of the common intention of all, each of such persons is liable for that act in the same manner as if it were done by him alone."

56. In Surendra Chauhan v. State of M.P., (2000) 4 SCC 110, the Hon'ble Supreme Court summarized the essential conditions to attract the applicability of Section 34 of I.P.C. in the following words: -

"11. Under Section 34 a person must be physically present at the actual commission of the crime for the purpose of facilitating or promoting the offence, the commission of which is the aim of the joint criminal venture. Such presence of those who in one way or the other facilitate the execution of the common design is itself tantamount to actual participation in the criminal act. The essence of Section 34 is simultaneous consensus of the minds of persons participating in the criminal action to bring about a particular result. Such consensus can be developed at the spot and thereby intended by all of them. [Ramaswami Ayyangar v. State of T.N. (1976) 3 SCC 779] The existence of a common intention can be inferred from the attending circumstances of the case and the conduct of the parties. No direct evidence of common intention is necessary. For the purpose of common intention even the participation in the commission of the offence need not be proved in all cases. The common intention can develop even during the course of an occurrence. [Rajesh Govind Jagesha v. State of Maharashtra (1999) 8 SCC 428] To apply Section 34 IPC apart from the fact that there should be two or more accused, two factors must be established: (i) common intention, and (ii) participation of the accused in the commission of an offence. If a common intention is proved but no overt act is attributed to the individual accused, Section 34 will be attracted as essentially it involves vicarious liability but if participation of the accused in the crime is proved and a common intention is absent, Section 34 cannot be invoked. In every case, it is not possible to have direct evidence of a common intention. It has to be inferred from the facts and circumstances of each case."

(Emphasis supplied)

57. Again, in Ramesh Singh v. State of A.P., (2004) 11 SCC 305, the Hon'ble Supreme Court held that: -

"12. To appreciate the arguments advanced on behalf of the appellants it is necessary to understand the object of incorporating Section 34 in the Penal Code, 1860. As a general principle in a case of criminal liability it is the primary responsibility of the person who actually commits the offence and only that person who has committed the crime can be held guilty. By introducing Section 34 in the Penal Code the legislature laid down the principle of joint liability in doing a criminal act. The essence of that liability is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. Thus, if the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Section 34 IPC embodies the principle of joint liability in doing the criminal act based on a common intention."

(Emphasis supplied)

58. In Chhota Ahirwar v. State of Madhya Pradesh, (2020) 4 SCC 126, the Hon'ble Supreme Court reiterated that: -

"26. To attract Section 34 of the Penal Code, no overt act is needed on the part of the accused if they share common intention with others in respect of the ultimate criminal act, which may be done by any one of the accused sharing such intention [see Asoke Basak [Asoke Basak v. State of Maharashtra, (2010) 10 SCC 660 : (2011) 1 SCC (Cri) 85], SCC p. 669]. To quote from the judgment of the Privy Council in the famous case of Barendra Kumar Ghosh [Barendra Kumar Ghosh v. King Emperor, 1924 SCC OnLine PC 49 : (1924-25) 52 IA 40 : AIR 1925 PC 1], "they also serve who stand and wait".

59. In the judgment in the case of Angad Yadav versus State of U.P., 2021 Scc OnLine All 262, a coordinate Bench of this Court summarized the law regarding criminal liability for an act done in furtherance of a common intention, in the following words: -

"56. The essence of joint liability in doing a criminal act is to be found in the existence of a common intention connecting the accused leading to the doing of a criminal act in furtherance of such intention. If the act is the result of a common intention then every person who did the criminal act with that common intention would be responsible for the offence committed irrespective of the share which he had in its perpetration. Common intention essentially being a state of mind it is very difficult to procure direct evidence to prove it. Hence, in most cases it has to be inferred from the conduct of the accused or other relevant circumstances of the case. The inference can be gathered by the manner in which the accused arrived at the scene, mounted the attack, determination and concert with which the attack was made, from the nature of injury caused by one or some of them. The contributory acts of the persons who are not responsible for the injury can further be inferred from the subsequent conduct after the attack. Even an illegal omission on the part of such accused can indicate the sharing of common intention. The act need not be very substantial, it is enough that the act is only for guarding the scene for facilitating the crime. Presence of the accused, who in one way or other facilitate the execution of common design is tantamount to actual participation in the criminal act. The act need not necessarily be overt, even a covert act is enough, provided such a covert act is proved to have been done by the co-accused in furtherance of the common intention. To invoke Section 34 IPC two factors must be established: (i) common intention and (ii) participation of the accused in the commission of an offence. To fasten the liability u/s 34 IPC an act, whether overt or covert, is indispensable to be done by a co-accused. If no such act is done by a person, even if he has common intention with the others for the accomplishment of the crime, Section 34, IPC cannot be invoked for convicting that person. In other words, the accused who only keeps the common intention in his mind, but does not do any act at the scene, cannot be convicted with the aid of Section 34, IPC. To ascertain common intention, totality of circumstances must be taken into consideration in arriving at the conclusion whether the accused had the such intention to commit an offence of which he could be convicted."

60. Here the accused-respondent no. 2 is the son of the accused-respondent no. 1. The deceased was a cousin (uncle's son) of the accused-respondent no. 1. There was a dispute regarding some family property going on. At the time of the incident, the accused-respondent no. 1 was carrying a double barrel gun and the accused-respondent no. 2 was carrying a single barrel gun. The deceased and all the other persons present there from his side were not carrying any weapon. When the deceased and the PW-2 said to the accused-respondent no. 1 that he should not proceed with the work of putting up a gate at the disputed platform till the Police carried out an enquiry pursuant to an application given by PW-2 to the Police in the morning of the date of the incident, the accused-respondent no. 2 was standing with the accused-respondent no. 1 and he exhorted to the latter "bade panch bante hain. Goli maar do" meaning that the persons were trying to act as the arbitrators, and the accused-respondent no. 1 should shoot them and at his exhortation, the accused-respondent no. 1 shot and killed the deceased. This shows that at the time when the gun-shot was fired, the accused-respondent no. 2 was physically present with the accused-respondent no. 2 at the place of the incident, he exhorted the accused-respondent no. 1 to shoot at the deceased and he thereby promoted the offence and both the accused persons had a common intention to shoot at the deceased to kill him. In these circumstances, even if the accused-respondent no. 2 did not himself fire the shot at the deceased, he would be vicariously liable under Section 34 of the Penal Code for the offence of murder committed by the accused-respondent no. 1.

61. Our view is supported by a recent decision of the Hon'ble Supreme Court in Sandeep versus State of Haryana 2021, Scc OnLine SC 642, wherein one of the accused persons Sandeep had given an exhortation immediately before the shot was fired. Sandeep was convicted for the offence under Section 302 read with Section 34 IPC and his conviction was confirmed by the High Court. The Hon'ble Supreme Court dismissed the Appeal filed by the accused Sandeep and affirmed his conviction.

62. Now we proceed to examine as to whether the accused-respondents have committed the offences punishable under Sections 504 and 506 IPC. It is proved from the statements of PW-1 and PW-2 that there was a property dispute going on between the parties and PW-2 and the deceased had gone to the house of the accused-respondents to ask him to stop the work till the Police carried out an enquiry. Upon hearing about the report given by PW 2 to the Police, the accused-respondents Shiv Narayan and Pradeep got enraged and started hurling abuses. Jaswant forbade the accused-respondents from abusing. Being annoyed by it, the accused-respondent no. 2 Pradeep exhorted to his father accused-respondent no. 1 Shiv Narayan that "bade panch bante hain, goli maar do". Keeping in view all the facts and circumstances of the case, this would amount to criminal intimidation and insult with intent to provoke breach of peace and, therefore, the accused-respondents no. 1 and 2 are liable to be convicted and sentenced under Section 504 and 506 IPC also.

63. Lastly, the learned Counsel for the accused-respondents submitted that the accused-respondent no. 1 is presently aged about 70 years and he has remained in Jail for about 3 years and, therefore, keeping in view the aforesaid facts, this Court should take a lenient view towards him.

Order

64. In view of the aforesaid discussion, the instant appeal stands allowed. The judgment and order dated 16-09-2008 passed by the learned Additional District and Sessions Judge (Court No. 1), Hamirpur in Sessions Trial No. 137 of 2005 under Sections 302/34, 504, 506 IPC, Police Station Rath, District Hamirpur, acquitting the accused-respondents is set aside and reversed. The accused-respondents no. 1 and 2 are held to be guilty of committing offences punishable under Sections 302/34, 504 and 506 IPC, in Case Crime No. 22 of 2005, Police Station Rath, District Hamirpur.

65. Keeping in view the fact that the incident occurred on 28-01-2005 and a period of more than 17 years has elapsed since the incident, as also the fact that presently the accused respondent no. 1 Shiv Narayan is aged about 70 years, the accused-respondents are awarded the following sentences: -

(i) For the offence under Section 302/34 I.P.C., the accused-respondent no. 1 Shiv Narayan son of Maheshwari Prasad is sentenced to undergo simple imprisonment for life and the accused-respondent no. 2 Pradeep son of Shiv Narayan is sentenced to undergo rigorous imprisonment for life and further, both the accused-respondents are sentenced to pay a fine of Rupees Twenty Thousand Only (Rs. 20,000/-) each and if they fail to pay the amount of fine, they shall have to undergo simple imprisonment for a further period of six months in lieu thereof.

(ii) For the offence under Sections 504 IPC, the accused-respondent no. 1 Shiv Narayan son of Maheshwari Prasad and the accused-respondent no. 2 Pradeep son of Shiv Narayan are sentenced to undergo simple imprisonment for a period of two years and to pay a fine of Rupees Two Thousand Only (Rs. 2,000/-) and if they fail to pay the amount of fine, they shall have to undergo imprisonment for a further period of one month in lieu thereof.

(iii) For the offence under Sections 506 IPC, the accused-respondent no. 1 Shiv Narayan son of Maheshwari Prasad and the accused-respondent no. 2 Pradeep son of Shiv Narayan are sentenced to undergo simple imprisonment for a period of three years and to pay a fine of Rupees Five Thousand Only (Rs. 5,000/-) and if they fail to pay the amount of fine, they shall have to undergo imprisonment for a further period of two months in lieu thereof.

(iv) All the aforesaid sentences will run concurrently.

66. The accused-respondent no. 1 - Shiv Narayan son of Maheshwari Prasad and the accused-respondent no. 2 - Pradeep son of Shiv Narayan are directed to surrender before the learned Chief Judicial Magistrate, Hamirpur within a period of 15 days from the date of this order to serve out the sentences awarded to them. In case they do not surrender within the stipulated time, learned Chief Judicial Magistrate, Hamirpur shall commit them to custody as per law.

67. As the judgment and order dated 16-09-2008 passed by the learned Additional District and Sessions Judge (Court No. 1), Hamirpur in Sessions Trial No. 137 of 2005 under Sections 302/34, 504, 506 IPC, Police Station Rath, District Hamirpur, has been set aside in Government Appeal No. 2239 of 2009, there is no need to pass any order in Criminal Revision No. 3459 of 2008 filed against the same judgment and order as the revision has become infructuous.

68. Let a certified copy of this judgment and order be sent to the Court concerned.

Order Date -

(Subhash Vidyarthi, J.) (Vivek Kumar Birla, J.)