07 May 2121

The Court cannot force the prosecution to force which witness they have to produce, for that prosecution has full liberty - Supreme Court of India

Case : Achhar Singh v. State of Himachal pradesh Criminal Appeal no. 1140-1141 of 2010

Court : Supreme Court of India

Bench : Chief Justice S. A. Bobde, Justice Surya Kant and Justice Anuradha Bose

Decided on : 07 May 2121

Relevant Statutes

Sections 147, 148, 452, 506, 302, 323 and 326 of Indian Penal Code, 1860

Brief Facts and Procedural History

1. The prosecution story starts from the night of 23.02.1996 when complainant Netar Singh’s wife Meera Devi-P.W.11 and mother Swari Devi attended the marriage in a nearby village at the house of the bridegroom, to whom Budhi Singh’s daughter got married. Owing to their boycott by Budhi Singh and other villagers, Netar Singh and his family didn’t attend any function at Budhi’s house.

2. About 8 PM in the night, when they were having Dham, Budhi Singh, Achhar Singh and some other villagers shouted for the complainant and his father Beli Ram- PW12 to come out. When they were about to open the door, they sensed the intention to kill the complainant party. The appellant and his companions started pelting stones, due to which they had to rush back to the house and bolted their door. But assailants broke the door and entered the house bearing arms. Budhi Singh and Achhar Singh had axes, while other accused were armed with sickles, spears and sticks. Allegedly Budhi Singh hit Swara Devi on her head with Axe due to which she died on spot and Achhar Singh hit Beli Ram with an axe due to which he later fainted.

3. The complainant was also beaten allegedly by another village with sticks but he somehow managed to escape to the roof, and Meera Devi begged for mercy and they all left her threatening that they all will be killed if they tried to leave the house. Some villagers including Govind Ram D.W.2 and Bahadur intervened and called on the accused to stop the violence and this force the accused to leave the place of the incident.

4. At around 2:00 AM, the complainant informed Pradhan of Gram Panchayat Beasa Devi- DW1 to inform her about the assault and she suggested filing a complaint in the police station. Due to all the phone lines being dead and no buses available at the night, the complainant walked down 24 Kms to Jogindernagar Police Station and lodged FIR No. 36 of 1996 against the 16 villagers including the appellant at 9:30 AM on 24-02-1996. On Investigation, police found only 7 of the alleged 16 accused involved in the attack and filed charge sheets for offences under sections 147, 148, 452, 506, 323, 302 and 326 of Indian Penal Code, 1860.

5. The matter was heard by the Trial Court in length and Additional Sessions Judge, Mandi acquitted all of them. Against which appellant preferred an appeal before the High Court, and High Court after closely looking into the pieces of evidence, set aside the acquittal of Budhi Singh and Achhar Singh. Against which appellant-accused preferred an appeal before the Honorable Supreme Court.

Issues of the Case

Whether the High Court was justified in exercising its power under section 378 of Code of Criminal Procedure, 1973 in interfering with the acquittal orders of the Trial Court?

The Observations of the Court

1. The Honourable Supreme Court referred to the Hammurabi Code and Roman Law for the principle that Burden of Proof weighs on the Plaintiff, that is, the accused is presumed innocent until proven guilty. Also, noted that this presumption got doubled when a competent court analyses all evidences and acquits the accused. Court also referred to a self-restraint policy wherein if two reasonable and possible views arise, the one favourable to the accused is adopted while respecting the trial court’s proximity to the witness and direct interaction with the evidence.

2. The Honourable Supreme Court also referred to a catena of judgments like Chandrappa v. State of Karnataka, (2018) 5 SCC 790 and Raveen Kumar v. State of Himachal Pradesh, wherein it held that, if two views are possible, the High Court ought not to interfere with the judgment of trial court but this principle cannot be stretched to see whether or not the view adopted by the Trial Court is possible.

3. The Honourable Supreme Court after looking into the testimony of all the eyewitnesses and Dr. D.D. Rana- PW3, who conducted the post-mortem of the deceased and medically examined the injured, noted down that, even if the court does not look into the exaggerated statement regarding the axe blow given to the deceased, the allegation that Budhi Singh entered the house and hit Swari Devi with an axe on her head and Swari devi died on spot, is consistent and totally undisputed throughout the FIR and testimony of Prosecution Witnesses. Thus, the Trial Court’s confusion regarding the death of Swari Devi is totally unwarranted. Thus Budhi Singh’s conviction for Section 302 of the Indian Penal Code, 1860 is justified as it is very much probable that a blow of axe on the head of an old lady will cause her death. And also the attack of Achhar Singh on Beli Ram was caused by sharp and blunt-edged weapons is also well corroborated, thus his conviction under sections 326 and 323 Indian Penal Code, 1860 is also justified.

4. Further, Honourable Supreme Court noted down that appellant’s contention that the testimony of PW1, PW11 and PW12 was wholly unbelievable and inconsistent with the evidence of the Doctor and Post-mortem report is not acceptable. The Honourable Supreme Court looked into the contention regarding the exaggerated version of injuries suffered by the deceased. The Honourable Supreme Court referred to the meaning of word ‘Exaggerated’ and ‘False’ from Cambridge Dictionary, Merriam-Webster, Oxford Dictionary and found that the meaning of word ‘exaggerated’ is ‘to enlarge beyond bounds or the truth’ and word ‘false’ is “wrong; not correct or true. The Honourable Supreme Court pointed out that in exaggerated statements there is both truth and falsity and it is very well settled that to make a mountain out of a molehill, the molehill shall have to exist primarily.

5. The Honourable Supreme Court referred to its previous judgment, Hari Chand v. State of Delhi, 1996 SCALE (2)16, in which the court held that while looking into witnesses in a criminal trial, especially eye witnesses, the court has to shift false allegations from the truth. If some part is not found reliable then it is the duty of the court to scrutinize another part with great caution and see whether the acceptable parts can be corroborated from other evidence available on record.

6. The Honourable Supreme Court pointed out that trial court being overwhelmed with many contradictions failed to identify material evidence, and cited the judgment of Babu v. State of Kerala, (2010) 9 SCC 189, where Honourable Supreme Court noted down that, “ while dealing with an acquittal, the appellate court has to arrive at a finding as to whether the view of the trial court was perverse, and also whether the trial court had failed to take into account admissible evidence.”

7. On the question of the non-examination of many bystanders is also self-explanatory as the complainant has prior litigation with some people in the village to most of them boycotted their family and for the Honourable Supreme Court relied on the judgment of Sarwan Singh v. State of Punjab, wherein court was of the view that “the court cannot force the prosecution to force which witness they have to produce, for that prosecution has full liberty. At the most, the court can draw an adverse inference if some material witness is withheld. It is very much settled principle that prosecution is bound to produce only those witnesses as are necessary for clearing the prosecution narrative.”

8. Coming to the doubt cast on the actual time of death, the court relied on PW3- Dr. DD Rana who also deposed that the time between the death of the deceased and the Injury was “within 5-10 minutes”, thus supporting the prosecution witness deposing that she died on spot owing to the injuries.

9. With respect to Narinder Singh, the Honourable Supreme Court noted that it is very hard to believe that complainant who walked 7 hours to file a complaint in police station would forget to mention the fatal blow on his mother by Narinder Singh as well, thus, this contradicts his testimony in the court with regard to the belated allegation against Narinder Singh.

10. The Honourable Supreme Court considered the exact time at which police reached the house of the complainant as deposed by PW11 as minor contradictions and thus will not defeat the prosecution story considering PW16- ASI Jaisi Ram deposition that he reached at 1 PM on 24-02-1996. Looking into the point that there was no reason for Budhi Singh to start a fight with his neighbour on the day of his daughter’s wedding, this does not rely on as High Court pointed out that the marriage of Budhi Singh’s daughter took place two days prior to the date of the incident.

The Decision Held by the Court

1. The Honourable Supreme Court held that the Trial Court was wrong in acquitting Budhi Singh and Achhar Singh.

2. Achhar Singh held liable for offences under sections 452, 323, and 326 of the Indian Penal Code, 1860.

3. Budhi Singh was held liable for Sections 302 and 452 of the Indian Penal Code, 1860.

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