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TMI Blog2001 (9) TMI 1182X X X X Extracts X X X X X X X X Extracts X X X X ..... reported to have died. The present appeal has been filed, as a matter of right, under Section 2(A) of the Supreme Court Enlargement of Criminal Appellate Jurisdiction Act, 1971. It has been contended on behalf of the appellants that the impugned judgment being contrary to law and facts deserves to be set aside. It is argued that the High Court was not justified in interfering with the well considered order of acquittal passed by the trial court and the prosecution has miserably failed to connect the accused with the commission of the crime. The prosecution witnesses were not only interested and biased but had deposed contrary to the prosecution case as initially discussed in the First Information Report. The material contradictions in the deposition of the witnesses cannot be reconciled, making their deposition untrustworthy. It is further contended that as the prosecution had failed to prove the charges beyond doubt, the appellants were entitled to the benefit of all reasonable doubts. In the present case occurrence is stated to have taken place on 27th June, 1977 at 5.00 p.m. in Village Khiria Madhukar, Police Station Usehat, District Badayun(U.P.), the FIR of which was lod ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... es of the occurrence. Dr.G.D. Bhaskar (PW2) was produced to prove the injuries sustained by Ram Saran (PW4). S.I. Onkar Singh (PW3) proved the registration of the FIR and G.D. entry about the sending of 6 sealed bundles of the case property to the Sadar Malkhana. Dr.M.C. Sharma (PW7) is the doctor who had conducted the post-mortem on the dead bodies of Munshi Singh and Itwari. Constable Yogendrapal Singh (PW8), Constable Gur Prasad (PW9) are formal witnesses who took the dead body of Ram Murti to the mortuary for post mortem. Police Constable Devinder Kumar (PW10) is a formal witness. Dr.N.P. Singh (PW11) was examined to prove the injuries sustained by Ram Murti deceased and Ram Dayal, injured. PW15 is the investigating officer and the other witnesses are of only formal nature. As noted earlier, the trial court vide its judgment dated 19.8.1978 acquitted the accused persons and the High Court vide the judgment impugned convicted 9 out of 11 accused persons against whom the State had filed the appeal. We have heard the learned counsel of the parties at length and critically examined the testimony of all the witnesses particularly the statements made by PWs 1, 4, 5 and 6 who we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... conviction is irretrievable. To take another instance, if an innocent person is sent to jail and undergoes the sentence, the scars left by the miscarriage of justice cannot be erased by any subsequent act of expiation. Not many persons undergoing the pangs of wrongful conviction are fortunate like Dreyfus to have an Emile Zola to champion their cause and succeed in getting the verdict of guilt annulled. All this highlights the importance of ensuring, as far as possible, that there should be no wrongful conviction of an innocent person. Some risk of the conviction of the innocent, of course, is always there in any system of the administration of criminal justice. Such a risk can be minimised but not ruled out altogether. It may in this connection be apposite to refer to the following observations of Sir Carleton Allen quoted on page 157 of The Proof of Guilt by Glanville Williams, Second Ediction: I dare say some sentimentalists would assent to the proposition that it is better that a thousand, or even a million, guilty persons should escape than that one innocent person should suffer; but no responsible and practical person would accept such a view. For it is obvious that if ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... at the view taken by the learned Sessions Judge was also reasonably possible. Once this is so, there can be no question of reversing the order of acquittal. To the same effect are the judgments in Tara Singh v. State of Madhya Pradesh [AIR 1981 SC 950] and Kora Ghasi v. State of Orissa [AIR 1983 SC 360]. In the instant case, after appreciating the evidence produced by the prosecution, the trial court dealt with various aspects of the matter and after negating the existence of a criminal conspiracy, the motives and noticing inherent contradictions, concluded: In view of the above discussion, it would appear that the prosecution has not come with the true story. The occurrence most probably took place in the night at 9 or 10 p.m. and the assailants could not be recognised. The presence of witnesses Bhamarpal Singh and Latoori is doubtful as discussed above, and that the presence of Pt. Ram Saran is also doubtful. His injuries are also suspicious as discussed above. It would appears that Ram Dayal was present but he could not recognise the assailants on account of darkness of night. He also could not identify Brijpal and Veer Sahai at the test identification parade although ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... se testimony was concededly contrary to the case of the prosecution as projected in the FIR. It is true that the statements of PWs 1, 4, 5, and 6 cannot be thrown out merely on the ground that they are partisan witnesses or have any enmity with some of the accused persons. However, the testimony of such witnesses require to be judged with more circumspection. The case of the prosecution, as sought to be proved at the trial, appears to be different than the one as narrated in the FIR. When the testimony of eye-witnesses is totally different from the story set out in the FIR, the trial court cannot be held to have taken a view which was not at all possible. The view taken by the trial court could have been disturbed only if there were compelling reasons. We do not find any compelling reason noticed by the High Court while setting aside the order of acquittal. The trial court had further found that the prosecution had come with a new case that the injuries to the deceased were not caused by the gun shots but with weapons like ballam, kanta and lathi. In this regard the trial court had noticed: To explain the absence of the gun shot injuries, the prosecution at the time of the e ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er erroneous or highly improbable in the light of the statements of the witnesses and the record produced before the trial court. The Panchanamas prepared immediately after the occurrence showed that the deceased had received gun shot injuries but when examined by the doctor and in the post mortem report no such injury was noticed on the body of any of the deceased persons. The dead body of Munshi Singh was not found on the roof of any house as mentioned in the FIR but in the courtyard of the house of Jogender with injuries including (i)On right eye-brow clotted blood injury of bullet, (ii) on head in between both eye brows injury bullet injury black blood clot . The panchanama pertaining to the dead body of Mulaim Singh also showed the following injuries: (i) On left chest injury near armpit at two places bloodstained gunshot injury. (ii) On left thigh towards left side bloodstained injury of bullet. The post-mortem report pertaining to Munshi Singh did not show any of the gun shot injury and the cause of death is stated to be shock and haemorrhage. The same is the position so far as the post-mortem report pertaining to Mulaim Singh is concerned. We feel that the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X
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