We have heard the learned counsel
for the parties. Out of the ten accused persons before the Court of Sessions, six were
convicted for the offences under Sections 148, 201 and 302 of the Indian
Penal Code and separate punishment for each of the offences was
prescribed, the maximum being imprisonment for life with a fine of
Rs.5,000/- and in default thereof, to undergo further imprisonment of six
months under Section 302 of the Indian Penal Code. The said conviction and
sentence has been set aside by the High Court vide100 impugned judgment and order dated
20.11.2008. Aggrieved by the acquittal of all the six accused, the120 appellant has preferred this
appeal.
The sole
submission of the learned counsel for the appellant is that in matters
where the accused persons are convicted and sentenced by the trial court, the
appellate court is normally slow in upsetting the conviction, more particularly
in the light of the evidence on record, especially, that of the eyewitness. There is no dispute to the fact that
there was serious enmity between the two rival groups which were in fact interrelated.
The dispute200 between the two groups was quite old commencing in the
year 1986 in connection with the access to the public road which was being
blocked by one party. The said dispute was compromised but still
continued to persist240 which resulted in the murder of Kishan. In retaliation to the
above dispute, it appears that the rival group now killed Ramesh. In
connection with the above killing of Ramesh, an FIR was allegedly lodged on
04.11.2000 by the appellant but it was registered on 05.11.2000.
According to the
FIR, the incident300 occurred on 04.11.2000 at 7 pm. At that time Ramesh was
returning from duty and the appellant was returning from Faridabad. They met at
scooter stand in Badshahpur and the appellant joined Ramesh on motorcycle to
proceed towards the village Rampura. When they reached Tikli Road, they saw a
car parked on the road360 side which chased their motorcycle and pushed it to the left
side of the road forcing the appellant and Ramesh to fall in the bushes.
The appellant noticed the accused persons alighting from the vehicle and
thereafter attacking Ramesh with400 knife, iron rod etc. The accused persons took Ramesh in injured
condition in their car and left. A report about the said incident in writing
was submitted to the in-charge of Badshahpur Police Post under the signatures
of the appellant. It may be pertinent to point out that the appellant had
worked with Delhi Police and at least three of the accused persons were also in
Delhi Police.
We have considered
the findings of the two courts below and have480 also gone through the ocular
testimony of PW-9 who is the sole eyewitness. His testimony reveals that on500 05.11.2000 at about 2 pm when they
reached the Tikli forest with the investigation team, they found a dead
body burning which had almost perished. The fire was extinguished and
from there one copper ring and the buckle of a belt were recovered which were
identified to be that of Ramesh.
The appellant
happened to be the sole eyewitness but he had neither seen anyone killing his
son Ramesh nor he had deposed that he had seen anyone burning the victim Ramesh.
Therefore, he is not actually an eyewitness either to the killing or to
the600 burning of the deceased
Ramesh though he may be an eyewitness to the incident which took place
on 04.11.2000 at 7 pm wherein a car had chased their motorcycle, pushed them
towards the roadside making them fall in the bushes, thereupon assaulting the
deceased Ramesh and then taking him away in an injured condition in the car.
It may be noted that he has not deposed anything as to why he
had not tried to intervene and save his son from assault or stop the accused
persons from taking him away in the car. He himself700 had not received any injuries. The
statement that he could not do so on account of the threats
extended by720 the accused persons appears to be a bald statement as no one in a
situation where his son is being assaulted and carried away would remain a mere
spectator. The appellant stated in the FIR that the accused assaulted
his son with a knife and iron rod. He didn't mention about the use of a pistol
by the accused. However, the police have recovered empty cartridge. Cause of
death as per postmortem is also firing from close range.
In view800 of the above situation and the other evidence on record, the very
presence of the appellant even during the incident of 04.11.2000 appears to be doubtful.
He appears to have met Ramesh on the scooter stand840 per chance whereupon he took lift
from Ramesh to travel towards the village. It may not be out of
context to mention that the appellant, a sole eyewitness, happens to be the
most interested witness being the father of the deceased and having long enmity
with the group to which the accused persons belong, therefore, his
testimony was to be900 examined with great caution and the High Court was justified in
doing so and in doubting it so as to uphold the conviction on his solitary
evidence.
In the light of
the evidence on record, both versions as was taken by the trial court and that
by the High Court may appear to be the possible views. However, the conviction960 has to be based on the evidence
which proves the accused guilty beyond reasonable doubt. The prosecution in
this case has failed to prove the guilt of the accused both by circumstantial
evidence and by means of evidence of the1000 eyewitness. In respect of
circumstantial evidence, the chain of events is not complete whereas the
presence of eyewitness is also doubtful. Thus, we are of the opinion that the
view taken by the High Court in extending the benefit of doubt to the accused
persons appears to be the most plausible view. Accordingly, we do
not deem it necessary to interfere with the opinion expressed by the High
Court. The appeal lacks merit and is dismissed.1076
