Case: Basudeo Yadav Vs. Surendra Yadav &amp; Others

SCC 508 ) it was observed as follows :"After giving our careful consideration to the facts and circumstances of the case and the evidence adduced, we do not find any reason to interfere with the well-reasoned judgment passed by the High Court in convicting appellant-2 Vijaykumar. So far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW1 being a close relation of both the accused, there was no difficulty for PW 1 to identify them. The accused were also known to the other witness for which he could also identify them. So far as appellant- Vijaykumar is concerned, PW1 had physically prevented him from causing further injury on the deceased and there was a tussle between the two. Hence there was no difficulty for PW1 to identify Accused 2- Vijaykumar. His deposition gets corroboration from the deposition of PW3 who had seen Vijaykumar at the place of occurrence. PW3 had not seen Vijaykumar causing any injury on the deceased because by the time PW3 came near the place of the incident and noticed the incident, Vijaykumar had been prevented by PW1 and his knife had fallen on the ground." 10. Again in Israr v. State of U.P. (2005 (9) SCC 616 ), it was observed as follows: "Coming to the plea relating to non-probability of identification, the evidence of PW-3 is very relevant. He has stated that the occurrence took place at the time of isha prayers which are concluded at about 9.30 p.m. There was light of the moon as well as of the neighbouring houses and the electric poles in the lane. The date of occurrence was 11th day of Lunar month and the place of occurrence is near the mosque as well as many houses close by. Therefore, identification was possible. Further a known person can be identified from a distance even without much light. The evidence of PW-3 has also been corroborated by the evidence of others. Evidence of PWs 3 to 5 proves that identification was possible." 11. Therefore, the Trial Court was justified in holding that identification was possible. The hypothetical conclusions of the High Court which are based on surmises and conjectures on the other hand are unsupportable.12. So far as aspect of last seen is concerned, in Munivel v. State of T.N. (2006 (9) SCC 394 ) this Court has held as under: "27. Doctor, PW 11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after the incident took place. We do not find any material contradiction between the ocular evidence and medical evidence. The genuineness or otherwise of the said accident registers is not in question. Correctness of the entries made therein is not in issue. Even no suggestion has been given to the doctor that the entries made in the said accident registers were not correct."28. Only because the investigating officer was negligent and did not make any attempt to recover the cut fingers of PW 3, the same by itself would not be sufficient to discard the consistent evidence of all the eyewitnesses." 13. Similarly, in State of U.P. v. Satish (2005 (3) SCC 114 ) it was noted as follows: "22. The last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2." 14. So far as the finding relating to undigested food is concerned, the doctor said that death had occurred within 24 hours of the consumption. Since the time is not given, the presence of undigested food is of no consequence. So far as going to wrong police station is concerned, the witness categorically as to why they went to the particular police station. Their specific stand was that they had gone to the Superintendent of Police who had asked them to go to the particular police station, because the occurrence relating to kidnapping had taken place within the jurisdiction of that police station. In any event immediately after the FIR was lodged at the police station the same was sent to the correct police station. Therefore, there was no question of delay in lodging of FIR as held by the High Court. PW1 specifically stated about the injuries sustained by pistol. Doctors evidence shows that the injuries were caused by firearms. One thing is significant that the High Court has no where stated that the analysis of evidence and the conclusions arrived at by the Trial Court were erroneous. Without recording such a finding, the High Court was not justified in drawing different conclusions without indicating any reason to justify the same. Such a course is impermissible. Even if a different view is possible to be drawn, it should be specifically held that the view taken by the Trial Court was not supportable by evidence. It would not be possible for the High Court to act on surmises and conjectures and disturb the findings recorded by the Trial Court.15. Above being the position, the judgment of the High Court is set aside and the judgment of the Trial Court is restored.16.

Decision (1 = appeal accepted, 0 = rejected): 1

Explanation:
1[ds]In the instant case, the time was about 7 P.M. in the evening in the month of April. The position was again reiterated in Bharasi and others v. State of M.P. (2002(7) SCC 239). It was inter alia noted as follows:"In relation to the identification of the accused in the darkness, the High Court has clearly stated that in the month of April, the sun sets at about 7.00 p.m. in the evening, the accused were known to the witnesses and could be identified even in faint darkness. Here again, the High Court has relied upon the decision of this Court in the case of Nathuni Yadav v. State of Bihar (1998 (9) SCC 238 ). The High Court has also noticed that the enmity between the deceased and the appellants was not disputed."21. In Krishnan and Another v. State of Kerala (1996 (10) SCC 508  ) it was observed as follows :"After giving our careful consideration to the facts and circumstances of the case and the evidence adduced, we do not find any reason to interfere with the well-reasoned judgment passed by the High Court in convicting appellant-2 Vijaykumar. So far as the contention of insufficient light is concerned, we may indicate that in an open field on a cloudless starry night, there was no difficulty in identifying the victim by the assailants because of existence of some light with which identification was possible. PW1 being a close relation of both the accused, there was no difficulty for PW 1 to identify them. The accused were also known to the other witness for which he could also identify them. So far as appellant- Vijaykumar is concerned, PW1 had physically prevented him from causing further injury on the deceased and there was a tussle between the two. Hence there was no difficulty for PW1 to identify Accused 2- Vijaykumar. His deposition gets corroboration from the deposition of PW3 who had seen Vijaykumar at the place of occurrence. PW3 had not seen Vijaykumar causing any injury on the deceased because by the time PW3 came near the place of the incident and noticed the incident, Vijaykumar had been prevented by PW1 and his knife had fallen on the ground.Again in Israr v. State of U.P. (2005 (9) SCC 616 ), it was observed asto the plea relating to non-probability of identification, the evidence of PW-3 is very relevant. He has stated that the occurrence took place at the time of isha prayers which are concluded at about 9.30 p.m. There was light of the moon as well as of the neighbouring houses and the electric poles in the lane. The date of occurrence was 11th day of Lunar month and the place of occurrence is near the mosque as well as many houses close by. Therefore, identification was possible. Further a known person can be identified from a distance even without much light. The evidence of PW-3 has also been corroborated by the evidence of others. Evidence of PWs 3 to 5 proves that identification was possible.Therefore, the Trial Court was justified in holding that identification was possible. The hypothetical conclusions of the High Court which are based on surmises and conjectures on the other hand are unsupportable.12. So far as aspect of last seen is concerned, in Munivel v. State of T.N. (2006 (9) SCC 394 ) this Court has held asDoctor, PW 11, examined them at about 1 a.m. on 17.3.1994, that is, immediately after the incident took place. We do not find any material contradiction between the ocular evidence and medical evidence. The genuineness or otherwise of the said accident registers is not in question. Correctness of the entries made therein is not in issue. Even no suggestion has been given to the doctor that the entries made in the said accident registers were not correct."28. Only because the investigating officer was negligent and did not make any attempt to recover the cut fingers of PW 3, the same by itself would not be sufficient to discard the consistent evidence of all the eyewitnesses.Similarly, in State of U.P. v. Satish (2005 (3) SCC 114 ) it was noted asThe last seen theory comes into play where the time-gap between the point of time when the accused and the deceased were seen last alive and when the deceased is found dead is so small that possibility of any person other than the accused being the author of the crime becomes impossible. It would be difficult in some cases to positively establish that the deceased was last seen with the accused when there is a long gap and possibility of other persons coming in between exists. In the absence of any other positive evidence to conclude that the accused and the deceased were last seen together, it would be hazardous to come to a conclusion of guilt in those cases.In this case there is positive evidence that the deceased and the accused were seen together by witnesses PWs. 3 and 5, in addition to the evidence of PW-2.So far as the finding relating to undigested food is concerned, the doctor said that death had occurred within 24 hours of the consumption. Since the time is not given, the presence of undigested food is of no consequence. So far as going to wrong police station is concerned, the witness categorically as to why they went to the particular police station. Their specific stand was that they had gone to the Superintendent of Police who had asked them to go to the particular police station, because the occurrence relating to kidnapping had taken place within the jurisdiction of that police station. In any event immediately after the FIR was lodged at the police station the same was sent to the correct police station. Therefore, there was no question of delay in lodging of FIR as held by the High Court. PW1 specifically stated about the injuries sustained by pistol. Doctors evidence shows that the injuries were caused by firearms. One thing is significant that the High Court has no where stated that the analysis of evidence and the conclusions arrived at by the Trial Court were erroneous. Without recording such a finding, the High Court was not justified in drawing different conclusions without indicating any reason to justify the same. Such a course is impermissible. Even if a different view is possible to be drawn, it should be specifically held that the view taken by the Trial Court was not supportable by evidence. It would not be possible for the High Court to act on surmises and conjectures and disturb the findings recorded by the Trial Court.15. Above being the position, the judgment of the High Court is set aside and the judgment of the Trial Court is restored.