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TMI Blog2008 (1) TMI 981X X X X Extracts X X X X X X X X Extracts X X X X ..... , all the aforesaid sentences were ordered to run concurrently. 2. The relevant facts leading to the filing of this appeal may be narrated, in a nutshell, which are as follows: - 3. The case of the prosecution, inter alia, was that on 15th of October, 1977, one Ram Charan Singh, Station Officer (S.O.) - Police Station Sikanderpur Vaish, Assistant Sub-Inspector (A.S.I.) Gaya Prasad along with constables Bhanwar Singh, Lakhan Singh, Mulaim Singh, Dina Nath, Jamuna Prasad, Rajendera Singh and Head Constable Hajari Singh were returning to the Police Station from the Patrol duty. When they reached near village Nagla Abdal at about 8 p.m., a reliable informer notified the S.O. Ram Charan Singh that the gang of Punni Habda shall assemble in the grove of Pandit Lakhan Singh of Rani Damer at about 1:00 am to commit dacoity and would loot Nagla Karan. On receiving this information, the S.O. and the A.S.I. had called for two witnesses, namely, Nakdey and Sri Pal from village Nagla Abdal and also procured their licenced firearms through Constable Bhanwar Singh. Thereafter, they came to village Rani Damer wherefrom witnesses, namely, Ranvir, Ram Prakash, Deo Singh and Soran we ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... prepared in accordance with the dictation given by the S.O. and a case was registered under Sections 399 and 402 of the IPC and separate cases were registered under Sections 25 and 4/25 of the Arms Act. The investigation was completed and the charge sheets were prepared and submitted to the concerned Magistrate who had committed the case to the Court of Sessions. 4. The accused/respondents after appearance pleaded not guilty and claimed to be tried. It was contended by the accused/respondents that they were falsely implicated in the case. The witnesses and Thakurs took Begar from them and when they declined to comply with their demand, they connived with the police to implicate them. The witnesses were the Dalals of the Police and the Police had enmity against them. The main ground of attack of the accused/respondents was the non-examination of the S.O., which, according to them, was fatal. No injuries were caused to the police party and therefore, the case was not probable. The respondent, Ram Bharosey, was examined as a witness and he sought to show that he was not on good terms with the co-accused Munshi and one Ram Chadra who was the brother of another co-accused Ram ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... could not point out any infirmity in the prosecution case and the case stood fully proved beyond doubt. On the aforesaid findings made by the Additional Sessions Judge, VIth Court at Etah, the accused/respondents were convicted under sections 399 and 402 of the IPC and also under section 27 of the Arms Act. The High Court, as mentioned herein earlier, had set aside the conviction on appeal. While setting aside the conviction, the High Court, inter alia, recorded the following findings: - (i) The S.O. Ram Charan Singh was not examined, although the FIR of the case was dictated by him. (ii) The I.O. of the case was also not examined at the trial. (iii) None of the adjoining grove holders or land holders were said to have been present in the grove at the time of occurrence although the site plan prepared by the investigating officer shows that the grove of Lakhan Singh was surrounded on three sides by groves. (iv) The accused/respondents were said to have been caught on the spot without any resistance or struggle on their part. (v) There were discrepancies in the examination-in-chief and cross examination of PW 1 as to the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ubmissions made by them and also the judgment of the High Court as well as of the Additional Sessions Judge, VIth Court at Etah and the other materials on record, including the findings and the reasoning given by the Additional Sessions Judge as well as the High Court, we do not find any ground to hold that the High Court was not justified in setting aside the order of conviction and passing an order of acquittal in appeal. While doing so, the High Court had given due reasons after considering the entire materials and the evidence on record and had also given the reasons as to why the non-examination of the S.O. and the I.O. was fatal in the facts and circumstances of the case. In our view, the High Court was justified in holding that it was necessary for the prosecution to prove the case made out under Section 399 and 402 of the IPC beyond reasonable doubt and to examine the S.O. and the I.O. for unfolding the prosecution story. The High Court had also given its reasons, in our view, correctly, that the evidence of PW 1 and PW 2 on which, strong reliance was placed by the Additional Sessions Judge in order to pass an order of conviction could not be relied upon. On the question of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d also in view of the glaring discrepancies pointed out by the High Court in its judgment, as noted herein earlier, we are, therefore, in agreement with the High Court that in the facts and circumstances of the present case and on the evidence on record, the order of acquittal was reasonably possible to arrive at and that being the position, we do not find any reason to interfere with the judgment of acquittal in the exercise of our jurisdiction under Article 136 of the Constitution. At the risk of repetition, we may also reiterate that the High Court, after consideration of all the evidence and materials on record had come to a conclusion of fact that the prosecution story as made out to convict the accused/respondents under Sections 399 and 402 of the IPC could not at all be believed and therefore, the order of conviction of the Additional Sessions Judge, VIth Court at Etah was needed to be interfered with. There is one further aspect of this matter. In our view, the High Court was justified in drawing an adverse inference against the prosecution as it had failed to examine the adjoining grove holders or land holders who were said to have been present in the grove at the time of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uld have been one of recording a conviction. It was further held in that decision that as a necessary corollary, it was obligatory on the High Court, while reversing an order of acquittal, to consider and discuss each of the reasons given by the trial court to acquit the accused and then to dislodge those reasons and if the High Court failed to discharge this obligation, it would constitute a serious infirmity in the judgment of the High Court. Reliance was also placed on the decision of this court in Kunju Muhammed alias Khumani and another Vs. State of Kerala [(2004) 9 SCC 193] wherein this court has held that the judgment of the trial court acquitting the accused cannot be reversed by the High Court when the findings of the trial court were neither perverse nor they could not be reached by a reasonable person and the view taken by the trial court was the only possible view. However, in the present case, we are not concerned with the situation, which had arisen in the aforesaid two decisions. In this case, the Additional Sessions Judge, VIth Court at Etah, convicted the accused/respondents and such order of conviction was set aside in appeal by the High Court. Therefore, in our v ..... X X X X Extracts X X X X X X X X Extracts X X X X
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