9911796707
TMI Blog2021 (5) TMI 1006X X X X Extracts X X X X X X X X Extracts X X X X ..... he time of his arrest. Similar suggestions were made to other witnesses and the same were denied. Therefore, as such, it cannot be said that the prosecution has failed to explain the injury on the said Accused. Even the aforesaid aspect has been considered in detail by the High Court and the said statement has been appreciated by the High Court on re-appreciating the entire evidence on record, more particularly the medical evidence and even the deposition of the doctors examined by the prosecution as well as by the defence. When the High Court has come to the conclusion that the findings recorded by the learned trial Court while acquitting the Accused were perverse and even contrary to the evidence on record and/or misreading of the evidence, the High Court has rightly interfered with the judgment and order of acquittal passed by the learned trial Court and has rightly convicted the Accused. In the present case, the Appellant-original Accused No. 4 was specifically named right from the very beginning in the FIR. He has been attributed the specific role. The same has been established and proved from the evidence of PW4 (even if the deposition of PW2 is for the time being ignored) ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Officer. He recorded the statements of the witnesses. He prepared the Panchnama at the spot. He arrested the Accused Murlidhar Pathak on 07.10.1981 at about 4:00 a.m. after a little chase and during the course of his arrest police personnel inflicted injuries at his person near bridge of river Fagawa. 2.2. Dr. Nisar Ahmad conducted the post-mortem. He noticed the following ante-mortem injuries on the body of the deceased: i) Depressed fracture of skull with fracture of left parietal bone. In fact all the bones were broken. Brain matter had been liquefied. ii) Multiple abrasion on left pinna. iii) Incised wound over the scalp 5 inch above ear T.U. directed, 2 inch x 2 inch. Brain matter going out. iv) Lacerated wound above the occipital, 2 inch x 2 inch. Brain matter going out. v) Incised wound over the left occiput, 2 inch x 1 inch. vi) Incised wound over lateral aspect of palm, 1 inch x 1 inch x muscle deep. vii) Lacerated wound on the posterior aspect of skull, 1 inch x 1 inch x muscle deep. viii) Incised wound over the proximal of the occipital. ix) Incised wound over the left parietal bone, 1 inch x 1 inch x brain cavity deep with brain matter goin ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... High Court reversing the order of acquittal and convicting the Appellant-original Accused No. 4 for the offences Under Section 302/34 Indian Penal Code, original Accused No. 4 has preferred the present appeal. 5. Learned Advocate appearing on behalf of the Appellant has made the following submissions: i) that the High Court has exceeded in its jurisdiction in reversing the well-reasoned judgment and order of acquittal passed by the learned trial Court and consequently convicting the Accused; ii) that the learned trial Court, as such, committed no error in acquitting the Accused; iii) that the motive has not been established and proved; iv) that all the prosecution witnesses-so called eyewitnesses-PW1 to PW4 are all related and interested witnesses; v) that no independent witness has been examined; vi) that as rightly observed by the learned trial Court, PW2 PW4 are the chance witnesses; vii) that from the medical evidence there is no injury found from the fired arm and therefore it disproves the case of the prosecution; viii) that the prosecution has failed to explain the injury on one of the Accused-Murlidhar Pathak; ix) that the medical evidence d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d that even in the 313 statement, the Appellant-original Accused No. 4 has also stated about the enmity. It is submitted that therefore even according to the Appellant-original Accused No. 4, there was an enmity between the deceased and the Accused. 6.5. It is further submitted that one of the grounds on which the learned trial Court acquitted the Accused was that no independent witness has been examined. It is submitted that when the witnesses who are examined are found to be reliable and trustworthy, mere non-examination of the independent witnesses shall not be fatal to the case of the prosecution. 6.6. It is further submitted that one another reason given by the learned trial Court which has been elaborately dealt with by the High Court was that neither there was any firearm injury nor the firearm was recovered. It is submitted that in the deposition of the eyewitnesses it has come on record that as per the case of the prosecution there was a fire shot but it was in air and no injury was sustained by the firearm. 6.7. It is submitted that in the present case the eyewitnesses PW2 PW4 have fully supported the case of the prosecution and therefore the High Court has rig ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P. (2009) 16 SCC 98 and Ram Singh v. State of H.P. (2010) 2 SCC 445) 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) ... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the Accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial; (3) the right of the Accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. 14. The aforesaid principle of law has consistently been followed by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of M.P. (2002) 4 SCC 85 and State ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) 20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the Accused. 18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court. The circumstances include: (SCC p. 286, para 28) (i) The High Court's decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court's conclusions are contrary to evidence and documents on record; (iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court's judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) This Court must always give proper weight and consideration to the findings of the High Court; (vi) This Court would be extremely ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d an occasion to consider the scope of Section 378 Code of Criminal Procedure and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under: 31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on re-appreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the Accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) 10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This Rule will not be applicable i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case. 31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999) 3 SCC 309, after observing that though there is some substance in the grievance of the learned Counsel appearing on behalf of the Accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P. AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the Appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule. (emphasis supplied) 7.4. In the case of Umedbhai Jadavbhai (supra), in paragraph 10, it is observed and held as under: 10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to re-appreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... of the Appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 7.6. In the case of K. Gopal Reddy v. State of Andhra Pradesh (1979) 1 SCC 355, this Court has observed that where the trial Court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule. 8. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is to be considered whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Court? 8.1. The grounds on which the learned trial Court acquitted the Accused are narrated by the High Court in the impugned judgment, which are as under: 1. The motive assigned to Respondents to commit the murder of Ram Aasare Pathak may be the reason of their false implication in this case; 2. Badri Prasad (P.W. 1) and Lal Mani (P.W. 3) are the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... The High Court has rightly observed that where there are clinching evidence of eyewitnesses, mere non-examination of some of the witnesses/independent witnesses and/or in absence of examination of any independent witnesses would not be fatal to the case of the prosecution. 10.1. In the case of Manjit Singh v. State of Punjab (2019) 8 SCC 529, it is observed and held by this Court that reliable evidence of injured eyewitnesses cannot be discarded merely for reason that no independent witness was examined. 10.2. In the recent decision in the case of Surinder Kumar v. State of Punjab (2020) 2 SCC 563, it is observed and held by this Court that merely because prosecution did not examine any independent witness, would not necessarily lead to conclusion that Accused was falsely implicated. 10.3. In the case of Rizwan Khan v. State of Chhattisgarh (2020) 9 SCC 627, after referring to the decision of this Court in the case of State of H.P. v. Pardeep Kumar (2018) 13 SCC 808, it is observed and held by this Court that the examination of independent witnesses is not an indispensable requirement and such non-examination is not necessarily fatal to the prosecution case. 11. Applyi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cts and circumstances of the case. In the said case, defence of the Accused was that there was a free fight between both the parties and therefore the question arose with respect to the right of the private defence and/or who was the aggressor. Even otherwise in the said decision also, this Court referred to paragraph 17 of the decision of this Court in the case of Takhaji Hiraji v. Thakore Kubersing Chamansing (2001) 6 SCC 145 in paragraph 18, which reads as under: 17. ... the view taken consistently is that it cannot be held as a matter of law or invariably a Rule that whenever the Accused sustained an injury in the same occurrence, the prosecution is obliged to explain the injury and on the failure of the prosecution to do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the Accused persons by the prosecution witnesses may affect the prosecution case, the court has to be satisfied of the existence of two conditions: (i) that the injury on the person of the Accused was of a serious nature; and (ii) that such injuries must have been caused at the time of the occurrence in question. Non-explanation of injuries assumes greate ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that angle, the weight to be attached to the aspect of non-explanation of the injuries should be considered. The decisions above-cited would make it clear that there cannot be a mechanical or isolated approach in examining the question whether the prosecution case is vitiated by reason of non-explanation of injuries. In other words, the non-explanation of injuries of the Accused is one of the factors that could be taken into account in evaluating the prosecution evidence and the intrinsic worth of the defence version. 13. At this stage, it is required to be noted that in the present case even considering the defence on behalf of the Accused when the deceased came near the door of the house of the one of the Accused Murlidhar Pathak, he was using abusive language and there were a quarrel and the other village people might have caused injuries on the deceased. Therefore, the incident is not disputed by the Accused. The place of occurrence of the incident has been established and proved by the prosecution as per the case of the prosecution. The Accused have failed to lead any evidence that the incident had occurred near the door of the house of one of the Accused. Even the place o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... read the entire para 9 as a whole, it is very difficult to accept that he admitted that he was not present in the village in the morning and therefore his presence can be doubted. Be that as it may, even if for the time being evidence of PW2 is not considered and/or excluded, there is an overwhelming evidence in support of the prosecution in the form of PW4. His presence is not doubted. He is found to be trustworthy and reliable. His deposition is consistent with the allegations in the FIR. There is no reason to doubt his trustworthiness. Therefore, even the Appellant can be and is rightly convicted relying upon the deposition of PW4, who is an eyewitness to the incident. 16. Now let us consider the case and/or defence on behalf of the Appellant-original Accused No. 4. It was the case on behalf of the Accused that the incident occurred at the door of the house of the Accused Murlidhar Pathak and that Murlidhar Pathak, another Accused, was being hurdled abuses and assaulted by the deceased and the mob inflicted injuries on the person of the deceased. Except the above statement, the same has not been established and proved by the defence by leading cogent evidence, more particular ..... X X X X Extracts X X X X X X X X Extracts X X X X
|
