9911796707
TMI Blog2004 (9) TMI 712X X X X Extracts X X X X X X X X Extracts X X X X ..... rds their house. Accused Shiv Kumar was driving a tractor while Akshay Kumar and Anil Kumar were sitting on the trolley of the tractor with double barrel gun in the hands of each of them. They wanted to take the tractor through the land of the complainant. In front of the house and the land of the complainant and his brothers, there is some open land. Gram Pradhan Akshay Kumar wanted to make path (Rasta) over the said land. He filed a case in the Munsif's court about 21-22 years ago for the said purpose. He won the case. The accused persons bore enmity for that reason. Before three years of the present occurrence accused Anil Kumar and Shiv Kumar went to the plot of the complainant and wanted to assault by fire. The complainant had lodged a report in the police station to this effect. On 27.2.1980 at about 3.00 p.m. Kunji Lal brother of the complainant and Kali Charan, nephew of the complainant (each of them described as deceased by name) were keeping potatoes in bags in the west of their house. They asked the accused persons that since there was no path in front of house of the complainant where they are taking the tractor. They stopped the tractor in front of the house of d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al was taken to have been abated so far as they are concerned and was continued against the accused-appellant Anil Kumar. 6. The High Court found that the approach of the trial court was not correct. In view of the clear and cogent evidence of the eye-witnesses, the trial court should not have come to a conclusion based on surmises and presumptions about the inability of Shiv Kumar and Akshay Kumar to commit the crime. The injuries on the accused and Navin Chandra were of very superficial nature. Interestingly, though the incident took place on 27.2.1980, medical records so far as accused-appellant Anil Kumar and Navin Chandra are concerned came into existence on 29.2.1980. The stand that when Navin Chandra was attacked Anil Kumar came and fired in defence, was too fragile to warrant acceptance as was wrongly done by the trial court. High Court noticed that neither Navin Chandra nor Virendra, who it was claimed by the defence were present all through, had not been examined as defence witnesses. The High Court also noticed that without any basis the trial court held that at least four gunshots were made for causing injuries on the two deceased persons. The plea regarding private ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... dation. The High Court has rightly discarded the plea of the defence about non-explanation of injuries which were clearly superfluous in nature. PWs were unarmed at the time of assaults. Accordingly it was submitted that the High Court was justified in reversing the acquittal. 9. There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused h ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... circumstance from which the Court can draw the following inferences: (1) that the prosecution has suppressed the genesis and the origin of the occurrence and has thus not presented the true version; (2) that the witnesses who have denied the presence of the injuries on the person of the accused are lying on a most material point and, therefore, their evidence is unreliable; (3) that in case there is a defence version which explains the injuries on the person of the accused assumes much greater importance where the evidence consists of interested or inimical witnesses or where the defence gives a version which competes in probability with that of the prosecution one. In Mohar Rai's case (supra) it is made clear that failure of the prosecution to offer any explanation regarding the injuries found on the accused may show that the evidence related to the incident is not true or at any rate not wholly true. Likewise in Lakshmi Singh's case (supra) it is observed that any non-explanation of the injuries on the accused by the prosecution may affect the prosecution case. But such a non-explanation may assume greater importance where the defence gives a version which c ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... case. (See Surendra Paswan v. State of Jharkhand (2003)12SCC360 . 12. The trial court's conclusions were patently based on surmises and conjectures and were contrary to the evidence. There was no basis for the trial court to conclude that accused-appellant Anil Kumar acted in exercise of right of private defence. Merely because such a statement was made in the statement recorded under Section 313 of the Code that was not sufficient. The High Court did not endorse the view as this plea was not established and the material on record was on the contrary established that Anil Kumar had fired the shot resulting in the death of one of deceased persons. The presumption that FIR was ante-timed was on an erroneous reading of the evidence of PW-3. The trial court completely lost sight of the fact that PW-3 was an illiterate rustic lady and minor variance in her statement should not be given primacy when the evidence itself was recorded long time after and it should not have been made basis for coming to a conclusion that the FIR was ante- timed. It is trite law that when oral evidence is credible and cogent, medical evidence is contrary, is inconsequential. Only when the medical evid ..... X X X X Extracts X X X X X X X X Extracts X X X X
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