TaxTMI 
TaxTMI 
2006 (1) TMI 660
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....ing attacked, Sabdar Bano (PW-6), Noorbano (PW-7), Baby (PW-9) and Annobai (PW-10) rushed to the rescue of Sadruddin. They were also beaten up by the appellants and their associates. Sabdarbano received injuries on her head and body. Annobai received injuries on the head. Baby and Noorbano received injuries on their hands. By then, a Police van came near the spot. On seeing it, the appellants and others took to their heels. Kanizbano (PW-3) who was sitting outside her house and who witnessed the entire incident, along with some others, took the injured persons to the hospital. Kanizbano also lodged an FIR (Ex. P-28) within half an hour of the incident in Police Station, Dhar, naming all the 27 persons. They were tried by the 3rd Additional Sessions Judge, Dhar, for the offences under Sections 147, 148, 307/149, 324/149 and 323/149 of the Indian Penal Code. Appellant Nos. 1 and 2 and one Nazir Khan were also charged under Section 25/27 of the Arms Act. 3. The trial court by judgment dated 16.8.1995 acquitted all 27 accused primarily on three grounds. The first is that all the eye- witnesses belonged to Sadruddin group who had enmity with the accused and, therefore, their statemen....
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.... of any perversity or omission to consider material evidence or apparent error in law, the judgment of the Trial Court was not open to interference in an appeal against acquittal. Lastly, it is contended that when only four persons are found guilty, conviction invoking Section 149 IPC is not warranted. 7. The circumstances in which an appellate court will interfere with the finding of acquittal recorded by a Trial Court are reiterated in Bhim Singh v. State of Haryana 2003CriLJ857 , thus: "Before concluding, we would like to point out that this Court in a number of cases has held that an appellate court entertaining an appeal from the judgment of acquittal by the trial court though entitled to reappreciate the evidence and come to an independent conclusion, it should not do so as a matter of routine. In other words, if from the same set of evidence two views are possible and if the trial court has taken one view on the said evidence, unless the appellate court comes to the conclusion that the view taken by the trial court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial court is not based on any mater....
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....ingers were fractured. Noorbano, PW-7, another daughter of Sadruddin stated that appellant Nos. 1 to 4 and other accused had come running and Kallu hit her father on the head using a sword. She also stated that when she, PW-6, PW-9 and PW-10 went to rescue her father, they were all beaten up by all the accused and that her hand was injured. Baby (whose father is a nephew of Sadruddin) examined as PW-9, stated that appellants 1 to 4 chased Sadruddin; that Kallu hit him with a sword on the head and Shafi hit him on the face with a sword, and that all of them beat Sadruddin. She also stated that she was hit by someone on right hand. Annobai (PW-10), niece of Sadruddin stated that Kallu and others came to the house of Sadruddin, shouting "kill/cut" and Kallu, Bhuria and Altaf hit Sadruddin with sword/s. She also states that she was hit by a sword on her head by someone. 12. It is true that only Sadruddin clearly stated as to who hit him with what weapon and at which part of his body. The other four eye-witnesses (PWs 6, 7, 9 and 10) have not stated who landed the blows on them. All of them, however, identify Kallu as hitting Sadruddin on the head. In addition, Baby (PW-9) has stated....
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....ns assaults the intended victims, it may not be necessary that all of them have to take part in the actual assault. 15. The trial court was of the view that absence of an independent eye-witness in the background of previous enmity, was a serious lacuna. But what the trial court failed to notice is that previous enmity was not denied and the prosecution case is that Kallu and other accused came in a group to Sadruddin's house specifically to beat him up. Therefore, the mere fact that there was enmity between Sadruddin and Kallu cannot be a ground to reject the clear evidence of the eye-witnesses -- PWs 4, 6, 7, 9 and 10 who were the injured, and PW-3. The High Court has, therefore, rightly held that the appellants and other accused were the assaulting party; that they had come together with weapons and had acted jointly and had run away after injuring Sadruddin and four female members of his family. 16. We find that the High Court has not interfered in the matter in a routine manner merely because a different view is possible. The High Court has interfered rightly, in our view, because the trial court unreasonably disbelieved the evidence of six eye-witnesses on insuffici....
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....e the allegation of participation is confined to five known persons and there is doubt about the identity of even one. But, where a large number of known persons (such as eighteen, as is the case before us), are alleged to have participated and the Court acts on the principle that it is better to err on the side of safety, so that no injustice is done to a possibly wrongly implicated accused, and benefit of doubt is reaped by a large number, with the result that their acquittal, out of abundant caution, reduces the number of those about whose participation there can be no doubt to less than five, it may not be really difficult at all, as it is not in the case before us, to reach the conclusion that, having regard to undeniable facts, the number of participants could not possibly be less than five." [Emphasis supplied] 19. The accused before the trial court were 27 in number. PW- 4 specifically named 22 persons and further named the four out of them who landed him the blows. PW-3 names 12 persons who came as a group. Other eye-witnesses also clearly stated that the appellants with other accused who were present in court had come to attack Sadruddin. As noticed above, the....