TaxTMI 
TaxTMI 
2021 (5) TMI 1006
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....er Yamuna situated near his village. When the deceased reached near Basic School, Nagarwar, all the four Accused suddenly emerged out from the Bajra field of Ram Sajiwan. Accused Murlidhar Pathak and Gurudutt Pathak were armed with lathis, Dharmraj Pathak was armed with spear and Ramraj Pathak was armed with pistol. The deceased was attacked by the Accused with spear and lathis. The deceased fell down on earth. They crushed his head with lathis. On hue and cry, first informant Satrughan Pathak, his brother Ramsukh Pathak, Lalmani Pathak and Shiv Shankar, who were already there at a short distance, rushed towards the deceased whereupon Accused Ramraj Pathak fired a shot from his pistol towards the deceased and all the assailants ran away along with their weapons. The deceased received his instantaneous death at the spot. 2.1. Satrughan Pathak, son of the deceased, lodged an FIR against all the Accused persons for the offences punishable Under Section 302 r/w 34 Indian Penal Code. The FIR was investigated by one Sukhram Sonkar, the Investigating Officer. He recorded the statements of the witnesses. He prepared the Panchnama at the spot. He arrested the Accused Murlidhar Pathak on ....
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.... and PW4, sons of the deceased may be termed as chance witnesses; place of occurrence is not proved by the prosecution and there was no occasion for the deceased to reach at the alleged spot; absence of fire injuries at the person of the deceased; and prosecution has not explained the injuries on the Accused Murlidhar Pathak. 3. Feeling aggrieved and dissatisfied with the order of acquittal passed by the learned trial Court, the State preferred appeal before the High Court. During the pendency of the appeal, Accused Nos. 1 to 3 died/expired and therefore the appeal against the Appellant herein-original Accused No. 4 was proceeded further. That on re-appreciation of the entire evidence on record, by the impugned judgment and order, the High Court has allowed the appeal and has set aside the order of acquittal passed by the learned trial Court and consequently has convicted the Appellant herein-original Accused No. 4 for the offences Under Section 302/34 Indian Penal Code and has sentenced him to undergo life imprisonment. 4. Feeling aggrieved and dissatisfied by the impugned judgment and order passed by the High Court reversing the order of acquittal and convicting the Appella....
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....te has vehemently submitted that in the facts and circumstances of the case, the High Court has not committed any error in reversing the judgment and order of acquittal and consequently convicting the Accused. 6.1. It is submitted that being the first appellate court against the judgment and order of acquittal passed by the learned trial Court, the High Court is justified in reappreciating the entire evidence on record and coming to its conclusion. Reliance is placed on the decision of this Court in the case of Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC 228. 6.2. It is submitted that by the impugned judgment and order the High Court has considered in detail the grounds on which the learned trial Court acquitted the Accused and having found that the grounds on which the Accused have been acquitted are not tenable at law and are just contrary to the evidence on record and are perverse, the High Court has rightly convicted the Accused. 6.3. It is further submitted that in the present case the prosecution has established and proved the actual place of incident/occurrence and has explained the injuries on one of the Accused-Murlidhar Pathak. 6.4. It is submitted tha....
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....d again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P. (2003) 1 SCC 761, Narendra Singh v. State of M.P. (2004) 10 SCC 699, Budh Singh v. State of U.P. (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 10....
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....ate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the Accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 16. In Ghurey Lal v. State of U.P. (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the Accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in ....
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....f the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P. (2009) 10 SCC 636). (emphasis supplied) 7.2.2. It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be inter....
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....ved in para 8 as under: (SCC p. 416) 8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the j....
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....he prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal Under Section 417 Code of Criminal Procedure came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established Rule that the presumption of innocence of the Accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the Accused person starts in the trial court continues even up to the appellate stage an....
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.... perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well established Rule that the presumption of innocence of the Accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the Accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. ....
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....hough Respondents have not adduced any evidence in their defence to prove the fact that deceased sustained injuries at the door of Murlidhar Pathak or the injuries at his person was caused by mob or public, or Murlidhar Pathak received injuries at his own door at the instance of deceased, yet in any case, the possibility of exercise of right of private defence by Respondents cannot be said to be improbable. Each and every aforesaid ground has been elaborately dealt with by the High Court and on reappreciation of the entire evidence on record the High Court has specifically come to the conclusion that the findings recorded by the learned trial Court are perverse and thereafter the High Court has interfered with the judgment and order of acquittal passed by the learned trial Court. 9. So far as the submission on behalf of the Accused that no motive has been established and proved is concerned, the High Court has elaborately dealt with the same. The High Court has rightly observed that when there is a direct evidence in the form of eyewitnesses and the eyewitnesses are trustworthy and reliable, absence of motive is insignificant. In the present case, in the 313 statement itself,....
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.... the decision of this Court in the case of Dashrath Singh v. State of U.P. (2004) 7 SCC 408 is concerned, at the outset, it is required to be noted that the investigating officer-PW7 in his examination-in-chief in paragraph 6 has specifically stated that when they tried to arrest the said Accused at 4:00 a.m. in the early morning near the bridge, the said Accused tried to run away; after scuffle he was arrested and that during that scuffle and arrest, he sustained injuries. A suggestion was put to him in the cross-examination that at the time of arrest the Accused Murlidhar Pathak did not receive any injury, however, the same has been specifically denied that it is not true that he did not receive injury at the 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 examine....
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....ght between both the parties. In such a situation, the question as to the genesis of the fight, that is to say, the events leading to the fight and which party initiated the first attack assumes great importance in reaching the ultimate decision. It is here that the need to explain the injuries of serious nature received by the Accused in the course of same occurrence arises. When explanation is given, the correctness of the explanation is liable to be tested. If there is an omission to explain, it may lead to the inference that the prosecution has suppressed some of the relevant details concerning the incident. The Court has then to consider whether such omission casts a reasonable doubt on the entire prosecution story or it will have any effect on the other reliable evidence available having bearing on the origin of the incident. Ultimately, the factum of non-explanation of injuries is one circumstance which has to be kept in view while appreciating the evidence of prosecution witnesses. In case the prosecution version is sought to be proved by partisan or interested witnesses, the non-explanation of serious injuries may prima facie make a dent on the credibility of their evidenc....
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....idence is inconsistent with the ocular testimony is concerned, it is required to be noted that it was never the case of the prosecution that there was a firearm injury on the person of the deceased. Even as per the evidence of the witnesses, when after sustaining the injuries of lathi and spear, the deceased fell down on the earth when other persons started coming and while leaving from that place, one of the Accused Ramraj Pathak fired his pistol towards the deceased. It was never the case of the witnesses that bullet hit the deceased. On the contrary, Shatrughan Prasad Pathak, PW2 has specifically stated that the deceased has not sustained any firearm injury, although Ramraj Pathak has fired at him. 15. We have carefully gone through the depositions of PW2 & PW4 who can be said to be the star witnesses and they are the eyewitnesses to the incident. From the deposition of PW2 (Hindi version, para 9), learned Counsel appearing on behalf of the Appellant has vehemently submitted that the said witness has specifically admitted that at the night of the incident, he was at 291, Malviya Nagar and after receiving the information he reached at the spot. However, there is an overwriting....