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PETITIONER: SRI JINNAT MIA & JINU MIA AND OTHERS

       Vs.

RESPONDENT: STATE OF ASSAM

DATE OF JUDGMENT:       12/12/1997

BENCH: M.M. PUNCHHI, M. SRINIVASAN

ACT:

HEADNOTE:

JUDGMENT:                       J U D G M E N T Srinivasan, J.      The main  contention of the appellants is that the High Court has chosen to reverse the order of acquittal passed by the trial  judge when  the latter  is not perverse or wholly unreasonable. In  support of  the same  the decision in Tota Singh &  Anr. Versus  State of  Punjab (1987)  2 SCC  529 is cited. A  Bench of  two judges  has held  that in  an appeal against acquittal,  the jurisdiction  of the appellate court is circumscribed  by the  limitation that no interference is to be  made with  the order  unless the approach made by the lower court  to the consideration of evidence is vitiated by some manifest  illegality or  the conclusion recorded by the court below  is such  which could  not  have  been  possibly arrived at  by any  court acting  reasonably and judiciously and is  liable therefore to be characterised as perverse. It has also been held that where two views are possible and the view taken  by the  court below  is plausible, the appellate court cannot  legally interfere  with an  order of acquittal even if  it is  of the  opinion that  the view  taken by the trial court is erroneous. 2.   The power  of the  appellate court in an appeal against an order of acquittal was the subject of a decision of three member Bench  of this  court as  early as  in Sanwat Singh & Ors. Versus  State Of Rajasthan AIR 1961 S.C. 715. The Bench considered the matter in detail and said:-      "The  foregoing  discussion  yields      the  following  results  :  (1)  an      appellate court  has full  power to      review the  evidence upon which the      order of acquittal is founded : (2)      the principles  laid down  in  Sheo      Swarup’s case, 61 Ind App 398: (A)R      1934 PC  227 (2)  afford a  correct      guide  for  the  appellate  court’s      approach to  a case in disposing of      such  an   appeal;  and   (3)   the      different phraseology  used in  the      judgments of  this court,  such as,      (i)  "substantial   and  compelling

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    reasons",    (ii)     "good     and      sufficiently cogent  reasons",  and      (iii)  "strong  reasons",  are  not      intended to  curtail the  undoubted      power of  an appellate  court in an      appeal against  acquittal to review      the entire  eavaidence and  to come      to its own conclusion; but in doing      so  it  should  not  only  consider      eavery matater  on record  having a      bearing on   the  questions of fact      and the  reasons given by the court      below in  support of  its order  of      acquittal in  its  arriving  ata  a      conclusion  on   those  facts,  but      should also  express those  reasons      in its  judgment which  lead it  to      hold that  the  acquittal  was  not      justified". 3.   In that  case, the  court also  dealt with the scope of Article 136  of the  constitution and  pointed out  that the practice of  the court  is not  to interfere on questions of fact except  in exceptional  cases when  the finding is such that it shocks the conscience of the court. 4.   Recently this Bench had occasion to rofer to the ruling in Betal Singh Versus State of M. P. (1996) 8 S.C.C. 205 and point   out that  the High Court has full powers i an appeal to review the entire evidence and come to its own conclusion unless the  matter depended on the demeanour of the witness. [See judgment  dated 9.12.1997  in Civil  Appeal No.  888 of 1996 Rajendra Mahton versus State of Bihar] 5.   Bearing the  above principles  in mind,  we  shall  now consider the facts of the present case. The prosecution case was the following:      On 2.6.1987  after mid night the appellants entered the bed room in which Chand Mia, the deaceased was sleeping with his wife  Jamuna Khatun,  the complainant  and killed him by hacking him  with  ram dao and other dangerous weapons, When the complainant tried to save her husband, she suffered some injuries. She  went to  the police  station  situated  at  a distance of  4 kilo metres by walk and presented a complaint written with the help of PW 4, a petition-writer around 2.15 A.M. She  had mentioned  the names  of the appellants in the P.I.R. She  was sent to a dispensary near the police station for treatment  for her  injuries. After  investigation,  the appellants  stood   charged  with   offences  under  Section 324/459/302/34 I.P.C. 6.   The prosecution  examained nine  witnesses. The  doctor who treated  the complainant  for her  injuries was PW2. The complainant was  examined as  PW 3  and she was the only eye witness. PW  7 was a son of the deceased and the complainant who was  sleeping in  the same  house in  another room.  The trial court  acquitted the accused. The reasons given by the trial court were as follows: (a)  The evidence  of PW3 cannot be belieaved as her version regarding a  lamp in  the bedroom  at the time of occurrence was discrepant.  She had described it as ’chaki’ at one time and ’lamp’  at another and it was not noted by the I.O. when he prepared the sketch of the place of occurrence. (b)  PW3 had  not satisfactorily  proved that  she  suffered injuries at the time of occurrence. (c)  An eight year old son who was sleeping in the same room in another  bed was  not examined. Some  persons who came to the place  of occurrence  immediately  thereafter  and  some persons named in the chargesheet were not exained.

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(d)  There were  proceedings under  Section  107  Crl.  P.C. against some  of the  appellants  at  the  instance  of  the deceased and  thus the complainant has a motive to implicate them falsely. (e)  The evidence  of PW 4 showed that he prepared a written complaint   in the  first instance  which contained  several other names  as accused  but it  was torn  and the complaint which was lodged as F.I.R. was prepared. 7.   The High  Court considered  all the  above reasons  and held  them   to  be   unsustainable.  The  High  Court  also considered the  evidence on  record and found that there was no reason to disbelieave the evidence of PW3 who was the eye witness. It was held that the findings of the Sessions Judge were unreasonable  and could not be sustained. Therefore the High Court  convicted the  appellants under  Sections 302/34 and sentenced  them  to  rigorous  imprisonments  for  life, besides a  fine of  Rs. 300/- each. The appellants were also convicted under  Section 324  but did  not pass any separate sentence. 8.   Learned counsel  for the  appellants laid stress on the reasoning of  the trial  court and  contended that  the High Court ought  not to  have interferred  with the same. Before considering the  contentions raised  by him,  it  should  be pointed out  that the  trial court  has  only  repeated  the arguments of  Mr. Sharma,  one  of  the  advocates  for  the accused more  and not analysed the matter itself. In several paragraphs the  trial court  has only  referred to  what Mr. Sharma pointed out and left it there without considering the relevant evidence  on its own. In any event, the trial court set out  the crucial  aspect of  the matter in the following words:-      "The   case,   undoubtedly   is   a      peripheral one,  in the  sense that      if   we   accept   the   story   of      identification   of   the   accused      persons  o   the   basis   of   the      statements  made  by  the  solitary      eye-witness  P.W.   3  Mst.  Jamuna      Khatun, we  must hold  the  accused      persons  guilty   of  the  charges,      otherwise we have no legal right to      send    them    for    life    long      incarceration or  to  the  gallows,      for, the  charges inter  alia  also      include Section 302/34 I.P.C." 9.   But the  trial court  chose to dis-believe PW3 and held against the  prosecution. The  High Court  has accepted  the evidence of PW 3 as it did not find any infirmity therein. 10.  Learned counsel  for the  appellants has contended that PW 3’s  evidence is unbelievable in as much as she has given different versions  with regard  to the existence of lamp in the room  at the time of occurrence. He has made much of her using the  words ’chaki’ and ’lamp’ alternatively. It is his argument that a ’lamp’ is different from ’chaki’ and neither was noticed  at the  premises  soon  after  the  occurrence. According to learned counsel a lamp was purchased and handed over to  the police  later on  the next  day and  that  this circumstance goes  a long  way to  make the prosecution case doubtful. There  is  no  basis  in  the  evidence  for  this argument. The  discrepancy, if  at all is insignificant. The High Court  has found  that the lamp was seized by police on the next  day. It  is quite  natural that a lamp or chaki is kept in  the room  where children  are sleeping.  it is  the evidence of  PW 3  that her  children  were  suffering  from dysentry and  she had  to take  them frequently  outside the

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room for  making them  attend to the calls of nature and for that reason she had kept a lamp on the table in the room. In the circumstances  of the  case  when  the  accused  persons entered that room, it would have been easier for the inmates of the  room to identify the new entrants as the former were accustomed to the dim light at that time inside the room. If the accused  who had  come from  outside could  identify the victim, whom  they hacked  with the  deadly  weapons,  there would have  been no  difficulty for  PW 3 in identifying the accused. We do not find anything wrong in her evidence which makes it incredible or unacceptable.      11.  It is next contended that the injuries suffered by her are  superficial and  could not  have been caused by the assailants of her husband. It is argued that she had clasped her husband  and if  that was  true, she would have suffered some serious injuries. There is no merit in this contention. The assailants  were only keen on attacking the deceased and not PW  3. The  injuries on  her body  depended on the exact position in  which she was holding her husband. There can be no doubt  that she did suffer injuries and she had been sent to the  hospital near  the police station immediately, after she reported the occurrence at the police station. PW 2, the doctor examined her and noticed the injuries. He has entered the same in the Injury Register. There were four injuries on her body and the doctor found that the injuries were all one to two  hours old caused by sharp weapon. There is no cross- examination of the said doctor. It is stated that the injury report was  obtained from  the doctor  only on 9.7.1987 i.e. after  more than a month. Nothing turns on that circumstance as the  evidence makes out that the doctor examined her soon after the  occurrence on  3.6.1987 itself  and  entered  the injuries in the injury register. The report given by him was only copied  from the  injury registrer.  Hence, There is no merit in this contention. 12.  It is next argued that two statements of complaint were prepared. In the first, names of about 13 or 14 persons were mentioned and  the said  statement was torn off. A fresh one was drawn  and in  the second  statement the appellants were implicated. For  this purpose  reliance  is  placed  on  the evidence of  PW 4.  The said witness was declared hostile in the trial  court. The High Court has considered his evidence in detail  and found  that his   version that two statements were prepared and the first was torn off is not  acceptable. We do  not find  any error  in this  view taken  by the High Court. The  solitary evidence  of PW  4 cannot be accepted t hold that  there were  two written  complaints and  the  one prepared earlier was torn off. 13.  It is next argued that PW 3 had motive to implicate the appellants   as there  were proceedings  under  Section  107 against the  appellants at  the instance of the deceased. We do not  accept this  contention. In our opinion the evidence of PW  3 cannot  be rejected  on the said ground. Soon after the occurrence  a son  of the  deceased who  was sleeping in another room  of the same house rushed to the room where his parents were  sleeping. He  was informed  by PW3  about  the assailants. It  cannot be  imagined  that  as  soon  as  the occurrence  took  place,  she  thought  of  implication  the appellants falsely.  Those persons  were known  to her for a long time  and PW  7  also,  knew  them  already.  Thus  the evidence of PW 7 corrborates that of PW 3 and the High Court has rightly accepted the same. 14.  It is  next contended  that other  persons mentioned in the chargesheet  were not examined by the prosecution. It is also argued  that an  eight year old son of the deceased who was sleeping  in the same room was not examined. Raliance is

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placed upon  the judgment  in The  State of U.P. Versus Hari Prasad  & Ors. (1974) 3.S.C.C. 673. It was held on the facts of that  case that failure of prosecution to examine persons mentioned in the FIR was detrimental to the prosecution. The question before  us in  the present  case  is  only  whether evidence of  the eye witness has to be accepted or not. Once it is  found by  the High  Court that the evidence of PW3 is acceptable, there  is no  merit in the contention that other persons have not been examined. 15.  It is next argued that there is a considerable delay in forwarding the  report to  the Magistrate  from  the  Police Station. We  find that  the report was forwarded on the next day i.e.  4.6.87. In the facts and circumstances of the case we do  not find that there is any delay which could create a doubt in  the case of the prosecution. Reliance is placed by the learned  counsel for the appellant in Arjun Marik & Ors. Versus State  of Bihar,  1994 Supp.  (2)  S.C.C.  372  while taking into account several circumstances which vitiated the prosecution case  the Court  referred also to the delay of 3 days in forwarding the report to the Magistrate. Even in the said case it is pointed out that quite often there are valid reasons for  the delay  in the despatch of the FIR and it is not always  a circumstance  on the basis of which the entire prosecution case  may be  said to  be fabricatred but it all depends upon  the facts and circumstances of each case where the circumstance  of delay  may read to serious conclusions. In the  present case  we find  that the  delay of one day in forwarding the report does not vitiate the prosecution case. 16.  We have  gone through  the entire  record and satisfied ourselves that the reversal of the order of acquittal by the High Court  is justified.  The conclusion of the trial court has been rightly found to be unreasonable. In the result the appeal fails and is hereby dismissed.