REPORTABLE                IN THE SUPREME COURT OF  INDIA

         CRIMINAL APPELLATE JURISDICTION   

 CRIMINAL APPEAL NO. 200   OF 2004

STATE OF U.P. ..  APPELLANT

vs.

RAMA KANT & ORS. ..  RESPONDENTS

J U D G M E N T

Dr.  ARIJIT  PASAYAT,  J.

Heard  learned  counsel  for  the  State  and  learned  counsel  for  the  

respondents.

By the impugned judgment the High Court has directed acquittal of  

the  respondents  who  faced  trial  for  alleged  commission  of  offences  

punishable under Section 302 read with Section 149 of the Indian Penal Code,  

1860 (in short `IPC'), Section 323 read with Section 149 IPC. Some others were

also sentenced for offences relatable to Section 148 and 147 IPC.

The  occurrence  took  place  on  23/10/1979.   According  to  the  

prosecution, the eye witnesses were PW.1, the complainant, PW.4-the mother  

and PW.5 the wife of the complainant.  Though PW.3 was examined as alleged  

eye witness, he did not support  

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the prosecution version.  The defence version was that it was PW.1 who was

responsible  for  causing  death  of  the  deceased  who  happened  to  be  his  

brother.  The trial Court, as noted above, found the evidence to be cogent and  

credible and recorded conviction.

In  appeal  the  stand  taken  was  that  the  presence  of  PW.4  was  

doubtful. In the First Information Report lodged,  there was no mention about  

PW.1 and  PW.4 having witnessed the occurrence. Additionally, according to  

the so-called eye witnesses, large number of injuries were caused by bricks  

bats  and  sharp  edged  weapons.   The  medical  evidence  did  not  disclose  

injuries which could have been possible by sharp edged weapons and bricks.  

The  High  Court  found that  there  were  several  unexplained  circumstances  

which cast doubt on the credibility of the prosecution version and directed  

acquittal.   

Learned counsel for the appellant-State submitted that the evidence  

of  the  eye witnesses  should  not  have been  discarded  by the  High Court.  

Learned  counsel  for  the  respondent  supported  the  judgment  of  the  High  

Court.

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We  find  that  the  High  Court  has  referred  to  a  large  number  of  

circumstances  as  to  the credibility of  the prosecution  version.  Firstly,  the  

non-seizure  of  a  blood  stained  axe  belonging  to  PW.1  at  the  spot  of  

occurrence  was  a  highly  suspicious  circumstance.   The  presence  of  

informant or PW.4 has not been indicated in the First Information Report.  

The High Court  also  noticed that  it  was  not  the informant  but  one of  the  

accused  persons  Jai  Narain  who  had  made  arrangement  for  shifting  the  

deceased  in  injured  condition  to  the  hospital.   All  these  circumstances  

certainly have relevance and the High Court has rightly placed reliance on  

them to hold that the accused persons were not guilty.  In that view of the  

matter  High  Court's  judgment  cannot  be  said  to  be  perverse  to  warrant  

interference.   

The appeal fails and is dismissed.

It is to be noted that accused No.1 has died during the pendency of  

the appeal before the High Court.

The bailable warrants executed in terms of the order dated 9/2/2009  

shall stand discharged.

                        ................ .J.             (Dr. ARIJIT PASAYAT)

            ...................J.

                                       (D.K. JAIN)

          .....................J.                                        (Dr. MUKUNDAKAM SHARMA) New Delhi, March 31, 2009.