16 September 2004
Supreme Court
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ANIL KUMAR Vs STATE OF U.P.

Bench: ARIJIT PASAYAT,C.K. THAKKER
Case number: Crl.A. No.-000616-000616 / 1999
Diary number: 7634 / 1999
Advocates: Vs PRAVEEN SWARUP


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CASE NO.: Appeal (crl.)  616 of 1999

PETITIONER: Anil Kumar                                                               

RESPONDENT: State of U.P.                                                    

DATE OF JUDGMENT: 16/09/2004

BENCH: ARIJIT PASAYAT & C.K. THAKKER

JUDGMENT: J U D G M E N T

ARIJIT PASAYAT, J.

Acquittal of the appellant (hereinafter referred to as the  ’accused’) by the trial court was reversed by the High Court by the  impugned judgment. Three persons, namely, Akshay Kumar, Anil Kumar and  Shiv Kumar faced trial for alleged commission of offence punishable  under Sections 302 and 302 read with Section 34 of Indian Penal Code,  1860 (in short the ’IPC’).

Accusations which led to the trial of the accused persons are  essentially as follows:

Goverdhan Lal son of Guljari Lal lodged first information report  (hereinafter referred to as FIR) on 27.2.1980 at about 4.45 p.m. with  the allegation that about 3.00 p.m. on the same date accused Akshay  Kumar, Anil Kumar and Shiv Kumar came towards 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 deceased Kunji Lal. Accused Shiv Kumar exhorted to kill them.  On  this Akshay Kumar and Anil Kumar got down from the tractor and started  to abuse. Accused Anil Kumar fired the gun and the bullet hit Kunji  Lal. Akshay Kumar fired the gun and the bullet hit Kali Charan and both  of them died on the spot. The accused persons sat on their tractor and  went towards their house proclaiming that if anybody tried to raise his  head, he shall also be killed.  The occurrence was said to have been  seen by Kalloo son of Sukha, Ram Beti wife of Gokaran and Rakesh Kumar  son of Siya Ram.

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Rakesh Kumar has since died. Govardhan Lal, the complainant was  examined as PW-1, Kallo as PW-2 and Ram Beti as PW-3.   

In order to further its version the prosecution examined 6  witnesses. The accused persons pleaded innocence. The appellant took  the plea that his driver Navin Chandra was driving the tractor to  plough the field of one Virendra son of Onkar.  Near the house of  complainant, Kali Charan, Munshi Lal, Hari Shankar, Siyaram etc.  emerged with lathies and country made pistols, stopped the tractor and  threatened the driver and he cried out for help.  Appellant Anil Kumar  came along with licenced gun of his father to save them. When he  reached near the tractor, Kali Charan and Kunji Lal fired at him as  well as Navin Chandra. Both of them suffered fire-arm injuries. In self  defence, he fired twice.  He was medically examined and injuries were  x-rayed. Learned Sessions Judge came to the conclusion that it was amply  clear that the occurrence took place at the time, place and date as  claimed by the prosecution. But accused Anil Kumar and Shiv Kumar were  incapable of committing any crime.  Their presence at the spot appeared  to be out of question in view of their age. Injuries on the accused  were not explained and, therefore, the prosecution had not come to  Court with clean hands.  The first information report was ante-timed  and there was no immediate motive for the crime.  Accused Anil Kumar  and Shiv Kumar did not play any active role in the commission of the  offence.  Though accused Anil Kumar had played active role it was in  exercise of right of self defence. Accordingly, all the 3 persons were  acquitted.  The State of Uttar Pradesh filed the appeal before the  Allahabad High Court. During the pendency of the appeal before the High  Court Akshay Kumar and Shiv Kumar died and the appeal was taken to have  been abated so far as they are concerned and was continued against the  accused-appellant Anil Kumar.

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 Askhay 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 defence was not proved and no  material was placed to substantiate the plea. Without any material the  trial court came to hold that the FIR was ante-timed. That being so,  the trial court’s conclusions were erroneous.  Accordingly, State’s  appeal was allowed and accused-appellant Anil Kumar was found guilty of  offence punishable under Section 302, as well as Section 302 read with  Section 34 of IPC.                                   

In support of the appeal learned counsel for the accused- appellant submitted that the High Court has lightly interfered with the  judgment of acquittal. The view taken by the trial court was a possible  view. Even though the occurrence was admitted by the accused, the same  was not unqualified.  High Court proceeded on the basis as if the  accused accepted the prosecution version. The High Court should not  have acted on part of the statement recorded under Section 313 of the  Code of Criminal Procedure, 1973 (in short the ’Code’) and ignored rest  of the same.  It should have scanned the entire evidence to arrive at  the conclusion.  The High Court may have recorded different conclusion

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but that does not render the judgment of the trial court illegal when  it was reasonable and possible view.  The Investigating Officer clearly  noted that the accused-appellant Anil Kumar and Virendra were injured,  but no further inquiry was conducted. There is no material for the  genesis of the dispute.  There was no immediate motive as was held by  the trial court.  The medical evidence is also at variance with the  oral evidence. The FIR was rightly held to be ante-timed when the  evidence of Ram Beti (PW-3) is taken note of.  Admittedly, the  litigation took place two decades back. If there was any motive the  victim would have been Girdhari Lal and not the two deceased persons.   

In response, learned counsel for the State submitted that the  first information report was lodged immediately.  The evidence of the  eye-witnesses has not been shaken during the cross-examination at  length. The trial court had only held that the possibility of role  played by Shiv Kumar was not sufficient to implicate him and whatever  discussions were made related to Shiv Kumar. After having come to the  conclusion that Anil Kumar might have been responsible for the  mischief, it was illogical to give any benefit of doubt on the ground  that he acted in self defence.  This is a conclusion without any  foundation. 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.   

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 has been acquitted, for the purpose of  ascertaining as to whether any of the accused really committed any  offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh  (2002 (2) Supreme 567). The principle to be followed by appellate Court  considering the appeal against the judgment of acquittal is to  interfere only when there are compelling and substantial reasons for  doing so.  If the impugned judgment is clearly unreasonable and  relevant and convincing materials have been unjustifiably eliminated in  the process, it is a compelling reason for interference. These aspects  were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v.  State of Maharashtra (AIR 1973  SC 2622), Ramesh Babulal Doshi v. State  of Gujarat (1996 (4) Supreme 167), Jaswant Singh v. State of Haryana  (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors.  (2003 (7) Supreme 152), State of Punjab v. Karnail Singh (2003 (5)  Supreme 508 and State of Punjab v. Pohla Singh and Anr. (2003 (7)  Supreme 17) and Suchand Pal v. Phani Pal and Anr. (JT 2003 (9) SC 17).  

We shall first deal with the question regarding non-explanation  of injuries on the accused.     Issue is if there is no such explanation  what would be its effect? We are not prepared to agree with the learned  counsel for the defence that in each and every case where prosecution  fails to explain the injuries found on some of the accused, the  prosecution case should automatically be rejected, without any further  probe. In Mohar Rai and Bharath Rai v. The State of Bihar (1968 (3) SCR  525), it was observed:

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       "...In our judgment, the failure of the  prosecution to offer any explanation in that regard  shows that evidence of the prosecution witnesses  relating to the incident is not true or at any rate  not wholly true. Further those injuries probabilise  the plea taken by the appellants."

In another important case Lakshmi Singh and Ors. v. State of Bihar  (1976 (4) SCC 394), after referring to the ratio laid down in Mohar  Rai’s case (supra), this Court observed:

               "Where the prosecution fails to explain the  injuries on the accused, two results follow:

               (1)     that the evidence of the prosecution  witnesses is untrue; and (2) that the injuries  probabilise the plea taken by the appellants."

It was further observed that:

"In a murder case, the non-explanation of the  injuries sustained by the accused at about the time  of the occurrence or in the course of altercation is  a very important 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 competes in probability with that of the prosecution. But  where the evidence is clear, cogent and creditworthy and where the  Court can distinguish the truth from falsehood the mere fact that the  injuries are not explained by the prosecution cannot by itself be a  sole basis to reject such evidence, and consequently the whole case.  Much depends on the facts and circumstances of each case. These aspects  were highlighted by this Court in Vijayee Singh and Ors. v. State of  U.P. (AIR 1990 SC 1459).

Non-explanation of injuries by the prosecution will not affect  prosecution case where injuries sustained by the accused are minor and  superficial or where the evidence is so clear and cogent, so  independent and disinterested, so probable, consistent and

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creditworthy, that it outweighs the effect of the omission on the part  of prosecution to explain the injuries. As observed by this Court in  Ramlagan Singh v. State of Bihar (AIR 1972 SC 2593) prosecution is not  called upon in all cases to explain the injuries received by the  accused persons.  It is for the defence to put questions to the  prosecution witnesses regarding the injuries of the accused persons.   When that is not done, there is no occasion for the prosecution  witnesses to explain any injury on the person of an accused.  In Hare  krishna Singh and Ors. v. State of Bihar (AIR 1988 SC 863), it was  observed that the obligation of the prosecution to explain the injuries  sustained by the accused in the same occurrence may not arise in each  and every case. In other words, it is not an invariable rule that the  prosecution has to explain the injuries sustained by the accused in the  same occurrence.  If the witnesses examined on behalf of the  prosecution are believed by the Court in proof of guilt of the accused  beyond reasonable doubt, question of obligation of prosecution to  explain injuries sustained by the accused will not arise.  When the  prosecution comes with a definite case that the offence has been  committed by the accused and proves its case beyond any reasonable  doubt, it becomes hardly necessary for the prosecution to again explain  how and under what circumstances injuries have been inflicted on the  person of the accused.  It is more so when the injuries are simple or  superficial in nature.  In the case at hand, trifle and superficial  injuries on accused are of little assistance to them to throw doubt on  veracity of prosecution case. (See Surendra Paswan v. State of  Jharkhand (2003) 8 Supreme 476).

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  evidence totally improbabilises the oral evidence, adverse inference  can be drawn.  This is not a case of that nature.   

Above being the position, we find no infirmity in the judgment of  the High Court to warrant interference. The appeal is dismissed.