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CASE NO.: Appeal (crl.)  988 of 2006

PETITIONER: Jagdish & Anr

RESPONDENT: State of Madhya Pradesh

DATE OF JUDGMENT: 18/09/2007

BENCH: S.B. Sinha & Harjit Singh Bedi

JUDGMENT: J U D G M E N T

CRIMINAL APPEAL NO. 988 OF 2006

S.B. SINHA, J :          1.      Appellants herein, who are two in number, have filed this appeal  being aggrieved by and dissatisfied with a judgment and order dated  23.03.2006 passed by the High Court of Madhya Pradesh, Jabalpur, Gwalior  Bench at Gwalior, whereby the judgment of acquittal dated 30.04.1990  passed by the learned Session Judge, Datia, in S.T. No. 38 of 1987 was set  aside  convicting them for alleged commission of an offence punishable  under Section 302 read with Section 34 of IPC and sentencing them to  undergo rigorous imprisonment for life and a fine of Rs. 5,000/-.  2.      A First Information Report was lodged by one Mangal Singh (PW-1)    alleging that at about 8.00 A.M. on 27.09.1987  he along with his nephew  Gabbar Singh and another nephew Mansingh (deceased) went to the house  of one Govindas Kurmi for borrowing his bullock cart to carry bricks.  They  were informed that the same was in the ’Beda’ of Birjoo.  He asked his son  to accompany them up to the said place.  While the cart was being led and  they reached near the house of Mangoo Kurmi, they found him armed with  ballam, Thakurdas armed with axe, Jagdish armed with axe and Devidayal  armed with pharsa, were standing at the Chabootra of their house.  All the  four of them started abusing them saying that they would finish the deceased  finally that day.  Thakurdas allegedly hit the deceased Mansingh on his neck  as a result whereof he fell down.  He allegedly again inflicted another blow  on his neck causing a big wound.  Jagdish inflicted an axe blow on the his  back.  Devidayal inflicted a pharsa blow on the neck of the deceased and  Mangoo inflicted a ballam blow on his back.  They inflicted two or three  more blows on the back of the deceased, whereafter they ran away. 3.      Appellants, thus, along with Thakurdas and Mangoo were tried for   commission of the murder of Mansingh.  Before the learned Trial Judge the  prosecution in support of its case, inter alia, examined Mangal Singh,  (informant) as PW-1,  Kailash and Dabbu, who are said to be  eye-witnesses,  as PW-2 and PW-4 respectively.   4.      The learned Trial Judge disbelieved the prosecution witnesses. The  defence of the appellants in the case was that the deceased Mansingh was  not a man of good character.  He had many enemies.  He had also strained  relations with one Pragi Choudhari.  He had taken the wood of Pragi and  grabbed the land of Lal Singh.  He had also shot at Bhagirath and had  assaulted one Lalloo and committed a theft.  He, therefore,  might have been  murdered by any one of  them. 5.      Appellant examined one Brijnandan as DW-1.  According to the said  witness on the date of incident at about 4 and 5 a.m. when he was going for  easing himself in the morning, he saw the dead body of Mansingh lying near  the well and Thkurdas was with him.  In the meantime, Kailash had also  arrived.    He, thereafter, asked Thakurdas to call Mangal Singh, brother of  the deceased. According to him, Mangal Singh had stated that the deceased

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had inimical relations with many persons, and one of them might have killed  him.  The police later on arrived and had questioned him.  6.      Before the learned Trial Judge, Dr. R.N. Gupta, who conducted the  autopsy, examined himself as PW-3.  According to him, on post-mortem of  the dead body he found the following external injuries :

"1.     One incised oblique wound on the rt. side of the  neck size 3 x ="

2.      Another incised oblique wound 1" above the  aforesaid wound 2.5 x ="

3.      Wound, size 3.5 x-ray 1" towards backside       on the  neck.

4.      Wound, size 3 x =" lt. side of neck.

5.      Wound, size 3 x1" Lt. side of neck.

All wound were on the neck sufficiently deep due  to which respiratory canal, oesophagus food canal,  blood vessels and bones were cut.  Blood clotted  all four sides of wound, and margins were  contracted.

6.      One incised wound on the back side of neck      in the  middle  of  both  the  shoulders 3 x 1"         size   (original  copy  of  witness No. 3 is un-illegible).

7.      One incised wound  over the lt. shoulder 2 x    =".   Face turned pale, eyes closed because of blood  spots.  Mouth was little open"                 

7.      The said post-mortem examination was held on 27.6.1987.  According  to the doctor, there was no injury on the back of Mansingh and all the seven  injuries were possible to be inflicted by only one weapon.  When two axes  and one pharsa, which were said to be the weapons of offence, were  produced before him, he opined that having regard to the size of the injuries,  the same could have been caused with an axe but could not have been  caused with a pharsa. 8.      It is not in dispute that the aforementioned Birjoo was admittedly a  witness whose name was shown in the charge-sheet, but the prosecution did  not examine him.   9.      The learned Session Judge analyzed the evidence of two witnesses  and arrived at the conclusion that the medical evidence does not support the  ocular evidence.  It was found that Devidayal allegedly had given a pharsa  blow and Jagdish was alleged to have given a blow on the back of Mansingh  but no injury was found on the back of the deceased nor any axe or ballam  injury was found on his back.  No penetrating wound of ballam or lathi  was  found at all on the deceased.  He, therefore, was of the opinion that the  participation of the Mangoo, Jagdish and Devidayal was doubtful.  It was  further opined that Jagdish was alleged to have given two-three axe blows  on the back of the deceased, whereas Devidayal had given two-three phrasa  blows on his back and Jagdish was said to have given two-three  luhangi  blows; but that evidence also stood belied by medical evidence.  10.     The learned Trial Judge also noticed that PW-2 contradicted himself  insofar as he stated that at the time of incident he was at his well, which is  about 8 to 10 furlongs away from the house of Mangoo Kurmi.  According  to him after getting up from his bed, he used to go straight to his well.  He  had furthermore accepted that he had come to his well at about 4 and 5 a.m.  in the morning and at that time he found the dead body of Mansingh lying  there.  The said fact finds support from the statement of Dabbu (PW-4) and  was was also supported by the defence story, as disclosed by Brijnandan  (DW-1).

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11.     It is interesting to note that the aforementioned prosecution witnesses  were not declared hostile.  Whereas at one place of the deposition, PW-4  stated that he had been a witness to the assault by the accused persons upon  the deceased, in his cross-examination, he accepted that when he reached the  place of occurrence he had found the dead body lying there.  It had also been  found by the learned Trial Judge that whereas no injury caused by axe or  ballam on the back of the deceased was found, according to the prosecution  witnesses, accused Mangal Singh, Jagdish and Devidayal had inflicted  ballam, lathi or axe blows on his back.  It was found by the learned Trial  Judge that keeping in view the contradictory statements made by the  prosecution witnesses  in court, vis-‘-vis the prosecution story as divulged in  the First Information Report, it was  doubtful as to whether the appellants  had caused any injury on the deceased.  It had further been found that the  sequence of the event in which the assaults were said to have been caused   was also doubtful being contradictory and inconsistent. 12.     The High Court while dealing with an appeal from a judgment of  acquittal was, thus, required to meet the aforementioned reasonings of the  learned Trial Judge.  There cannot be any doubt whatsoever that irrespective  of the fact that the High Court was dealing with a judgment of acquittal, it  was open to it to re-appreciate the materials brought on records by the  parties, but it is a well-settled principle of law that where two views are  possible, the High Court would not ordinarily interfere with the judgment of  acquittal. [See Rattan Lal v. State of Jammu & Kashmir \026 2007 (5) SCALE  472].   13.     The High Court’s jurisdiction to interfere in such a matter is  permissible in law provided the materials on records lead to only one  conclusion that the appellants are guilty.  The High Court in its impugned  judgment had almost reproduced the First Information Report as also the  depositions of the prosecution witnesses.  It did not make any endeavour to  analyze the evidence independently.  It  proceeded on the basis that the  approach of the Trial Court was negative.  According to the High Court, as  the Trial Court had discussed in details only the inconsistencies in the  evidence of the prosecution witnesses, the same should not be accepted.   Why a different view should be taken has not been spelt out.  The High  Court appears to have proceeded on the premise that the depositions of the  eye-witnesses, namely, Mangal Singh (PW-1) as also other witnesses  corroborate the prosecution story, the prosecution case cannot be thrown out.   14.     It is unfortunate that the High Court while arriving at the  aforementioned conclusion did not pose unto itself the right question.  In the  event, it intended to arrive at a finding different from the one arrived at by  the Trial Court, it was obligatory on its part to analyze the materials on  record independently.  The High Court was also required to meet the  reasoning of the learned Trial Judge.  If the learned Trial Judge upon  appreciation of the evidence arrived at a conclusion that the time of  occurrence disclosed in the First Information Report was not correct  inasmuch whereas the occurrence is said to have taken place at 08.00 a.m.  but in fact it took place much prior thereto, it could not be opined that the  First Information Report  was lodged within an hour of the incident. The  deposition of Mangal Singh as also other prosecution witnesses should have  been subjected to a deeper analysis by the High Court keeping in view the  fact that such an exercise had been resorted by the learned Session Judge.   The High Court also committed a serious illegality insofar as it inferred that  the medical evidence corroborated the ocular evidence.  Evidently it did not. 15.     We, therefore, are of the opinion that it is a case where the High Court  should not have interfered with the judgment of acquittal passed by the  learned Trial Judge.    16.     In State of Rajasthan v. Bhawar Singh [(2004) 13 SCC 147], this  Court has held :         "6. We find that the High Court has carefully  analysed the factual position. Though, individually some  of the circumstances may not have affected veracity of  the prosecution version, the combined effect of the  infirmities noticed by the High Court is sufficient to  show that the prosecution case has not been established.  The presence of PWs. 3, 4 and 8 at the alleged spot of

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incident has been rightly considered doubtful in view of  the categorical statement of PW-5, the widow that she  sent for these persons to go and find the body of her  husband. It is quite unnatural that PWs. 3, 4 and 8  remained silent after witnessing the assaults. They have  not given any explanation as to what they did after  witnessing the assault on the deceased. Additionally, the  unexplained delay of more than one day in lodging the  FIR casts serious doubt on the truthfulness of prosecution  version. The mere delay in lodging the, FIR may not  prove fatal in all cases. But on the circumstances of the  present case, certainly, it is one of the factors which  corrodes credibility of the prosecution version. Finally,  the medical evidence was at total variance with the ocular  evidence. Though ocular evidence has to be given  importance over medical evidence, where the medical  evidence totally improbablises the ocular version that can  be taken to be a factor to affect credibility of the  prosecution version. The view taken by the High Court is  a possible view. The appeal being one against acquittal,  we do not consider this to be a fit case where any  interference is called for. The appeal fails and is  dismissed."

17.     Yet again in Kallu alias Masih and Others v. State of M.P. [(2006) 10  SCC 313], this Court opined : "8. While deciding an appeal against acquittal, the power  of the Appellate Court is no less than the power exercised  while hearing appeals against conviction. In both types of  appeals, the power exists to review the entire evidence.  However, one significant difference is that an order of  acquittal will not be interfered with, by an appellate  court, where the judgment of the trial court is based on  evidence and the view taken is reasonable and plausible.  It will not reverse the decision of the trial court merely  because a different view is possible. The appellate court  will also bear in mind that there is a presumption of  innocence in favour of the accused and the accused is  entitled to get the benefit of any doubt. Further if it  decides to interfere, it should assign reasons for differing  with the decision of the trial court." [See also Rattanlal (supra) and Ramappa Halappa Pujar & Others v. State of  Karnataka \026 2007 (6) SCALE 206].  18.     For the reasons aforementioned, the judgment of the High Court  cannot be sustained which  is set aside accordingly. The  appeal is allowed.    The appellants shall be released forthwith, if not required in connection with  any other case.