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PETITIONER: MOHD.  ASLAM ALIAS KUYIAN

       Vs.

RESPONDENT: STATE OF U.P.

DATE OF JUDGMENT18/03/1993

BENCH: RAY, G.N. (J) BENCH: RAY, G.N. (J) REDDY, K. JAYACHANDRA (J)

CITATION:  1993 SCR  (2) 444        1993 SCC  (3)  10  JT 1993 (4)   175        1993 SCALE  (2)69

ACT: Code  of  Criminal  Procedure,  1973  :  Section  378-Appeal against acquittal-Interference by Appellate Court when. Penal  Code,  1860 : Section 302-Conviction under,  by  High Court Appreciation of evidence by Supreme Court-High Court’s finding whether justified-Evidenices of  eye-witnesses-Value of.

HEADNOTE: The prosecution case was that there was long standing enmity between appellant’s father and one Khan on one side and  the complainant  on the other, which rose out of rival claim  in placing ’sawai’ on the Akhara of Tajias.  A Civil litigation was pending between the parties over the dispute.   Criminal proceedings  under section 107 read with section 117 of  the Code of Criminal Procedure were also pending between them. The  nephew  and  son-in-law of the  complainant  was  doing pairvi of the cases on behalf of the complainant and because of  that  the father of the appellant and  one  Khan  became inimical to the son-in-law of the complainant. At  about  6.00 P.M. on the date of  the  occurrence  namely 25.12.1975, the son-in-law of the complainant was sitting on a  wooden  bench  in front of a hair  cutting  shop  of  his village.  One Umar and P.W.1 were also sitting with him  and all  the  three  were  talking.   P.Ws.  2  and  3  and  the complainant were standing near a Gumti, at a short  distance and were talking. At  the time, the appellant armed with a double  barrel  gun came  there.  He challenged the complainants son-in-law  and threatened to kill anyone who would come forward.  He  fired two  shots  which hit the complainant’s son-in-law  add  one Umar.  Both of them fell down.  Complainant’s son-in-law 445 died on the spot.  P.W. 10 took Umar to Hospital. The  Complainant  went to his home and got a report  of  the occurrence  written  by P.W.4 and taking the report  to  the Police  Station, about 4 miles away, he lodged the F.I.R  at 7.15   P.M.  Investigation  of  the  case  was   immediately commenced.   Umar  died on 4.1.1976, prior to his  death  on 1.1.1976, the Police had interrogated the deceased. The  case  of accused  appellant was that  he  was  falsely implicated  on  account  of enmity and  party  faction.   He

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denied all the allegations of the prosecution. The  Sessions Court acquitted the accused-appellant,  as  it did   not  rind  the  prosecution  case  and  the   evidence acceptable. Allowing  the  State’s appeal against  acquittal,  the  High Court  convicted the appellant under section 302 I.P.C.  and sentenced him to imprisonment for life. In the appeal before this Court, the accused contended  that the  High Court did not appreciate the  salutory  principles governing the judgment of acquittal; that the Sessions Judge had  taken  pains  in analysing  in  detail.  the  evidences adduced  in  the case and gave reasonings for  each  of  the finding as to why the prosecution case could not be accepted and  what  were the intrinsic deficiency  in  the  evidences adduced in the case in support of the prosecution; that  the law  was  well  settled that in a  case  of  acquittal,  the appellate  Court should not interfere with the  judgment  of acquittal if such judgment was based on consideration of the evidences adduced in the case and there was no perversity in coming to the finding for passing the judgment of  acquittal and in such a case of acquittal, the High Court in  exercise of  its appellate power should not endeavour  to  appreciate the  evidence  on  its own in order  to  come  to  different finding  Unlike  in an appeal arising from the  judgment  of conviction:  that it has been established convincingly  that there  was  party  faction between the  two  groups  over  a dispute to place Sawai on Tajias and both civil and criminal proceedings were instituted between the two groups: that the eye-witnesses  were  in the faction of the  complainant  and they  were  partition witnesses; that  the  Sessions  Judge, therefore,  after nothing the various discrepancies  in  the prosecution case, was not inclined to place reliance on  the evidences adduced by the alleged eye-witnesses and acquitted the accused/appellant; 446 and  that such order of acquittal, in the facts of the  case and  the  reasons indicated by the Sessions Judge,  was  not required to be interfered with in appeal by the High Court. Dismissing the appeal, this Court, HELD:     1.   In  an  appeal  arising  from  an  order   of acquittal,  the  appellate  Court  is  not  precluded   from appreciating  the evidences on its own if the reasons  given by  the  learned  trial  Judge  in  passing  the  order   of acquittal, do not stand scrutiny and are against the  weight of the evidences adduced in the trial.  The appellate Court, will  be  quite  justified in setting  aside  the  order  of acquittal if it appears to the court of appeal that improper consideration  of the materials and evidences on record  was made  and  the  reasonings of the  trial  Judge  are  wholly unjustified.  It is only necessary that the court of  appeal should weigh the reasonings of the learned trial Judge  with care  and caution in the light of the evidences  adduced  in the  case by giving cogent reasons as to why  such  findings are unreasonable and against the evidence. [451B-C] 2.01.     In the instant case, the High Court has taken care in analysing each and every finding of the learned  Sessions Judge in the light of the evidences adduced in the case  and has  given  cogent  reasons as to  why  such  findings  were unreasonable and not acceptable.  It is an admitted position that  two persons suffered gun shot injuries and one of  the enjured  persons died on the spot and the other was  removed to hospital.  He got serious injuries and later on sccummbed to  such injuries.  The mere fact that there was enmity  and bitterness  between  the  two groups, by  itself,  does  not establish  that  the eye-witnesses  falsely  implicated  the

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accused/appellant. [451D-E] 2.02.     There  are  no  intrinsic  discrepancies  in   the evidences of the eye-witnesses.  Even if it is assumed  that such  eye-witnesses belong to the group of the  complainant, their evidences are not liable to be discarded on that score if such evidences otherwise inspire confidence and get  cor- roborated  by  other  evidences  and  from  the  nature   of injuries, sustained by the deceased persons. [452E] 2.03.     All  the findings made by the Sessions Judge  were considered  in detail by the High Court and the findings  of the  learned  Sessions judge were not accepted by  the  High Court by indicating that such findings were 447 against the weight of the evidences and the same were wholly unreasonable.   In the circumstances, there is no reason  to take a contrary view in this appeal. [452H]

JUDGMENT: CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 554  of 1984. From the Judgment and Order dated 27.9.1984 of the Allahabad High Court in Government Appeal No. 1634 of 1977 M.R.  Sharma, Ms. Anjana Sharma and R.D. Upadhayaya for  the Appellant. Arvind K. Nigam, Ms. Kamini Jaiswal and A.S. Pundir for  the Respondent. The Judgment of the Court was delivered by G.N.  RAY, J. This appeal is directed against  the  Judgment dated September 27, 1984 passed by the Division Bench of the Allahabad High Court setting aside the judgment dated  April 30,  1977 passed by the learned Additional  Sessions  Judge, Second Court, Kanpur (Dehat).  By the impugned Judgment, the Division  Bench  of  the Allahabad High  Court  allowed  the appeal  preferred by the State of Uttar Pradesh against  the judgment of acquittal. in Sessions Trial No. 235 of 1976 and convicted  the accused/appellant Mohd.  Aslam under  Section 302 I.P.C. and sentenced him to imprisonment for life. The  prosecution  story  in  short is  that  there  is  long standing  enmity  between Abdul Salem and Abdul  Hamid  Kham Pradhan  on one side and the complainant Abdul Hamid on  the other.    Such   enmity  arose  out  of   rival   claim   in placing’sawai’on  the  Akbara  of  Tajias  at  the  time  of Moharram.  Sawai is a kind of flag which is put on Tajias at the time of Moharram.  Over such dispute a civil  litigation was  going on between the said parties and there  were  also criminal proceedings under Section 107 read with Section 117 of the Code of Criminal Procedure between the said  parties. Shamim  Raza was nephew and son-in-law of Abdul  Hamid,  the complainant and the said Shamim Raza was doing pairvi of the said  cases  on behalf of Abdul Hamid.   For  the  aforesaid reasons,  Abdul Salem and Abdul Hamid Khan  Pradhan,  became inimical towards Shamim Raza and Abdul Hamid.  Mohd.  Aslam, the  accused/appellant is the son of Abdul Salem.  Both  the parties were residents of village Bara, 448 within  Police Station Akbarpur in the District  of  Kanpur. On  December  25, 1975 at about 6.00 P.M.  Shamim  Raza  was sitting on a wooden bench in front of a hair cutting shop of Iiyas in village Raza.  Mohd.  Umar and Abdul Khaliq (P.W.1) were  also sitting with him and the said three persons  were talking.   The  Gumti  of one Mohd.  Laiq  was  at  a  short distance  towards the east of that place.   Bhurey  (P.W.2), Qamruddin  (P.W.3)  and Abdul Hamid were standing  near  the

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said  Gumit  and  had also been talking.   There  was  light coming from electric bulbs at that place.  At that time, the accused/appellant,  Mohd.   Aslam came there  armed  with  a double barrel gun.  He challenged Shamim Raza and threatened to kill anyone who would come forward.  Thereafter, he fired two  shots.   By  said shots, Shamim Raza  and  Mohd.   Umar sustained  gun-shot  injuries and both of  them  fell  down. Shamim  Raza  died on the spot and the  condition  of  Mohd. Umar also became serious.  Such occurrence was seen by Mohd. Umar,  Abdul  Hamid, Bhurey and  Qamruddin.   Peer  Mohammed (P.W.10)  took  Mohd.  Umar to Lala  Lajpatrai  Hospital  at Kanpur  for  treatment  and at  7.50  PM.   Dr.R.C.  Asthana (P.W.8)  examined  Mohd.  Umar.   Abdul  Hamid  went  to his house  and got a report of the occurrence written  by  Mohd. Raizwan (P.W.4) and took the said report to Akbarpur  Police Station  which was about 4 miles away and lodged the  F.I.R. at 7.15 P.M. Station Officer incharge of the Akbarpur Police Station,   Mr.   Jagdamba   Prasad  Misra,   took   up   the investigation of the case and he interrogated Abdul Hamid at the  Police  Station  and thereafter reached  the  scene  of occurrence  at  about 7.55 P.M. He found the  dead  body  of Shamim Raza lying at the scene of occurrence and he prepared inquest   report  and  other  connected  papers.   He   also interrogated Bhurey, Qamruddin and Abdul Khaliq who were the eye-witnesses,  He,  also prepared the site plan  and  found blood  on  the  wooden  bench and also  on  the  ground  and collected  portion  of the blood stained  wooden  bench  and blood   stained  bricks.   The  injured  Mohd.    Umar   was interrogated  in  the hospital on January, 1976.   The  post mortem examination on the body of Shamim Raza was  performed by Dr. Prakash (P.W.6). Mohd.  Umar died in the hospital  on January  4,  1976  and  his  post  mortem  examination   was performed by Dr. B.D. Misra at Kanpur on January 5,1976. The  accused/appellant Mohd.  Aslam- denied the  prosecution allegations  against  him and alleged that  he  was  falsely implicated on account of enmity and party faction.  He  also denied  that he had been absconding from the village and  he examined  two witnesses in defence.  The learned  Additional Sessions  Judge  did not find the prosecution case  and  the evidences     acceptable.   Accordingly,  he   acquitted the accused/appellant.  The State 449 thereafter  preferred  an appeal before the  Allahabad  High Court and as aforesaid, the Allahabad High Court allowed the said  appeal, set aside the judgment of acquittal passed  by the    learned    Sessions   Judge   and    convicted    the accused/appellant under Section 302 I.P.C. and sentenced him to suffer rigorous imprisonment for life. Learned  counsel  appearing for  the  accused/appellant  has strenuously contended that the High Court did not appreciate the salutory principles governing the judgment of acquittal. He  has contended that the learned Sessions Judge had  taken pains  in analysing in detail the evidences adduced  in  the case and gave reasonings for each of the findings as to  why the prosecution case could not be accepted and what were the intrinsic deficiency in the evidences adduced in the case in support  of  the  prosecution.   The  learned  counsel   has contended  that  the law is well settled that in a  case  of acquittal, the appellate Court should not interfere with the judgment   of  acquittal  if  such  judgment  is  based   on consideration of the evidences adduced in the case and there is  no perversity in coming to the finding for  passing  the judgment  of  acquittal.  In such a case of  acquittal,  the High  Court  in exercise of its appellate power  should  not endeavour to appreciate the evidence on its own in order  to

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come  to different finding unlike in an appeal arising  from the  judgment  of  conviction.   The  learned  counsel   has contended  that  it has been established  convincingly  that there  was  party  faction between the  two  groups  over  a dispute to place Sawai on Tajias and both civil and criminal proceedings were instituted between the two groups. The  learned  counsel has contended that  Abdul  Hamid,  the father-in-law   of  the  deceased,  Shamim  Raza,  was   the principal  man  with whom Abdul Salem and Abdul  Hamid  Khan Pradhan had disputes and differences.  There was no  earthly reason to bear malice and grudge against Shamim Raza who was only a son-in-law of Abdul Hamid Khan Pradhan.  Accordingly, there was no reason to kill him particularly in the presence of eye-witnesses as alleged.  Such fact was taken note of by the learned Sessions Judge in analysing the acceptability of the  prosecution  case  and  credibility  of  the  witnesses examined  in support of the prosecution case.   The  learned counsel for the appellant has also submitted that there  was no reason for injuring Mohd.  Umar by the accused/appellant. He  has  contended  that the alleged incident  of  gun  shot injuries  had  not  happened in the manner  alleged  by  the prosecution but after such incident, the complainant and the other alleged eve-witnesses falsely implicated the ac-      450      cused/appellant      because of the old enmity  between the two groups. The  learned  counsel has contended that  in a very short time, a written complaint was        lodged  in the Akbarpur Police Station which is admittedly four   miles away from the place of occurrence. The prosecution story  is that  after  the  incident the said  written  complaint  was reduced  in writing by a person other than  the  complainant and thereafter the complainant went to the Police Station to file the written complaint.  If the incident had taken place at  about  6.00 P.M. as alleged by the  prosecution,  it  is practically  impossible to lodge the said written F.I.R.  at Akbarpur  Police  Station by 7.15  P.M.,  particularly  when Abdul Hamid, the complainant did not straightaway go to  the Akbarpur Police Station but he had been to his house and got a report of the occurrence written by Mohd.  Raizwan (P.W.4) and  then lodged the F.I.R. at the Akbarpur Police  Station. The  learned  Sessions  Judge had taken note  of  this  very important  fact  in  not  accepting  the  prosecution  case. Unfortunately,  the  High  Court failed  to  appreciate  the strong reasonings given by the learned Sessions Judge in not accepting  the  prosecution case. The learned  counsel  has also  submitted that there is serious discrepancy so far  as the  injury of Mohd.  Umar is concerned.  Admittedly,  Mohd. Umar got injured by a gun shot at the back but the manner in which  the injured was sitting and the direction from  which the  gun was fired by the appellant, could not  have  caused gun  shot injuries at the back of Mohd.  Umar.  The  learned Sessions  Judge having noted such discrepancies had  rightly rejected    the    prosecution    case    implicating    the accused/appellant.   He has also submitted that  the  doctor had noted that Mohd.  Umar sustained gun shot injuries  from a  bullet but the injuries sustained by the other  deceased, namely, Shamim Raza was a gun shot injury from pellets.   It was  nobody’s case that different guns had been used by  the accused/appellant   for  injuring  the  said   two   persons differently.   Because  of  such  discrepancy,  the  learned Sessions  Judge was not inclined to accept  the  prosecution case  and the suggestion.given by the prosecution  witnesses that Mohd.  Umar might have turned his back in a reflex  and received the gun shot injuries at the back was not  accepted by the learned Sessions Judge.  The learned counsel for  the

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appellant  has also contended  that the alleged  eye-witness were in the faction of the complainant Abdul Hamid and  they were  partisan  witnesses.  Accordingly,  their  testimonies were  required  to  be  considered  with  extreme  care  and caution.   The  learned  Sessions  Judge,  therefore,  after noting  the various discrepancies in the  prosecution  case, was not inclined to place reliance on the evidences  adduced by    the   alleged   eye-witnesses   and   acquitted    the accused/appellant. 451 Such  order of acquittal, in the facts of the case  and  the reasons  indicated  by the learned Sessions Judge,  was  not required to be interfered with in appeal by the High Court. We  are, however, unable to accept the submissions  made  by the learned counsel for the appellant.  In an appeal arising from  an  order  of acquittal, the appellate  Court  is  not precluded from appreciating the evidences on its own if  the reasons  given  by the learned trial Judge  in  passing  the order  of acquittal, do not stand scrutiny and  are  against the  weight  of  the evidences adduced in  the  trial.   The appellate  Court, will be quite justified in  setting  aside the order of acquittal if it appears to the court of  appeal that  improper consideration of the materials and  evidences on record was made and the reasonings of the trial Judge are wholly unjustified.  It is only necessary that the court  of appeal  should  weigh the reasonings of  the  learned  trial Judge  with care and caution in the light of  the  evidences adduced in the case by giving cogent reasons as to why  such findings are unreasonable and against the evidence.  In  the instant  case,  the High Court has taken care  in  analysing each and every finding of the learned Sessions Judge in  the light  of  the evidences adduced in the case and  has  given cogent reasons as to why such findings were unreasonable and not  acceptable.   It is an admitted position that  the  two persons  suffered gun shot injuries on December 25, 1975  in the evening and one of the injured persons died on the  spot and  the  other  was removed to hospital.   He  got  serious injuries and later on sccummbed to such injuries.  The  mere fact  that there was enmity and bitterness between  the  two groups, by itself, does not establish that the eye-witnesses falsely  implicated the accused/appellant.  Shamim Raza  was the  son-in-law  of Abdul Hamid and it  was  established  in evidence  that  he was looking after the cases  between  the parties  and making’pairvi’in civil and criminal cases.   In our  view,  the  High Court is  justified  in  holding  that because  of such positive role taken by Shamim Raza, he  had incurred  displeasure  of the other group which acted  as  a motive  for  the gun shot injuries.   The  learned  Sessions Judge  doubted the prosecution case because of  lodging  the F.I.R.  at  7.15 p.m. at Akbarpur Police Station  which  was about four miles away from the place of occurrence where the incident,  according to the prosecution, had taken place  at about  6.00 P.M. We do not think that such F.I.R. could  not have  been  lodged  by  that  time.   The  High  Court   has considered  the reasonings of the learned Sessions Judge  on the  question  of  lodging the  F.I.R.  at  Akbarpur  Police Station within a short time and has, in our view, given very good 452 reasons  in  not  accepting the views  entertained  by,  the learned  Sessions Judge.  In our view, the learned  Sessions Judge  was also not justified in holding that the  gun  shot injuries  suffered  by  Mohd.  Umar had  not  been  property explained  by the prosecution because the doctor  had  noted that such injuries were caused by bullet and not by pellets.

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The injuries suffered by Mohd.  Umar as noted by the  doctor do  not  run  counter  to the  prosecution  case  that  such injuries  were  caused by the gun used  by  the  accused/ap- pellant.  The High Court is right, in our view,  in  holding that the size of the pellet depends on the type of cartridge used in a gun.  It cannot be held as a matter of course that simply because the pellets injuring the deceased Shamim Raza were  smaller in size than the size of the pellets  used  in injuring Mohd.  Umar, both the injuries could not have  been inflicted by the same gun.  The High Court, in our view,  is also  justified  in  not accepting  the  reasonings  of  the learned Sessions Judge that the injuries caused at the  back of  Mohd.   Umar were not possible and run  counter  to  the evidences  adduced by the prosecution.  There  was  interval though very short between the two shots and it is not at all unlikely  or highly improbable that because of the  inherent reflex, the other injured, Mohd.  Umar, had turned his  side and  received  the  injuries at the back  portion.   In  the instant case, there are eye-witnesses to the occurrence  and there  are  no intrinsic discrepancies in  their  evidences. Even if it is assumed that such eye-witnesses belong to  the group of the complainant, their evidences are not liable  to be  discarded  on  that score if  such  evidences  otherwise inspire  confidence and get corroborated by other  evidences and  from the nature of injuries, sustained by the  deceased persons.   The High Court is right in holding that  although Abdul Khaliq (P.W.1) belonged to a group and appeared to  be a  partisan  witness, his evidence was not  required  to  be discarded  on  that ground but was required  to  be  closely scrutinised.  The High Court, in our view, is also justified in holding that Qamruddin (P.W.3) was not related to  Shamim Raza,  deceased or the complainant and he did not belong  to any  of the rival groups.  This witness had no  enmity  with the accused/appellant or his father.  Qamruddin (P.W.3)  has been  rightly held by the High Court, as an independent  and reliable witness. It  appears to us that all the findings made by the  learned Sessions  Judge were considered in detail by the High  Court and  the  findings of the learned Sessions  Judge  were  not accepted by the High Court by indicating that such  findings were against the weight of the evidences and the same   were wholly unreasonable.  In the aforesaid circumstances, we  do not find 453 any  reason to take a contrary view in this appeal  and  set aside  the order of conviction made by the High Court.   The appeal therefore fails and is dismissed.  By the Order dated April   8,   1986,   this  Court   granted   bail   to   the accused/appellant.  In view of the dismissal of this  appeal the  bail  stands  cancelled and  the  accused/appellant  is directed to surrender and serve out the sentence. V.P.R.                           Appeal dismissed. 454