IN THE SUPREME COURT OF INDIA CRIMINIAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 920 OF 2008

NANHEY SHEIKH …APPELLANT

  VERSUS

STATE OF U.P. …RESPONDENT

WITH

CRIMINAL APPEAL NO. 2190 OF 2009

O R D E R  

1. In these two appeals as similar facts are involved, we  

propose to dispose of both these appeals by this common  

judgment and order.

2. Criminal Appeal No. 920 of 2008 was filed by Nanhey  

Sheikh whereas Criminal Appeal No. 2190 of 2009 was filed  

by Sahulat and Irshad.  Since one of the appellants namely  

Sahulat, had failed to surrender himself, Criminal Appeal  

No. 2190 of 2009, stood dismissed with respect to him due  

to his default in surrendering in terms of order of the  

Court dated 7th October, 2009.  Therefore, in the present  

two appeals we are concerned with the orders of conviction  

and sentence passed by the High Court against Nanhey Sheikh  

and Irshad.

3. The aforesaid appellants were acquitted by the trial  

Court whereas their order of acquittal was set aside by the  

High Court by convicting them under Section 302 read with  

Section 149 of the Indian Penal Code.

4. The  order  of  conviction  passed  by  the  High  Court  

against both the appellants are challenged by the counsel  

appearing for the appellants herein contending, inter alia,  

that the High Court was not justified in setting aside the  

order of acquittal on the four grounds which are set out in  

the  impugned  judgment  which  according  to  the  learned  

counsel  which  are  non-existent  and  illogical.   He  has  

further submitted before us that it is not the prosecution  

case also that both the present appellants had fired from  

their  pistols.    He  has  also  submitted  before  us  that  

although the allegation was that the two appellants were  

allegedly having pistols while they accosted and surrounded  

Ali  Bahadur,  the  fact  remains  that  no  pistols  were  

recovered  from  their  custody  and  possession  and  

consequently there is definitely doubt about their presence  

as  also  participation  in  the  occurrence.   We  have  also  

heard the learned counsel appearing for the State who has  

submitted that these two appellants were also part of the  

unlawful assembly as the second incident could well be said  

to be in continuation of the first incident.

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5. Having gone through the evidence on record, we are,  

however, of the considered opinion that there is some doubt  

about the presence as also participation of the said two  

appellants in the alleged occurrence.  The evidence adduced  

by the prosecution itself discloses that Ali Bahadur had  

run away from the place where Anwar Ali was killed and when  

he was running towards his house he was accosted by the  

present  appellants  near  his  house.   That  indicates  that  

these two appellants were not present at the place where  

the  first  incident  had  taken  place,  which,  in  turn,  

indicates that they were not present at the place where  

Anwar Ali was killed but they were at a different place.  

It is also not proved in evidence that these two appellants  

had fired any shot on the deceased Ai Bahadur since the  

only  allegation  made  against  them  is  that  they  had  

surrounded Ali Bahadur with pistols in their hands.    It  

is thus clearly established that even if they had pistols  

in their hands they did not fire from them.   No pistol has  

also  been  recovered  from  their  possession  and  at  their  

instance.  All these circumstances create doubt in our mind  

about their participation in the incident.

6. In that view of the matter, we are of the considered  

opinion that the High Court was not justified in setting  

aside the order of acquittal on the grounds mentioned in  

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the impugned judgment.  The grounds on which the order of  

acquittal was set aside, in our considered opinion, were  

not  sufficient  to  set  aside  a  well  considered  order  of  

acquittal.   It cannot be said that the order of acquittal  

passed  by  the  trial  Court  was  perverse  or  infirm  or  

palpably erroneous.  Indeed according to us, the view taken  

by the trial Court is a possible and plausible view taken  

on  appreciation  of  evidence,  which  did  not  call  for  

interference.

7. After considering the entire evidence on record, both  

the appeals filed by the present appellants are allowed.  

They shall be set at liberty forthwith if not wanted in any  

other case.

……………………….…………………………J. [DR. MUKUNDAKAM SHARMA]

…………………………………………..……J. [A.K. PATNAIK]

NEW DELHI MARCH 17, 2010.

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