REPORTABLE  

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 786 OF 2001  

State of U.P. …. Appellant

Versus

Nandu Vishwakarma & Ors.       …. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1. This appeal is directed against the judgment and order of acquittal passed  

by the High Court of Allahabad whereby and whereunder the High Court  

acquitted Nandu Vishwakarma, Kalu and Lalloo from the charges under  

Section 302 of Indian Penal Code (hereinafter  referred to as ‘the IPC’)  

read with Section 34 and also under Section 367 read with Section 34 IPC.

2. Before dealing with the rival contentions raised on behalf of the parties  

and in order to appreciate the said contentions it would be necessary to  

state a few facts leading to the registration of the aforesaid criminal case.

3. Dangar Yadav, who is the elder brother of informant PW-1 (Prithivi Pal),  

and Gujrati  Devi (PW-2), wife of the informant are residents of village  

Samraha, Police Station Karchana.  The respondents who are accused in  

the present case are residents of another village namely village Dubawal,  

Police Station Sarai Inayat.  There is no dispute with regard to the fact that  

both  the  informant  side  as  also  the  accused  are  involved  in  litigation  

pertaining to some plots of land in Kachhar village of Leelapur which is a  

separate village than the village in which the informant party reside and  

also from the village where the accused party reside.   

4. There was an incident of mutual assault (marpit) on 26th February, 1979 at  

about 12.00 O’ clock.  It is alleged in the first information report (for short  

‘the FIR’) that the informant Prithivi Pal (PW-1) and his wife Gujrati Devi  

(PW-2)  were  engaged  in  harvesting  their  crops  in  village  Kachhar.  

Around  noon,  the  three  alleged  accused  persons  namely  Nandu  

Vishwakarma,  Kalu  and  Lalloo  armed  with  Gandasa,  lathi  and  spear  

respectively reached the scene of occurrence and started assaulting Dangar  

Yadav.   Dangar  Yadav  raised  an  alarm  whereupon  the  two  witnesses  

namely Prithivi Pal (PW-1) and his wife, Gujrati Devi (PW-2), who were  

present in the vicinity tried to save him but in the process they were also  

assaulted by the aforesaid accused persons.  

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5. Consequent  to  the  said  assault  caused  by  the  aforesaid  three  accused  

persons, Dangar Yadav died at the spot and Gujrati Devi (PW-2) also fell  

down in the field.  An oral report of the incident was lodged at about 5.30  

p.m. by Prithivi Pal (PW-1) at Police Station Sarai Inayat.  On the basis of  

the aforesaid report, an FIR being Crime No. 50 of 1979 was recorded and  

the  investigation  was  started  by  the  police.   After  completion  of  the  

investigation the police submitted the charge-sheet against the respondents  

herein on the basis of which charges were framed and they were tried.  The  

respondents pleaded not guilty and stated that they were falsely implicated  

in the said case due to the litigation which is pending between the parties.   

6. In  the  trial,  the  prosecution  examined  a  number  of  witnesses.   After  

completion of the trial,  the learned trial court found all the respondents  

guilty of the charges against them and convicted all three of them for the  

offence  under  Section  302  read  with  Section  34  IPC  and  also  under  

Section 367 read with Section 34 IPC and they were sentenced to undergo  

life  imprisonment  for  the  offence  under  Section  302/34  IPC  and  for  

rigorous imprisonment for five years under Section 367/34 IPC which was  

to run concurrently.

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7. Being aggrieved by the aforesaid judgment and order of conviction the  

respondents filed an appeal before the High Court of Allahabad.  After  

hearing  the  appeal  the  High  Court  passed  an  order  on  24.05.2000  

acquitting all the respondents of the charges under Section 302/34 IPC as  

also under Section 367/34.  While passing the order of acquittal various  

reasons have been given and recorded by the High Court  

8. All the aforesaid grounds and the findings recorded by the High Court are  

under challenge in this appeal which has been filed by the State.  We have  

heard Mr. Sahdev Singh, Public Prosecutor appearing for the State of U.P.  

as also Mr. Shree Pal Singh, Advocate appearing for the respondents.

  9. The Public Prosecutor very forcefully submitted that in view of the clear  

statement  of  the  eye-witnesses  namely Prithivi  Pal  (PW-1)  and Gujrati  

Devi (PW-2) in the aforesaid assault and mutual marpit the order passed  

by the  High Court  is  not  tenable  on the  face  of  it  and their  statement  

should not have been disbelieved by the High Court.  It was also submitted  

that the discrepancies  which are referred to by the accused persons are  

minor discrepancies which do not in any manner affect the substratum of  

the prosecution case.  Therefore, the said minor discrepancies should have  

been  ignored  by  the  High  Court.   He  next  submitted  that  because  the  

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deceased had no Gandasa injury on his body the same would not belie  

entirely  the prosecution’s story particularly  in view of the fact  that  the  

witnesses have explained that though the accused persons tried to assault  

Dangar with Gandasa but the same did not hit him.  He further submitted  

that the High Court committed a manifest error of law and facts in holding  

that probably the occurrence had taken place at night and that what is put  

forth by the prosecution as its case is a concocted story.  

10.The aforesaid submissions were strongly refuted by the counsel appearing  

for  the  respondents.   Having  submitted  before  us  that  there  is  a  total  

contradiction  of  medical  evidence  and  the  ocular  evidence  it  was  also  

submitted that if Gujrati Devi (PW-2) was injured in the mutual assault  

(marpit), she would have been taken to the hospital and admitted thereto  

when the deceased was taken to the hospital.   But admittedly,  she was  

admitted to the hospital only on the next day in respect of which also there  

is some doubt.  He further submitted that in view of the contradictions in  

the  statements  of  the  witnesses,  the  prosecution  story  was  rightly  

disbelieved by the High Court.  It was also submitted by him that if two  

views are possible to be drawn up from the same set of facts and the view  

taken by the High Court is a plausible view, in that event the said order of  

acquittal should not be interfered with.   

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11.We have considered the aforesaid submissions in the light of the record of  

the case and proceed to analyse the same and thereafter giving our findings  

and reasons thereon.

12.Prithivi  Pal  (PW-1)  is  the  informant/complainant  and is  the  brother  of  

Dangar Yadav, the deceased whereas Gujrati Devi (PW-2) is the wife of  

PW-1.   These  two  witnesses  stated  that  they  were  assaulted  by  the  

respondents  with  lathi  and  Gandasa.   The  said  fact  is,  however,  not  

mentioned in the FIR.  The incident had taken place in the village Kachhar  

but neither the informant party nor the accused are residents of the said  

village.  There is no dispute that there is some litigation pending between  

the parties in respect of the said land.   

13.The High Court has found on appreciation of evidence on record that the  

accused-respondents had won the case against the deceased from the court  

of Deputy Collector whereas the appeal against the same was won by the  

deceased.  It also transpires from the record that the accused-respondent  

No.  1  namely  Nandu  Vishwakarma  had  obtained  a  stay  in  the  appeal  

which was continuing till the date of occurrence.  The informant (PW-1)  

had two plots in the village Kachhar.  There is no mention in the FIR to  

indicate in which of the two plots the alleged incident had taken place.  

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What is mentioned in the FIR is that the incident had taken place at the  

disputed land.  The Investigating Officer also could not enlighten and state  

and clarify in his deposition in which of the two plots the incident had  

actually taken place.  It is disclosed from the records that there is some  

evidence to indicate that the accused persons are in possession of the land  

where the incident had taken place.   

14.The medical examination of Gujrati Devi (PW-2) was conducted on 27th  

February,  1979  at  about  7.15  p.m.  which  is  the  next  morning  of  the  

incident.  Why PW-2 was not brought to the hospital along with Dangar  

Yadav, the deceased and why the Investigating Officer did not take any  

step to get PW-2 admitted to the hospital has not been explained at all in  

his  statement  although  he  had  stated  that  he  has  visited  the  place  of  

occurrence at night.  It is an admitted position that Head Moharrir (PW-5)  

stated that he did not send the copy of the checked FIR on 27/28.02.1979  

to the Judicial  Magistrate.   No thumb impression of the informant was  

obtained on the FIR or in the Entry made at the time of the registration of  

the case.  In view of the aforesaid position, the High Court came to the  

finding that the FIR of the case was transcribed on the next date, that is,  

after the Investigation Officer visited the site and not at the time when the  

prosecution alleged to have done.  

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15.Evidence of Gujrati Devi (PW-2) was not accepted by the High Court for  

various  reasons.   One of  the  grounds  on which  her  statement  was  not  

accepted was that she made contradictory statement in the trial in as much  

as she had stated at one stage that the Investigating Officer stayed at the  

spot  of  occurrence  for  two hours  after  fall  of  darkness  and then  again  

stated that  he stayed there throughout  the night.   In her  deposition she  

deposed that she reached Kotwa hospital at about 12.00 p.m. in the night  

but  the  injury  report  prepared  by  the  hospital  indicates  that  she  was  

medically examined in the morning.  The aforesaid statement of Gujrati  

Devi (PW-2) is also contradictory to the statement made by Prithivi Pal  

(PW-1),  her husband.  There are many other vital  contradictions in her  

deposition which are pointed out and noted by the High Court.   

16.Similarly, the deposition of Shiv Murat (PW-3) was also not believed by  

the  High  Court  on  the  ground  that  his  statement  is  also  full  of  

contradictions.  He had stated at one stage in his statement that PW-1 and  

PW-2 were harvesting the field and cutting the crops but at the later stage  

he stated that the deceased was leveling his field for collecting harvesting  

crop.  If PW-1 and PW-2 were harvesting the crop they were using some  

instruments  and  doing  the  same  with  the  help  of  their  respective  

instruments and, therefore, the evidence of PW-1 and PW-2 that they had  

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no weapons in their hands could be belied by the aforesaid statement.  At  

another stage he stated that Dangar Yadav was not leveling the land.  His  

statement is also contradictory in respect of the alleged use of weapons by  

the three accused persons when the same is pitted against the statements of  

PW-1 and PW-2 in that regard.

17.The medical report placed before us clearly indicate that the doctor did not  

find any Gandasa injury either on the body of the deceased or on the body  

of PW-1 and PW-2 who were stated to be injured witnesses.  The number  

of contradictions, which are referred to by the High Court in its judgment,  

in respect of all the witnesses definitely make out a case of plausible view  

which could be deduced from the evidence on record.  Moreover, the High  

Court has given detailed reasons for disbelieving the prosecution case and  

for acquitting the accused persons.

18.It is a settled principle of law that when on the basis of the evidence on  

record two views could be taken – one in favour of the accused and the  

other against the accused – the one favouring the accused should always  

be  accepted.  This  Court  in  the  case  of  Chandrappa  v.  State  of  

Karnataka,(2007) 4 SCC 415, at page 432 observed as follows :  

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“42. From  the  above  decisions,  in  our  considered  view,  the  following general  principles  regarding powers  of the appellate  court while dealing with an appeal against an order of acquittal  emerge:

(1) An appellate court has full power to review, reappreciate and  reconsider  the  evidence  upon  which  the  order  of  acquittal  is  founded.

(2)  The Code of Criminal Procedure,  1973 puts no limitation,  restriction  or  condition  on  exercise  of  such  power  and  an  appellate  court  on  the  evidence  before  it  may  reach  its  own  conclusion, both on questions of fact and of law.

(3)  Various  expressions,  such  as,  “substantial  and  compelling  reasons”,  “good  and  sufficient  grounds”,  “very  strong  circumstances”, “distorted conclusions”, “glaring mistakes”, etc.  are not intended to curtail extensive powers of an appellate court  in an appeal against acquittal. Such phraseologies are more in the  nature of “flourishes of language” to emphasise the reluctance of  an appellate court to interfere with acquittal than to curtail the  power of the court to review the evidence and to come to its own  conclusion.

(4) An appellate court, however, must bear in mind that in case  of  acquittal,  there  is  double  presumption  in  favour  of  the  accused.  Firstly,  the  presumption  of  innocence  is  available  to  him under the fundamental  principle  of  criminal  jurisprudence  that every person shall be presumed to be innocent unless he is  proved guilty by a competent court of law. Secondly, the accused  having secured his acquittal, the presumption of his innocence is  further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of the  evidence on record,  the appellate  court  should not  disturb the  finding of acquittal recorded by the trial court.”

19.In the present case, it is also not clearly established from the records as to  

who was in possession of the property in question where the occurrence  

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had taken place. In view of the aforesaid situation and the two possible  

views taken by the courts below – one taken by the trial court and the other  

taken by the High Court – and the view taken by the High Court being a  

plausible view, we find no ground to interfere with the order of acquittal  

passed by the High Court.   

20.Accordingly, this appeal has no merit and is, therefore, dismissed.  

……………………………J. (Dr. Mukundakam Sharma)

…………………………..J. (Dr. B.S. Chauhan)

New Delhi, July 6, 2009

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