Full Judgment Text
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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
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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;
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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,
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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