iminal Appeal No 12 of 1972
From the Judgment and Order dated the 1st May 1971 of the Madhya Pradesh High Court in Crl
Appeal No 653 of 1970
2 470SCI75 520 R K Bhatt for the appellant
Ram Punjwani H section Parihar and 1
N Shroff for the respondent
The Judgment of the Court was delivered by BEG J The sole appellant Ram Kumar Pandey aged 45 years was tried together with Suresh Kumar aged 20
years and Mulkraj aged 45 years and Ramesh Kumar aged 17 years on two charges framed against him
These were  Firstly That you on or about the 23rd day of March 1970 at Raipur did an act to wit hit Uttam Singh with a knife with such intention or
knowledge and under such circumstances that if by that act you had caused the death of Uttam Singh you would have been guilty of murder and that you caused grievous hurt to Uttam Singh by the said act and that you thereby committed an offence punishable under Section 307 IPC and Secondly  That at the said time and place you or some other persons did commit murder by intentionally or knowingly causing the death of Harbinger Singh and the said act was done in furtherance of the common intention of all and thereby committed an offence punishable under Section 302 read with Section 34 of the Indian Penal Code and within the cognizance of the Court of Sessions
 Suresh Kumar Mulkraj and Ramesh Kumar were accused of offences punishable under Sections 307114 and Section 302 read with Section 34 and 114 Indian Penal Code
The Sessions  Judge of Raipur who had tried the case found Suresh Kumar guilty of the murder by stabbing of Harbinder Singh aged about 16 years and sentenced him to life imprisonment
He convicted the appellant under Section 324 IPC only for the injury inflicted on Uttam Singh and sentenced him to one year s rigorous imprisonment but acquitted him of other charges
He also acquitted the accused Ramesh and Mulkraj of all charges leveled against him
The State of Madhya Pradesh appealed against the acquittal of the appellant Ram Kumar Pandey of the charge under Section 30234 IPC and of Mulkraj and Ramesh Kumar of all charges
Suresh Kumar the son of Mulkraj appealed against his conviction under Section 302 simplicitor but this appeal was dismissed by the High Court which maintained his life imprisonment
The High Court also allowed the States appeal against the acquittal of Ram Kumar Pandey for injuries caused to Harbinder Singh and convicting him under Section 30234 IPC it sentenced him to life imprisonment
It convicted Mulkraj of an offence punishable only under Section 323 IPC and sentenced him to a fine of Rs 200  and in default of payment of fine to rigorous imprisonment for two months
It upheld the acquittal of Ramesh Kumar Ahuja of all charges
This appeal has come up before us after a certificate granted by the High Court under Article 1341 c of the Constitution but the 521 certificate says that the appellant is entitled to it under the  strictly speaking no certificate of the High Court is required for such an appeal where an acquittal has been converted into a conviction finder Section 30234 IPC and a sentence of life imprisonment imposed upon an accused person
Thus appeal in such a case lies as a matter of right to this Court under the Act of 1970
The only question before us now is whether the appellant who had not appealed at all to the High Court against his conviction under Section 324 IPC which stands was rightly convicted by the High Court under Section 30234 IPC after setting aside his acquittal for the graver offence for injuries resulting in the death of Harbinder Singh
The well settled rule of practice in a case of an appeal against an acquittal is that the appellate Court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction
But if the view of the Trial Court is not reasonably sustainable on the evidence on record the appellate Court will interfere with an acquittal
If the Appellate Court sets aside an acquittal and convicts we have to be satisfied after examining the prosecution and defence cases and the crucial points emerging for decision from the facts of the case that the view taken by the Trial Court on evidence on record is at least as acceptable as the one taken by the High Court before we could interfere with the High Court s judgment
The prosecution case as set out in the First Information Report was  Uttam Singh PW 1 residing at Ganj Parao on the first floor went home at about 330 pm on 23 3 1970 and was preparing to have a bath when Suresh Ahuja came down from an upper storey of the house and complained that Uttam Singh had been quarreling with members of his family
Uttam Singh requested him to take his seat and promised to look into the matter
This angered Suresh Ahuja
Thereafter his elder brother arrived and started quarreling with Uttam Singh s daughter
At this stage the landlord Mulkraj Ahuja accompanied by the appellant Ram Kumar Pandey who lives with his family in a side room on the ground floor entered and immediately gave him a blow on his eye brow
Uttam Singh fell down
As Uttam Singh got up the appellant struck him with a knife from behind
Mukhraj asked Pandey to run down stairs
Both the accused tried to run away
Uttam Singh tried to catch them but failed
Uttam Singh when asked his son Harbinder Singh to make a telephone call
At this point Suresh son of Mulkraj stabbed Harbinder Singh who fell down in the lane
Uttam Singh saw Harbinder Singh lying near the house of Saudager Shah with an injury on his chest which was bleeding profusely
Harbinder Singh was carried to a hospital on a cart and Gurcharan Singh telephoned the police
Joginder Singh also came while the injuries were being inflicted
Uttam Singh s daughters Amarit Kaur and Taranjit Kaur saw Uttam Singh wrapping a chadar an the wound of Harbinder Singh
Raj Jaggi had seen Harbinder 522 Singh falling down
The motive for this incident was that Mulkraj Ahuja the landlord wanted his house vacated by Uttam Singh
Harbinder Singh had died while being taken to hospital
The above mentioned First information Report was lodged at Police Station Ganj on 23 3 1970 at 915 pm
The time of this incident is stated to be 5 pm
The only person mentioned as an eye witness to the murder of Harbinder Singh is Joginder Singh
The two daughters Taranjit Kaur PW 2 and Amarjit Kaur PW 6 are mentioned in the FIR only as persons who saw the wrapping of the chadar on the wound of Harbinder Singh What is most significant is that it is nowhere mentioned in the FIR that the appellant had stabbed Harbinder Singh at all
It seems inconceivable that by 915 pm it would not be known to Uttam Singh the father of Harbinder Singh that the appellant had inflicted one of the two stab wounds on the body of Harbinder Singh
No doubt an FIR is a previous statement which can strictly speaking be only used to corroborate or contradict the maker of it
But in this case it had been made by the father of the murdered boy to whom all the important facts of the occurrence so far as they were known up to 915 pm on 23 3 1970 were bound to have been communicated
If his daughters had seen the appellant inflicting a blow  on Harbinder Singh the father would certainly have mentioned it in the FIR We think that or missions of such important facts affecting the probabilities of the case are relevant under Section 11 of the Evidence Act in judging the veracity of the prosecution case
Even Joginder Singh PW 8 was not an eye witness of the occurrence
He merely proves an alleged dying declaration
He stated that Harbinder Singh described by his pet name as Pappi rushed out of his house by opening its door and held his hand on his chest with blood flowing down from it
He deposed that when he asked Pappi what had happened Pappi had stated that Suresh and Pandey had injured him
It is clear from the FIR that Joginder Singh had met Uttam Singh before the FIR was made
Uttam Singh did not mention there that any dying declaration indicating that the appellant had also injured Harbinder Singh
was made by Harbinder Singh
The omission to mention any injury inflicted on Harbinder Singh by the appellant in the FIR seems very significant in the circumstances of this case
Indeed according to the version in the FIR Joginder Singh who was in the lane is said to have arrived while Harbinder Singh was being injured
Therefore if this was correct the two injuries on Harbinder Singh must also have been inflicted in the lane outside
Satwant Kaur PW 7 the wife of Uttam Singh who claimed to have been an eye witness of the whole occurrence was also not mentioned in the FIR Suresh had according to her stabbed Harbinder Singh on the right side of the chest at the door of the kitchen and thereafter Pandey was said to have attacked him
523 Again we find that Taranjit Kaur PW 2 and Amarjit Kaur PW 6 daughters of Uttam Singh have figured as eye witnesses of the whole occurrence including the stabbing of Harbinder Singh by the appellant
As already indicated they are not mentioned in the FIR as eye witnesses of the murder
This is also very significant in the present case
They have been mentioned only as witnesses of wrapping a chadar on the wound of Harbinder Singh who was then said to be lying in the lane after the occurrence
In order to explain how Harbinder Singh said to have been attacked near the kitchen of Uttam Singh on the first floor was found lying in the lane in a pool of blood the persecution version is that after the attack with knives by Suresh and the appellant Harbinder Singh ran and rushed down the steps into the lane
It was pointed out that in view of the nature of two injuries sustained by Harbinder Singh and the medical evidence about them it was not possible for Harbinder Singh either to have rushed down or in any case to have made a dying declaration
The injuries on Harbinder Singh found by Dr section C Vishnoi were as follows  i An incised wound on the left side of the chest placed anteriorly and measuring 1 12 x 1 x 1 12 deep
In the fifth intercostal space closed to the lateral border of the left side of the sternum
It had clean cut and blood stains margins
ii An incised wound on the right side of back in the 8th intercostal space 2 below the inferior angle of scapula
It had measured 1 x 1 x 1
It had clean cut and bloodstains margins
There was found difficulty in probing through this wound
The Doctor said about the first injury This injury had entered the cavity of the right ventrical
It was a very serious injury
Right ventrical is an important part of the heart
Generally such an injury would result in an instantaneous death
Injury to the right ventrical and the paricardium had resulted in profused hemorrhage
He also said  Injury to the lobe of the right lung and the pleura as found in this case will result in shock
Ordinarily such a injury would immediately be fatal
The main points for decision which emerged from the evidence in the case were 1
Where was Harbinder Singh stabbed 2
Who could have been the witness of the stabbing 3
Could the alleged eye witnesses be believed 4
Could the dying declaration said to have been made to 524 Joginder Singh be made the sole basis of the conviction of the appellant under section 30234 IPC if the evidence of alleged eye witnesses was to be discarded As regards the place where the stabbing  took place the High Court had itself felt highly dissatisfied with the manner in which the case was investigated
The site plans do not show any place where the blood was found
if blood marks had been shown and blood had been taken from spots where it had fallen it would have afforded very valuable evidence on the question whether any stabbing of Harbinder Singh did take place at door of the kitchen and whether he ran after that
The site plans did not show even where the kitchen was
Therefore we cannot know by looking at these whether the three ladies who are alleged to be eye witnesses at the trial could have seen the occurrence in the room in which Uttam Singh was injured as well as at the door of the kitchen
Taking all the relevant evidence on this point into account it is far more likely that as the Sessions  Judge had guessed the deceased had been stabbed by Suresh twice in the lane probably once from the front and again while he fell or was trying to run away
He could not have moved far from the scene where he was stabbed
The High Court s reasons to dislodge this inference are insufficient
As regards the second and third points we are unable to give credence to the version of the three alleged eye witnesses as they were not mentioned as eye witnesses in the FIR made in the circumstances indicated above
Lastly the alleged dying declaration is also not mentioned in the FIR
On the other hand the FIR mentions Joginder Singh who tried to prove the dying declaration as an eye witness
It may be pointed out that the charge against the appellant for offences under Section 30234 IPC is also defective inasmuch as it shows that either the appellant or some other person committed the murder
It does not show how or even mention that the appellant acted in concert with anyone else
However no grievance has been made of any defect in the charge or any prejudice to the appellant from it
We therefore ignore it
It may also be mentioned that the High Court had itself recorded the following finding All the eye witnesses have admitted that the four accused did not come together it the same time in the room where the incident happened
Suresh Kumar came in that room first Ramesh Kumar then entered the room and some time after they were followed by Mulkraj and Ram Kumar Pandey
There is nothing to show that there was a preconcert between the four accused to commit any particular offence in the room
It appears that the whole incident took an ugly and unexpected turn and the most unfortunate result 525 was that Harbinder Singh was killed
We are of the view that the trial Court was right in reaching the conclusion that Ram Kumar Pandey and Suresh Kumar were individually responsible for their acts
It is difficult after this finding to follow the reasoning of the High Court in coming to the conclusion that the appellant was guilty of an offence punishable under Section 30234 IPC Consequently we allow this appeal and set aside the conviction and sentence of the appellant under Section 30234 IPC If the appellant has already served the sentence awarded under Section 324 IPC as is stated on his behalf he will be released forthwith
VMK Appeal allowed


Summary:
The appellant was charged with two offences i under section 307 IPC with respect to one person and ii under section 30234 IPC for having along with other accused caused the death of another
The trial court convicted him under s324 IPC on the first charge and acquitted him of the other charge
The appeal by the State against the acquittal on the second charge was allowed by the High Court and the appellant was convicted under s30234 IPC and sentenced to life imprisonment
Allowing the appeal to this Court HELD  1 In the case of an appeal against an acquittal the appellate court should not interfere with the acquittal merely because it can take one of the two reasonably possible views which favours conviction
But if the view of the trial court is not reasonably sustainable on the evidence on record
the appellate court will interfere with the acquittal
If the High Court sets aside an acquittal and convicts this Court has to be satisfied after examining the prosecution and defence cases and the crucial points emerging for decision from the facts of the case that the view taken by the trial court on the evidence on record is atleast as acceptable as the one taken by the High Court before this Court could interfere with the decision of the High Court
521D a The First Information Report is a previous statement which strictly speaking can be only used to corroborate or contradict the maker of it
In the present case the FIR was made by the father of the deceased to whom all the important facts of the occurrence were bound to have been communicated
But though the FIR was given about 4 hours after the incident it was not mentioned therein that the appellant had stabbed the deceased
The omission of such an important fact affecting the probabilities of the case is relevant under s11 of the Evidence Act in judging the veracity of the prosecution case
522D b The evidence shows that the deceased was stabbed by one or the other accused that the place of occurrence had been shifted by the witnesses for the prosecution that the version of the alleged eye witnesses is not credible and that the alleged dying declaration is unreliable
524B D 2 The High Court having found that the appellant and the other accused were individually responsible for their acts erred in finding the appellants guilty on the basis of common intention of an offense under section 30234 IPC 524FG 3 An appeal to this Court by the accused in a case where his acquittal had been converted into a conviction and the sentence of life imprisonment was imposed upon him lies as a matter of right under the  and no certificate of the High Court is necessary
521A