N Criminal Appeal No 537 of 1986
From the Judgment and order dated 391986 of the Madhya Pradesh High Court in Criminal Appeal No 936 of 1983
Rajinder Singh Ranjit Kumar N Jain and Wasim A Qadri for the Appellants
Uma Datta and TC Sharma for the Respondents
The Judgment of the Court was delivered by SINGH J
This appeal is directed against the judgment of the Madhya Pradesh High Court dated 391986 setting aside the trial court s order acquitting the appellants herein and convicting them for offence under Section 302 read with Section 34 of the Indian Panel Code and sentencing each of them to undergo imprisonment for life
The prosecution case in brief is that on 411982 Ram Pratap Singh deceased resident of village Kharoni PS Ajaigarh District Panna had gone to Collectorate Panna to file reply to a show cause notice issued to him for the cancellation of his gun licence
While he was at the Collectorate he noticed Om Prakash and Raghvendra who were inimical to him were shadowing him in the Collectorate
He requested Rajendra Singh PW 14 Chottey Bhaiya PW 15 and Mohd Tohid PW 16 to accompany him on his return journey as he sensed danger to his life
Ram Pratap Singh the deceased sent Tohid to purchase tickets for Bus with a direction that he should meet him at the octroi Toll barrier on the Ajaigarh Road from where he proposed to take the Bus thereafter the deceased along with Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 proceeded on foot to Chungi Chowki octroi Post situate at about two furlongs away from the Collectorate on the Ajaigarh Road
While the deceased Rajendra Singh and 518 Chhotey Bhaiya were waiting for Tohid near the octroi Post one bus arrived but the deceased told Rajendra Singh and Chhotey Bhaiya not to travel by that bus as he had apprehension that Raghvendra and his associates may be inside the bus
While they were waiting for Tohid the deceased went for drinking water from a well which was near the road at the octroi Post
After drawing the water from the well while the deceased was in the process of drinking water at that precise moment gun shots were fired towards him from the Northern side from the Bari boundary causing injuries to him in his chest and hand
On receipt of injuries the deceased ran towards his associates and fell on a takhat near Rajendra Singh and Chhotey Bhaiya
The prosecution further alleged that Rajendra Singh and Chhotey Bhaiya on hearing the gun shot saw the appellant Brajendra armed with a 315 rifle and Awadhesh armed with a 12 bore gun running away along with an other person named Kailash who was also armed with a gun
Rajendra Singh PW 14 who was armed with a 275 rifle and Chhotey Bhaiya was armed with a 12 bore gun fired shots towards the assailants
The assailants also fired towards them but they escaped
On hearing the gun shot fire VP Pathak Sub Inspector of Police PW 20 accompanied by Constable Lakhan Singh PW 12 rushed to the spot
Rajendra Singh PW 14 gave him information about the incident which was recorded by Pathak Dehati Nalishi exhibit P 12 at 310 pm
VP Pathak the Sub Inspector sent the Dehati Nalishi to Kot vali Panna through Lakhan Singh Constable for recording the first information report
After holding inquest Pathak the Sub Inspector prepared Panchnama and sent requisition for post mortem examination of the dead body and he also prepared the spot map exhibit P 17 on the same day
After completion of investigation a charge sheet was submitted against five accused persons including the two appellants Brajendra and Awadhesh for trial for offences under Section 302 read with Section 34 IPC and under Section 307 read with Section 34 of the Indian Panel Code
Kailash one of the accused was shown absconding
Before the trial court Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 supported the prosecution case as eye witnesses they claimed to have witnessed the assault they further claimed that they had recognised the accused persons
The learned Sessions Judge disbelieved the testimony of these two eye witnesses be referred to a number of circumstances which made the prosecution story doubtful therefore he acquitted the accused
On appeal by the State Government the High Court disagreed with the reasons recorded by the trial court and placing reliance on the testimony of the eye witnesses ie Rajendra Singh and Chhotey Bhaiya it allowed the State s appeal and set aside the acquittal of the appellants and convicted them under Section 302 519 read with Section 34 of the Indian Penal Code and awarded sentence of imprisonment for life to each of them
The trial court held that the prosecution had failed to prove its case beyond all reasonable doubt and no reliance could be placed on the testimony of the Rajender Singh PW 14 and Chhotey Bhaiya PW 15
The trial court referred to a number of circumstances creating doubt on the credibility of the prosecution story but the High Court differed from those findings and on appraisal of evidence it came to the conclusion that the prosecution had proved its case beyond all reasonable doubt
The High Court referred to a number of decisions of this court in considering the scope of its jurisdiction in interfering with an order of acquittal passed by the trial court but while applying the principles it failed to appreciate that the view taken by the trial court was reasonable and plausible
Even the High Court has not held that the view taken by the trial court was not a possible view
The High Court reappraised the evidence and took a different view and it explained the infirmities of the prosecution pointed out by the Sessions Judge
In G B Patel  Anr
vs State of Maharashtra  this Court quoted with approval the principles laid down by Privy Council in Sheo Swarup vs King Emperor AIR 1934 PC 227 wherein it was held that although the power of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction yet as a rule of prudence the High Court should always give proper weight and consideration to matters eg i the views of the trial judge as to the credibility of the witnesses ii the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at the trial iii the right of the accused to the benefit of any doubt and iv the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses
Sarkaria J speaking for the court observed where two reasonable conclusions can be drawn on the evidence on record the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the court below
In other words if the main grounds on which the court below based its order acquitting the accused are reasonable and plausible and cannot be entirely and effectively dislodged or demolished the High Court should not disturb the acquittal
 While considering an appeal against acquittal the High Court must keep in mind these principles in appreciating the evidence of witnesses
If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible one as held by the trial court for acquitting the accused and the other for 520 convicting the accused in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial court
Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable perverse or unsustainable the High Court should not interfere with the order of acquittal
The High Court has in the instant case made an attempt to explain away the infirmities in the testimony of eye witnesses in setting aside the order of acquittal
The High Court has in our opinion disregarded the rule of judicial prudence in converting the order of acquittal to conviction 
The trial court held that the cumulative effect of the following circumstances made the prosecution case doubtful these are i first information report was not recorded or lodged at the time it purports to have been lodged ii Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 the two eye witnesses did not give the names of assailants to Tohid iii recovery of two cartridges on 5th January
1982 one day after the occurrence iv nature and position of injuries on the body of the deceased were not consistent with the testimony of eye witnesses having regard to the local site v empty cartridges of 315 rifle which were alleged to have been fixed by Brijesh and 12 bore cartridge was alleged to have been fired by Awadesh accused causing injuries to the deceased but the same were not sent to ballistic expert for his opinion nor he was examined to support the prosecution case vi unnatural and inconsistent testimony of eye witnesses Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 vii a large number of persons were available at the scene of occurrence at the octroi Toll barrier but no independent witness either employee of the Toll barrier or of Home Guard or any other person was examined to support the prosecution
The High Court made an attempt to explain the circumstances in holding that some times the memory of the witnesses fail and a broad view of the evidence given by the eye witnesses clearly indicated that the prosecution had proved its case
We have been taken through the entire evidence and we have also closely and carefully considered the judgment of the trial court and the High Court
We are of opinion that the High Court committed error in interfering with the order of acquittal 
The first information report exhibit P 12 shows that the occurrence took place on 1415 hours while the report was lodged at 1510 hours that is to say within 55 minutes of the occurrence
The evidence on record and the attending circumstances indicate that the first information report was not lodged at 1510 hours instead it was lodged at about 521 1700 hours
Rajendra Singh PW 14 stated before the trial court that from the place of occurrence he had accompanied the police to Panna Kotwali where he lodged the report and signed the exhibit P 12
In cross examination he stated that he had gone to the Kotwali for lodging report in a police van
He further stated that the report had been written by the Police clerk on his dictation and that the police arrived at the scene of occurrence after an hour of his lodging the first information report
At an earlier stage he had stated that the police had arrived at the place of occurrence at about 330 pm and thereafter he had accompanied the police to Kotwali for lodging the report
His testimony regarding lodging of the first information report is contradictory
VP Pathak PW 20 Sub Inspector of police the investigating officer stated that it was wrong to say that the first information report exhibit P 12 was made by Rajendra Singh at Kotwali
According to him he was on duty at Collectorate and there he got the news at about 230 or 300 pm that gun shots were fired at Toll barrier on the Ajaigarh Road he reached there with few minutes along with Lakhan Singh Constable
On reaching the spot he wrote Marg intimation drew up panchnama of the dead body and sent the dead body for post mortem examination and thereafter he recorded Dehati Nalishi exhibit P 12
He asserted that first information report had been recorded at the place of occurrence
He further stated that Dehati Nalishi was recorded by him after the dead body of the deceased had been sent by him for post mortem examination which according to the document exhibit P 8 was sent at 500 pm
His statement clearly indicates that the first information report was written after 1700 hours and it was not recorded at the time it purports to have been lodged
There are material contradictions in the testimony of Rajendra Singh PW 14 and the investigating officer
Since the Sub Inspector the District Magistrate and the Superintendent of Police had reached the place of occurrence within few minutes of the incident the delay in lodging the first information report is highly suspicious
Why this delay when all officers were present and eye witnesses were present at the spot and the police station was at a distance of two furlongs
The obvious reason appears to be that the names of the assailants were not known as most likely the alleged two eye witnesses had not seen the assailants and they were not present at the scene of occurrence at the time the shooting took place in all likelihood they like others arrived at the scene after the incident
Since names of the assailants were not known the FIR was lodged with delay after deliberation
This view finds support from testimony of Tohid PW 16 and other circumstances
According to the prosecution the deceased Ram 522 Pratap Singh had sent Tohid to purchase bus tickets and had directed him to meet him at the Chungi Naka on Ajaigarh Road
He had further told Tohid PW 16 that he was apprehending danger from the accused persons so he would get into bus at the Toll barrier
After giving instructions to Tohid he proceeded to Chungi Chowki Octroi Post along with Rajendra Singh and Chhotey Bhaiya
The prosecution further alleged that after the occurrence took place Ram Pratap Singh s dead body was lying near Takhat at the Octroi barrier when Thiod arrived at the scene
He met Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 who were waiting
Tohid PW 16 testified that when he reached the toll barrier neither Rajendra Singh nor Chhotey Bhaiya disclosed the names of the assailants
Chhotey Bhaiya PW 15 in his testimony stated that when Tohid arrived at the scene of occurrence he did not enquire from him or from Rajendra Singh as to who had killed Ram Pratap Singh
At a later stage in cross examination he said that Tohid had asked Rajendra Singh PW 14 who had killed Ram Pratap Singh but Rajendra Singh told him that he would tell him later while going to the police station for lodging the first information report
According to Rajendra Singh PW 14 when Tohid reached the spot he directed him to proceed to the Collectorate and give information to the police about the murder having taken place
Tohid proceeded to the Collectorate and from there he contacted the Kotwali on telephone and gave information about the murder having taken place near the Toll barrier
Rajendra Singh PW 14 has stated that neither Tohid asked nor he told him the names of the assailants
This conduct is highly improbable and unnatural
Admittedly Tohid Rajendra Chhotey Bhaiya and the deceased were friends of each other and Tohid had been sent by the deceased to bring bus tickets and he had also told him about apprehensions to his life and according to the Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 when Tohid arrived at the scene he did not enquire about the names of the assailants although dead body of the deceased was lying at the spot
This is highly unnatural
When Tohid was cross examined on this question he tried to explain that while he was proceeding to the police station along with Rajendra Sing PW 14 to lodge the first information report the latter had told him the names of the assailants
We have noticed earlier that according to investigating officer first information report was recorded at the scene of occurrence and not at the police station
This indicates that Tohid and Rajendra Singh s story regarding their going together to Kotwali is highly suspicious
In view of the material contradiction in the statement of three witnesses Rajendra Singh PW 14 Chhotey Bhiaya PW 15 and Tohid PW 16 and further in view of the discrepancy regarding the delay in lodging the first information report 523 it is apparent that till the first information report was lodged nobody knew who the assailants were and that is why Rajendra Singh could not disclose the names of the assailants to Tohid on his arrival at the scene of occurrence
The prosecution relied upon the recovery of the two empty cartridges one of them 315 rifle and the other of 12 bore gun
By recovery of these cartridges the prosecution tried to connect the appellants with the commission of the crime as Raghvendra Singh was alleged to have fired from 315 rifle and Awadhesh with 12 bore gun
The recovery of these empty cartridges were not made on 411982 instead these cartridges were recovered on 511982 although spot map of the scene of occurrence was prepared on 411982 itself
It is interesting to note that the spot where these cartridges were recovered was shown in the spot map prepared on 411982 although recovery was made on 511982
The witnesses in whose presence recovery of the cartridges were made have not supported the prosecution
Moreover it is the admitted case of the prosecution that there was exchange of fire from both sides by the assailants as well as by Rajendra Singh and Chhotey Bhaiya but no other cartridges were recovered by the investigating officer
The investigating officer did not take into possession the licenced rifle of Raghvendra Singh appellant and the 12 bore gun of Awadhesh nor any effort was made to secure the evidence of ballistic expert to prove that the empty cartridges had been fired from the respective weapons
These circumstances indicate that empty cartridges were not recovered instead investigating officer planted these cartridges to support the prosecution case
On the evidence on record it is apparent that the Chungi Chowki Octroi Toll Barrier was manned by the employees of the Municipal Board and they were present at the spot and in addition to them there was Home Guard Office quite adjacent to the Toll Barrier and there were other residential houses near the Barrier and the place of occurrence was a busy public place
It has further come into evidence that large number of persons had gathered at the scene of occurrence but surprisingly enough no employee of Toll Barrier Home Guard or local resident came forward to support the prosecution case
The District Magistrate Superintendent of Police and other officers had also reached the spot within few minutes of the incident but none of them entered the witness box to support the prosecution case
The prosecution produced Udai Singh PW 17 and Kali Charan PW 19 who deposed that they had seen the appellants running away with weapons and that they had recognised them
It is interesting to note that Udai Singh and 524 Kali Charan are residents of Uttar Pradesh and they are close relatives of the deceased their presence at the scene of occurrence was highly doubtful and their testimony is not free from doubt as they are highly interested persons
The Trial Court rightly discarded their testimony as their statement had been recorded by the police after two months of the occurrence without there being any explanation for the delay
In his testimony Dr Jain who carried out the post mortem examination of the dead body of deceased Ram Pratap Singh stated that he found following gun shot wounds Gunshot wound No 1 a Wound of entrance One circular wound 5 mm
in diameter present two and a half inch below the left exilla and half inch posterior to left exillary lime
In the way the bullet had perforated the following organs of the body The bullet had passed through the lateral side of left 5th ribe
There was a fracture of lateral side of left 5th ribe
After that the bullet passed through the lower third of left pleura and entered in the left lung and perforated through the lung parindiama
There was through and through complete perforation of lower third of left pleura and lung
After exit from the lung it crossed through the past side of right ventricle of heart
Posterior side of right ventricle of heart was completely lacerated
After exit from the posterior side of right ventricle of heart the bullet passed through the upper border of liver and the whole upper border of liver was completely lacerated
b Wound of Exit One circular wound in diameter present over posterior and right side of chest at the level of 7th dorsel spine three and a half inch right lateral in the vertibral column
The margins of the wound were slightly lacerated
There was fracture of 9th and 10th
ribe of right posterior side
The direction of passage of bullet of gun shot in wound No 1 was antere posteriorly
Gunshot wound No2 a Wound of entrance 4 mm
diameter circular wound present over left 6th
intercostal space 2 lateral to left sterval 525 border
After passing from the left 6th intercostal space the bullet perforated the upper part of stomach
After escaping from medial side of stomach it came out from side of chest at the level of 7th dorsal spine from the 8th intercostal space of right posterior side
b Wound of exit one circular wound 5 mm
in diameter present at the level of 7th dorsal spine 2 and half inch right lateral to spinal column
The direction of bullet of gunshot in wound No 2 was entre posteriorly
Thororic cavity was hugely filled with dark coloured blood
Gunshot Wound No 3 a Wound of entrance 3 mm
diameter circular would present 1 above postre lateral aspect of right wrist
The bullet had passed through the right radius have and the wound of exit was over antro lateral aspect 1 above the right wrist joint
Wound of exit was circular 5 mm
in diameter
 These injuries could not be caused in the manner and from the place where assailants were alleged to be present at the time of firing the gun shots and the same are inconsistent with the testimony of the eye witnesses and the site plan
We do not think it necessary to discuss it in detail as the trial court has discussed this question at length and we agree with those findings
According to the testimony of Rajendra Singh and Chhotey Bhaiya PWs when the deceased got gun shot injuries he was at a higher level at the well whereas the assailants fired the shots from Bari which was at lower level by one foot from the road and the well was higher than the road by two or two and a half foot
In this view if shots were fired from Bari at the deceased who was drinking water in a sitting posture the injuries in all likelihood would have been from lower part to upper part but Dr Jain deposed that direction of the injuries caused by bullet was from upper part to lower part and the bullet was ante posteriorly
In the opinion of the doctor the person who caused injuries to the deceased was at higher level than the deceased this is wholly inconsistent with the testimony of eyewitnesses
Though medical expert s opinion is not always final and binding but in the instant case it corroborates other circumstances which indicate that the eye witnesses had not seen the actual occurrence
526 In view of the aforesaid facts and circumstances we are satisfied that the prosecution has failed to prove its case beyond all reasonable doubt and the High Court committed error in interfering with the trial court s order of acquittal
We accordingly allow the appeal set aside the order of the High Court and the appellants  conviction and restore the order of the trial court and acquit the appellants
The appellants are in jail they shall be set forth to liberty forthwith
SL Appeal allowed


Summary:
The father and brothers of Respondent No 1 were running a proprietary business which was later converted into a partnership firm by a regular deed
On the death of the father the two brothers had effectively taken control of the business and excluded Respondent No 1
The suggestion to reconstitute the partnership made repeatedly by Respondent No 1 had been ignored
The two brothers represented before the Income Tax Officer that a new deed of partnership had been executed on 1511979 to be effective from 111979 in which Respondent No 1 had no interest and on that basis the Income Tax Officer passed an order
In the suit filed by Respondent No 1 he challenged the partnership deed as being illegal and void and prayed for a decree for dissolution of the partnership firm and for accounts
Valuation of the suit was put as Rs150 ie Rs50 each for declaration rendition of accounts and for profit to the share of the plaintiff
Court fee was paid accordingly
The defendants in the suit denied the allegations made in the plaint and also challenged the valuation as being grossly undervalued and arbitrary
The issue relating to the correct valuation and pecuniary jurisdiction of the Court was decided in favour of the plaintiff
The defendants challenged the order by a Civil Revision Application which was dismissed by the High Court
This appeal by special leave is against the High Court s order
On behalf of the appellant it was contended that while relief to the tune of lakhs of rupees had been claimed the plaint had been tentatively valued for Rs50 only which is preposterous
The contention of Respondent No 1 was that a Plaintiff has the absolute right to put on the plaint any 508 value he wishes and the court has no jurisdiction to examine the matter
Allowing the appeal this Court  HELD 1
It is true that in a suit for accounts the correct amount payable by one party to the other can be ascertained only when the accounts are examined and it is not possible to give an accurate valuation of the claim at the inception of the suit
The plaintiff is therefore allowed to give his own tentative valuation
Ordinarily the Court shall not examine the correctness of the valuation chosen but the plaintiff cannot act arbitrarily in this matter
If a plaintiff chooses whimsically a ridiculous figure it is tantamount to not exercising his right in this regard
In such a case it is not only open to the Court but its duty to reject such a valuation
512D E 2
In the instant case the valuation put by the plaintiff on the plaint is arbitrary and unacceptable
However the question is remitted to the trial court for reconsideration
It is open to the trial court to take into consideration the statement in the plaint that the plaintiff has been ousted from the partnership business
If the court comes to the conclusion that the tentative valuation of the suit would be beyond its pecuniary jurisdiction it shall pass an appropriate order under Order VII of the Code of Civil Procedure
512F G Smt
Tara Devi vs Sri Thakur Radha Krishna Maharaj  Meenakshisundaram Chettiar vs Venkatachalam Chettiar   relied on
Aizaz Ahmad vs Nazirul Hasan AIR 1935 Allahabad 849 Attar Singh vs Manohar Singh ILR 1947 Nagpur 933 Mata Ram vs Daulat ILR 1938 Nagpur 588 FB Salahuddinhyder vs Dhanoolal 1945 ILR XXIV Patna 334 Shama Pershad Sahi vs Sheopershad Singh XLI IC 95 Patna Gouri Lal and others vs Raja Babu AIR 929 Patna 626 approved
Krishnaji Hari vs Gopal Narayan
AIR 1936 Bombay 166 and Ishwarappa vs Dhanji AIR 1932 Bombay 111 overruled