minal Appeal No 554 of 1984
From the Judgment and Order dated 2791984 of the Allahabad High Court in Government Appeal No 1634 of 1977 MR Sharma Ms Anjana Sharma and RD Upadhayaya for the Appellant
Arvind K Nigam Ms Kamini Jaiswal and AS Pundir for the Respondent
The Judgment of the Court was delivered by GN 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 accusedappellant Mohd Aslam under Section 302 IPC 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 accusedappellant is the son of Abdul Salem
Both the parties were residents of village Bara 448 within Police Station Akbarpur in the District of Kanpur
On December 25 1975 at about 600 PM 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 PW1 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 PW2 Qamruddin PW3 and Abdul Hamid were standing near the said Gumit and had also been talking
There was light coming from electric bulbs at that place
At that time the accusedappellant 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 PW10 took Mohd Umar to Lala Lajpatrai Hospital at Kanpur for treatment and at 750 PM
RC Asthana PW8 examined Mohd Umar
Abdul Hamid went to his house and got a report of the occurrence written by Mohd Raizwan PW4 and took the said report to Akbarpur Police Station which was about 4 miles away and lodged the FIR at 715 PM 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 755 PM
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 PW6
Mohd Umar died in the hospital on January 4 1976 and his post mortem examination was performed by Dr BD Misra at Kanpur on January 51976
The accusedappellant 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 accusedappellant
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 accusedappellant under Section 302 IPC and sentenced him to suffer rigorous imprisonment for life
Learned counsel appearing for the accusedappellant 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 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 accusedappellant
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 cusedappellant 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 600 PM as alleged by the prosecution it is practically impossible to lodge the said written FIR at Akbarpur Police Station by 715 PM 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 PW4 and then lodged the FIR 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 accusedappellant
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 accusedappellant 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 suggestiongiven 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 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 accusedappellant
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 accusedappellant
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 FIR at 715 pm 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 600 PM
We do not think that such FIR 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 FIR 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
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 accusedap 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 PW1 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 PW3 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 accusedappellant or his father
Qamruddin PW3 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 accusedappellant
In view of the dismissal of this appeal the bail stands cancelled and the accusedappellant is directed to surrender and serve out the sentence
VPR Appeal dismissed


Summary:
The appellants  predecessor was inducted as an usufructuary mortgagee of certain fields
On the expiry of redemption period the respondents filed a suit for redemption which was decreed subject to payment of damages for improvements
On appeal the District Court confirmed the redemption decree but set aside the decree for damages
In second appeal the appellants raised a new plea that they were deemed tenants by operation of Section 2 A of the Bombay Tenancy Act 1939
It was also contended on their behalf that Section 85 A of the Act ousted the jurisdiction of the Civil Court to decide the dispute of tenancy rights In pending suit
Rejecting both the contentions the High Court confirmed the decree of the appellate court
Against the judgment of the High Court an appeal was flied in this Court
Dismissing the appeal this Court HELD 1
The plea based on Section 2 A was sought to be raised for the first time in second appeal before the High Court
It was neither raised in the pleadings nor argued either before the trial Court or the appellate court
Therefore the High Court rightly did not permit the appellants to raise the plea of a deemed tenancy as the said claim needs investigation based on factual foundation which was lacking
Consequently the question whether under Section 85 A the Civil Court had jurisdiction or not need not be gone into
580 D E Salman Raje vs Madhavsang Benesang ILR 1963 Guj 722 cited