1 IN THE HIGH COURT OF JUDICATURE FOR RAJASTHAN AT JAIPUR BENCH, JAIPUR J U D G M E N T (1) D.B.CRIMINAL APPEAL NO.580/1983 The State of Rajasthan Vs. Athik Mohammad WITH (2) D.B.CRIMINAL REVISION PETITION NO.87/1983 Abdul Sattar Vs. State DATE OF JUDGMENT ::: March 16, 2010 P R E S E N T HON'BLE MR. JUSTICE NARENDRA KUMAR JAIN HON'BLE MRS.JUSTICE MEENA V.GOMBER Shri Piyush Kumar, Public Prosecutor Shri S.L.Sharma, for the complainant BY THE COURT : REPORTABLE/- Heard the learned Public Prosecutor as well as the learned counsel for the complainant. 2. Both cases arise out of same F.I.R. (Ex.P1) and are directed against common order dated 16th September, 1982 passed by the Sessions Judge, Jaipur City, Jaipur in Sessions Case No.59/82, therefore, they are being disposed of by this common judgment. 3. The prosecution case commenced on the basis of oral report registered as FIR No.74/82 lodged by P.W.1 Gafur Khan S/o Chand Khan at Police Station, Ramganj, Jaipur. Initially case under Sections 307 & 324 I.P.C. was registered and after the 2 injured Anwar succumbed to the injuries offence under section 307 IPC was converted into Section 302 I.P.C. The police arrested the accused and after completion of the investigation filed the challan against the accused-respondent Athik Mohammad for the offence under Section 302 I.P.C. The case was committed for trial to the court of Sessions Judge. The trial court framed charge against the accused under Section 302 I.P.C. The accused denied the charge and claimed trial. The prosecution, in support of its case, examined as many as 17 witnesses and also produced documentary evidence. No evidence was led in defence. The learned trial court after hearing the arguments of the parties and considering the record of the case, recorded a finding that the prosecution has failed to prove the charge against the accused beyond all reasonable doubt and consequently acquitted him. 4. Being aggrieved with the same, the State of Rajasthan preferred leave to appeal, which was granted by this Court and memo of leave to appeal was treated as memo of criminal appeal. Similarly, the 3 complainant also filed revision petition No.87/83 challenging the order of acquittal of the respondent. 5. The learned Public Prosecutor argued that although both the eye-witnesses namely P.W.1 Gafur Khan and P.W.2 Shamshad were declared hostile by prosecution during trial of the case, but from the statements of P.W.3 Ikbal, P.W.4 Liyakat Ali and P.W.8 Maksud the charge against respondent was fully proved. He contended that these three witnesses were also eye-witnesses and that they supported the prosecution story. He also referred to the statement of P.W.11 Babu Khan and contended that the evidence of extra judicial confession was also available in the present case, but the learned trial court did not consider the evidence properly and acquitted the accused respondent. He, therefore, contended that the learned trial court committed illegality in acquitting the accused respondent and this Court should interfere in the order of acquittal passed by the trial court and convict and sentence the accused-respondent. 6. Learned counsel for the complainant adopting the arguments of the learned Public 4 Prosecutor further argued that a blood- stained weapon 'Rapi' was recovered at the instance of the accused while in custody, therefore, the prosecution evidence was fully corroborated with the recovery of weapon – 'Rapi' and it is a fit case, wherein this Court should interfere in the order passed by the trial court. 7. Despite service of bailable warrant, none appeared on behalf of respondent. Therefore, we could not get any assistance from the side of the accused. However, we ourselves, examined the record of the trial court in detail in the light of the submissions made on behalf of the learned Public Prosecutor as well as the learned counsel for the complainant. 8. The incident in the present case took place on 8th March, 1982 at about 9:30 in morning. An oral report of the incident was lodged by P.W.1 Gafur Khan at Police Station, Ramganj, Jaipur, wherein it was stated that he runs a tea-stall-cum-hotel. On that day, at that time, he and his servant Shamshad were present in the hotel. He was making tea and Shamshad was making 'Roti'. Deceased Anwar was sitting in front 5 of him on the floor. He gave two cups of tea to Athik and Anwar. Anwar lit his 'Bidi' and at that time respondent came from his place and took weapon out from his pocket and gave a blow of sharp edged weapon 'Rapi' in his stomach and gave further 7 to 8 blows on his body. He and his servant both came for rescue, but Athik ran away from the spot and deceased Anwar could not get up from the place and fell down outside the Stall. It was further stated in the report that thereafter Liyakat, Mujammil, Guljar, Afjal, Ikbal and Maksud also came there. It is relevant to mention that F.I.R. (Ex.P1) was not only signed by P.W.1 Gafur Khan, but it was also signed by other persons namely Guljar, Maksud, Mujammil, Mohd.Ikbal and Afjal. From the First Information Report (Ex.P1), it is clear that there were two eye-witnesses of the incident namely P.W.1 Gafur Khan and P.W.2 Shamshad. During trial of the case, both the eye-witnesses were declared hostile by the prosecution and they were cross examined by the Public Prosecutor but nothing came on record to prove the charge against the accused from their statements. Other persons named in the 6 F.I.R. namely Aslam, Mujammil and Afjal were not examined by the prosecution for the reasons best known to it. The prosecution examined P.W.3 Ikbal, P.W.4 Liyakat Ali and P.W.8 Maksud and they tried to support the prosecution case before the trial court by deposing that the accused Athik inflicted injuries by weapon 'Rapi' on the person of deceased Anwar. 9. We have examined the statements of P.W.3 Ikbal, P.W.4 Liyakat Ali and P.W.8 Maksud carefully along with Ex.P1 and the statements of these three witnesses recorded during investigation of the case under Section 161 Cr.P.C. including Ex.D2 and we find that Ex.P1 is duly signed by P.W.3 Ikbal, P.W.4 Liyakat Ali and P.W.8 Maksud also. From the perusal of Ex.P1, it is clear that these three witnesses were not present when injuries were alleged to have been inflicted by the accused on the person of deceased Anwar. It is mentioned in Ex.P1 that they came subsequently. Therefore, it is clear that the statements of these witnesses P.W.3 Ikbal, P.W.4 Liyakat Ali and P.W.8 Maksud are contrary to the report Ex.P1, which was signed by them also. It is 7 relevant to mention that during trial of the case, these witnesses tried to explain that they put their signatures on Ex.P1 on the next day in the Police Station. If it is assumed then it is clear that either their statements are not correct or the contents of Ex.P1 itself are not correct. In case Ex.P1 goes then the entire case of the prosecution fails. 10. We have also examined the statements of these witnesses recorded by the Investigating Officer during investigation of the case including Ex.D1 and we find that they never told the Investigating Officer that they were eye-witnesses to the incident. Therefore, their statements recorded during the trial of the case, were contrary to their own statements recorded by the police during investigation of the case. In these circumstances, we find that the finding of the learned trial court that prosecution evidence is not trustworthy and reliable, is based on proper discussion of the evidence. The learned Public Prosecutor as well as learned counsel for the complainant could not point out any illegality or perversity in the finding of 8 the trial court. 11. So far as the evidence of extra judicial confession by the accused before P.W.11 Babu Khan is concerned, it is sufficient to mention that this is a case of eye-witnesses, where direct evidence is available in the case then the other evidence like extra judicial confession is of no avail. It is also relevant to mention that it is a settled law that evidence of extra judicial confession is a weak type of evidence and the conviction of an accused on that basis is not fair. 12. So far as recovery of weapon 'Rapi' with bloodstains is concerned, it is sufficient to observe that when there is no direct evidence available in the case, then the same alone is not sufficient to convict the accused. Such evidence can be used only for the purpose of corroboration and cannot be read as a substantive piece of evidence. It is also relevant to mention that from Ex.P24 FSL report it is not clear that the blood stains found on 'Rapi' were of human being. 13. Hon'ble Apex Court in State of Madhya Pradesh vs. Bacchudas alias Balaram & 9 Ors. (AIR 2007 SC 1236) observed that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. Hon'ble Apex Court further observed that the order of acquittal should not be interferred with unless there are some compelling and substantial reason or circumstances for doing so. 14. Recently in the matter of Dhanpal vs. State by Public Prosecutor, Madras (2009 (10) SCC 401) Hon'ble Apex Court again considered the powers of appellate courts to interfere in the order of acquittal recorded by the trial court and held that the appellate court may only over-rule or otherwise disturb the trial court's acquittal order if it has “very substantial and compelling reasons” for doing so. It was further held that if two reasonable or possible views can be reached and one leading to acquittal and other to the conviction, then the High Court/appellate courts must rule in favour of the accused. Para 39 of the aforesaid judgment is reproduced as under:- 10 “39. The following principles emerge from the cases above: 1. The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court's acquittal bolsters the presumption that he is innocent 2. The power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law, but the appellate court must give due weight and consideration to the decision of the trial court. 3. The appellate court should always keep in mind that the trial court had the distinct advantage of watching the demeanour of the witnesses. The trial court is in a better position to evaluate the credibility of the witnesses. 4. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has “very substantial and compelling reasons” for doing so. 5. If two reasonable or possible views can be reached – one that leads to acquittal, the other to conviction-the High Courts/appellate courts must rule in favour of the accused.” 15. If we see the present case, we find that finding of the learned trial court is based on proper appreciation of evidence and no illegality and perversity has been pointed out in it. Even if, for the sake of arguments, it is assumed that a view, as per 11 contention of the learned Public Prosecutor, is also possible, then also it cannot be said that view taken by the trial court, on appreciation of prosecution evidence is not possible. In these circumstances, as per the settled proposition of law that even if two views are possible on the appreciation of evidence, the view which is favourable to the accused should be adopted. In these circumstances, we do not find any substantial or compelling reason to interfere in the impugned order of acquittal of respondent passed by trial court. 16. In view of above discussions, we do not find any merit in the appeal as well as the revision petition and both are accordingly dismissed. (Meena V.Gomber) J. (Narendra Kumar Jain) J. BKS/