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.183/1984 State of Rajasthan Vs. Samsuddin & Ors. WITH (2) D.B.CRIMINAL REVISION PETITION NO.4/1984 Noor Mohd. Vs. Shamsuddin & Ors. DATE OF JUDGMENT ::: March 26, 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 Azad Ahmed for complainant and for petitioner in Revision Petition No.4/1984 Shri B.K.Pathak & Shri R.C.Pathak, for the respondents BY THE COURT: Heard the learned counsel for the parties. 2. The above appeal as well as revision petition both are directed against common order passed by the learned Additional Sessions Judge, Deeg (Bharatpur), therefore, both the cases are being disposed of by this common order. 3. Appeal filed by the State as well as revision petition both are directed against the impugned judgment and order dated 1st October, 1983 passed by Additional Sessions Judge, Deeg (Bharatpur) in Sessions Case No.40/83, whereby the learned trial court 2 acquitted all the 15 accused respondents of the charge under Sections 148, 302 & 302/149 I.P.C. 4. Before considering the appeal on merits, it is relevant to mention that the State of Rajasthan preferred D.B.Cr.Leave to Appeal No.34/1984 against all the 15 accused respondents, but this Court, vide order dated 27th March, 1984 refused to grant leave to appeal against accused-respondents No.2 to 6, 12, 13 & 15 namely Abdul Rehman @ Abdul S/o Appu, Eliyas S/o Mohar Singh, Safeda S/o Samela, Ishaq S/o Dhanmali, Sammi S/o Assu, Fajru @ Chhoku S/o Mohar Khan, Juharu Khan S/o Safeda and Gujariya S/o Chhote Khan. Leave to appeal was granted against accused-respondents No.1, 7 to 11 & 14 namely Samsuddin @ Samsu S/o Munira, Munshi S/o Noor Khan, Kallu Khan S/o Munshi, Danadan S/o Munshi, Kamruddin S/o Munira, Jamaluddin @ Jama Ji S/o Munira and Munira S/o Himmat and therefore, memo of leave to appeal was treated as memo of criminal appeal against remaining 7 accused- respondents only. 5. It is further pertinent to mention that out of these 7 respondents also 2 3 respondents namely Munshi S/o Noor Khan and Munira S/o Himmat, died during the pendency of the appeal and State appeal against them was also dismissed as abated. Therefore, at present, there are only 5 accused- respondents. 6. D.B.Cr.Revision Petition No.4/1984 was also preferred by the complainant against all the 15 accused-respondents and the revision petition was also listed for admission on 27th March, 1984 and this Court dismissed the revision petition against 8 accused-respondents against whom leave to appeal was refused and the revision petition was admitted against remaining 7 accused- respondents, out of whom, two accused persons namely Munshi and Munira since died, the revision petition was also dismissed against both of them as abated. 7. Briefly stated, facts of the case are that the incident is alleged to have taken place on 13th February, 1983 at about 10:00 p.m. and the report was lodged at mid night itself i.e. at 1:00 a.m. on 14th February, 1983 at Police Station, Sikri. P.W.1 Noor Mohd in his report Ex.P1 alleged that his brother Chaw Khan and their mother 4 were sleeping inside the house and all of a sudden, he heard noise of his brother Chaw Khan and went inside the house, where he saw that the accused persons (total 15 in number) were inflicting injuries by Ballams and Pharsas on the person of his brother. Chaw Khan sustained number of injuries and he was taken to the hospital, but he died. On the basis of above report, F.I.R. No.19/1983 was registered at Police Station, Sikri, District, Bharatpur under Sections 147 & 302 I.P.C. During investigation, all the 15 accused were arrested. The police, after investigation, filed charge-sheet against all the 15 accused persons for the offences mentioned therein. 8. The case was committed for trial to the court of Sessions, where charges for the offence under Sections 148, 302 & 302/149 I.P.C. were read over to all the accused. In support of its case, the prosecution examined P.W.1 to P.W.15 and also filed documentary evidence. Thereafter, statements of accused were recorded under Section 313 Cr.P.C. No witness was examined in defence. Learned trial court, after considering the submissions of the parties and examining the 5 record, acquitted all the accused persons of all the charges levelled against them. 9. Learned Public Prosecutor as well as complainant's counsel argued that learned trial court has erred in disbelieving the prosecution witnesses in particular the statements of P.W.1 Noor Mohd., P.W.2 Sugana, P.W.4 Mehtab, P.W.5 Nabi Khan, P.W.6 Israel and P.W.8 Mallah. According to them, there was consistent evidence against Jamaludin @ Jamaji, Samsuddin @ Samsu, & Kamruddin sons of Munira, Munshi S/o Noor Khan, Kallu Khan & Danadan sons of Munshi and Munira S/o Himmat. Only on account of minor contradictions, learned trial court disbelieved the entire evidence against all the fifteen accused persons. It was pointed out that since accused Munshi and Munira had expired, the appeal against them has already stood abated and be dismissed on this ground. Referring to the statements of above mentioned six eye-witnesses along with the statements of P.W.15 Dr.Rajendra Prasad Gupta and Ex.P11 post-mortem report of deceased Chaw Khan, it was submitted that the learned trial court committed an illegality by discarding the entire evidence 6 and acquitting all of them and that it was a fit case wherein this Court should interfere and the order of acquittal be reversed. 10. On the other hand, Shri B.K.Pathak, learned counsel for the accused-respondents submitted that the trial court was perfectly justified in disbelieving the testimony of so called 6 eye-witnesses namely P.W.1 Noor Mohd., P.W.2 Sugara, P.W.4 Mehtab, P.W.5 Nabi Khan, P.W.6 Israel and P.W.8 Mallah as according to him, the prosecution could not prove its case beyond doubt because of the reasons assigned by the trial court for disbelieving their testimony and same is based on proper appreciation of evidence. Thus, there was no illegality or perversity in the findings of the learned trial court. He contended that in written report Ex.P1, Noor Mohd. P.W.1 named 15 persons as assailants, whereas in his statements before the court he named only 14 persons intentionally and did not name Gujaria. He contended that as per the written report Ex.P1 all the accused were laced with 'Ballams' and 'Pharsas', but there is recovery of one Ballam only from accused Samsuddin vide Ex.P9, but said recovery, 7 also according to the counsel, cannot be said to be at his instance as there is no information under Section 27 of the Evidence Act. Hence, the recovery of one Ballam from Samsudin can also not be used against the accused. The prosecution has shown recovery of a knife at the instance of Kamruddin vide Ex.P5, but that also does not help the prosecution for three reasons; (i) That there is no mention of knife in the F.I.R.; (ii) that P.W.13 Sharabu, who is stated to be Motbir of the Ex.P5, does not support the same to have been made in his presence; and (iii) the information under Section 27 of the Evidence Act Ex.P4 is not proved by any independent witness. 11. He also contended that no 'Pharsa' has been recovered from accused, however, P.W.1 Noor Mohd tried to connect accused Kamruddin with Chhuri and Ballam both but of no avail as there was no mention of 'knife' or 'Chhuri' in Ex.P1 FIR. Recovery of bloodstained shoes of deceased, alleged to have been made vide Ex.P6, also does not support prosecution as there is no report of Serologist with regard to the group of human blood and further that at the place of 8 occurrence shown at mark 'A' in Ex.P3 – site plan, no blood was found. Therefore, it is clear that the incident did not take place at the place marked as 'A' in the site-plan. The contention of learned counsel for accused was that the finding of trial court was based on proper appreciation of evidence and did not require any interference. Further that, this being an appeal against the order of acquittal, the appellate court has to be very cautious and should have compelling reasons to disturb the same, which are absent here. 12. Shri Pathak further argued that it is settled law that order of acquittal should not be disturbed unless finding of the trial court is perverse. The learned Public Prosecutor has not pointed out any perversity in the finding of the learned trial court. Therefore, this Court should not interfere in the order of acquittal. He, therefore, contended that State appeal as well as revision petition filed by the complainant be dismissed. 13. We have considered the submissions of the learned counsel for the parties in the light of reasons assigned by the trial 9 court for acquittal of the accused- respondents. 14. Learned trial court has assigned following reasons for disbelieving the testimony of so called P.W.1, P.W.2, P.W.4, P.W.5, P.W.6 & P.W.8:- (a) That the witnesses were closely related, but their conduct was unnatural. P.W.1 Noor Mohd. was real brother of deceased, P.W.2 Mst. Sugara his mother, P.W.4 Nabi Khan brother-in-law, P.W.6 Israel S/o Mallah cousin brother and P.W.8 Mallah uncle of deceased Chaw Khan, all of them claimed to have witnessed the incident but strangely none of them intervened so as to rescue the deceased. Admittedly, none of them sustain any injury whatsoever, therefore, it is doubtful that they saw the incident; (b) P.W.1 Noor Mohd. in his statements admitted that at the time of incident, there was no light and he could not see as to what injury was inflicted by whom on the person of Chaw Khan; 10 (c) P.W.1 Noor Mohd. has stated that he lodged the report after post- mortem of Chaw Khan, whereas this fact is against the record; He further deposed that the report was lodged by him at 1:00 a.m. at the police station; (d) that P.W.1 Noor Mohd. later in his deposition stated that there were two torches, one with him and the other with Israel, whereas Israel does not say so. The torches have been stated to be with Noor Mohd. and Mehtab; (e) that P.W.2 Mst. Sugara stated that there were three torches and lantern also, whereas Noor Mohd. did not mention about any lantern lit at the time of incident as he stated, there was no light and he could not see as to who inflicted which injury; (f) that the accused and complainant party were neighbours and they could have been easily identified even if there was no light. There appears to be no reason why the statements were 11 improved by bringing the story of torches and lanterns; (g) that P.W.4 Mehtab and P.W.8 Mallah stated about meeting of accused and deceased on their way to Munira's house and that they did not see any incident at Chaw Khan's house although in the court they claim to have seen the incident; (h) that there is discrepancy between P.W.6 & P.W.8 also, as according to P.W.6 Israel, P.W.8 Mallah did not see the incident, whereas P.W.8 Mallah claims to have seen the incident; (i) that Mehtab and Nabi claim to be present at Chaw Khan's house when the incident took place, as they claimed to be sleeping in Chaw Khan's house on that night. They did not explain as to why they were sleeping in the house of Chaw Khan when Mehtab and Israel's houses were situated near that of deceased and P.W.5 Nabi Khan was resident of village Mojpur. He did not explain as to why did he stay in the house 12 of deceased on that night. From Ex.P1 - First Information Report, it is clear that this fact was not mentioned that these three witnesses were sleeping and were available in the house of Chaw Khan at the time of incident; (j) that P.W.6 Israel admitted in his cross examination that there was no light in the house of Munira at the time of incident; (k) that there are different versions of these eye-witnesses about the incident and about taking away Chaw Khan to the house of Munira; (l) that in Ex.P1 – F.I.R., the names of 15 persons were mentioned, whereas P.W.1 Noor Mohd., in his examination in chief, stated that there were total 15 persons but he named only 14 persons and did not name accused Gujaria deliberately; (m) that the statements of P.W.2 Mst. Sugara was recorded on 11.8.83 and she named only 6 accused persons and stated that remaining 8 accused 13 persons were not present at the place of incident. She named one Santu also being involved in the incident, whose name did not find place in FIR Ex.P1; (n) that P.W.4 Mehtab and P.W.5 Nabi deposed that only 7 accused were involved in the incident and not 15 or 14 persons as stated by P.W.1 Noor Mohd. or as mentioned in Ex.P1 – FIR. 15. Apart from above, learned trial court has also assigned other reasons for disbelieving the testimony of these eye- witnesses. 16. We have carefully scanned the statements of P.W.1, P.W.2, P.W.4, P.W.5, P.W.6 and P.W.8 and after careful examination we agree with the learned defence counsel that the finding of the learned trial court for disbelieving their testimony cannot be said to be perverse as it is based on proper appreciation of evidence. Learned Public Prosecutor also could not point out any illegality or perversity in the said finding. 14 17. Since there are material contradictions, improvements in the statements of witnesses and the circumstantial evidence of recovery has not been proved in accordance with law as well as the unnatural conduct of eye-witnesses, (who happen to be the close relatives of deceased) in not intercepting to rescue the deceased compel us to hold that their presence at the spot is doubtful as none of them received any injury. Had they tried to save deceased, they would have in all probability, received some or the other injury. Facts narrated in Ex.P1 appear to have been exaggerated by Noor Mohd. so as to implicate all the fifteen accused on account of enmity. Material discrepancies, unnatural conduct and improper recovery show that this is not a fit case, which warrants interference by this Court. 18. It is also relevant to mention that present appeal is directed against an order of acquittal passed by learned trial court and law in this regard is settled that even if two views are possible, one pointing to the guilt of the accused and another for their innocence, then the view which is 15 favourable to the accused should be adopted and the order of acquittal should not be interfered and unless there are compelling and substantial reasons for doing so. Hon'ble the Apex Court in Awadesh and Anr. vs. State of M.P. (AIR 1988 SC 1158) considered its earlier judgment in G.B.Patel Vs. State of Maharashtra (AIR 1979 SC 135) held as under:- “In G.B.Patel vs. State of Maharashtra, (1979) 2 SCR 94; (AIR 1979 SC 135) this Court quoted with approval the principles laid down by Privy Council in Sheo Swarup v. King Emperor, AIR 1927 PC 227 (2), 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 e.g. (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 16 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 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.” In view of above discussions, we do not find any merit in any of the submissions of the learned Public Prosecutor as well as learned counsel for the complainant. The State appeal as well as the revision petition both are accordingly dismissed. (Meena V.Gomber) J. (Narendra Kumar Jain) J. BKS/