Case: Hari Chand &amp; Another Vs. State of Delhi

Kanahiya and in belabouring prosecution witnesses Attro and Ram Pal. Consequently their conviction and sentence as imposed by the High Court under S.302 read with S.34 I.P.C. for causing the death of Sohan and Kanahiya and their conviction and sentence under S.325 read with S.34 for causing grievous hurt to prosecution witness Ram Pal and their conviction and sentence under S.323 read with S.34 for causing simple injuries to Smt. Attro cannot be found fault with. Point No. 1 is, therefore, answered in the affirmative while point No. 3 is answered in the negative. 28. Point No. 2. It is now well stated that in appeal against acquittal the High Court is entitled to reappreciate the evidence if it is found that the view taken by acquitting court was not a possible view or that it has a perverse or infirm or palpably erroneous view. In the case of Uppari Venkataswamy v. Public Prosecutor. High Court of Andhra Pradesh, 1995 (7) SCALE 147 : (1996 AIR SCW 98) a Division Bench of this Court consisting of M. K. Mukherjee, J. and one of us, S. B. Majmudar, J., has made the following observations on this aspect in para 28 (of SCALE) (Para 27 of AIR) of the Report : "It is now well settled by a catena of decisions of this Court that in an appeal against acquittal the appellate court can interfere with the findings of fact recorded by the Trial Court and can upset the acquittal by reappreciating evidence if it is found that the view taken by the acquitting court was not a possible view on the evidence on record. In this connection, we may refer to the decision of this Court in the case of State of Punjab v. Ajaib Singh, (1995) 2 SCC 486 : (1995 AIR SCW 950 ) ; R. M. Sahai, J. speaking for this Court made the following pertinent observations in this connection in para 7 of the Report : ... We agree that this Court is not precluded or the court hearing the appeal against acquittal is not prevented from examining and reappreciating the evidence on record. But the duty of a court hearing the appeal against acquittal in the first instance is to satisfy itself if the view taken by acquitting court... .... .... ... was possible view or not. And if the court comes to conclusion that it was not, it can on reappreciation of evidence reverse the order..." It was also observed in the said decision that the appellate court would not be entitled to interfere unless the view of the acquitting court is found to be perverse or infirm or palpably erroneous. We have, therefore, to see whether on the facts of the present case the Trial Court was justified in acquitting the present accused of the offences with which they were charged by brushing aside the eye witness account of injured P. Ws. 1 and 4 to 7. ...." So far as the facts of the present case are concerned it emerges on record that the eye witness account of prosecution witnesses Smt. Attro and Ram Pal who were injured eye witnesses was acceptable to the Trial Court so far as their version about involvement of convicted accused Likhi and Chandgi is concerned. But the very same evidence of injured eye witness against the appellants was not relied upon by the Trial Court by adopting a view which was clearly against the weight of evidence and not a reasonable one. In paragraph 44 of the judgment of the Trial Court it has been observed that the involvement of these accused was not free from doubt. The learned Trial Judge observed that they were not armed with any weapon. The assertion of Ram Pal that they were armed with lathis and they had joined others in inflicting lathi blows on him and other victims is totally belied by Attros conspicuous silence about the fact. So far as this observation of the learned Trial Judge is concerned it was clearly against evidence for the simple reason that Attros statement recorded at the hospital clearly showed that these witnesses were armed with lathis. As seen earlier even before the Trial Court she deposed that all the eleven accused had come to their baithak to attack them. Consequently the view of the Trial Court giving benefit of doubt to the accused was clearly against the weight of evidence and patently a perverse and unreasonable view. In this connection the High Court was justified in observing that witness. Badley, P.W. 12 was examined only for proving identification of dead bodies of Sohan Lal and Kanahiya while witness Ajit Ram P.W. 18 was examined for proving the recovery of ballam and lathis. But during their cross examination they tried to support the accused and had gone out of their way in deposing that the accused were not present on the scene of offence at the relevant time. The evidence of witness Badley in his cross examination was clearly unreliable and was right rejected by the Trial Court. Consequently the evidence of these two witnesses could not have been relied upon by the Trial Court for exonerating the accused and in holding that the accused would not be present on the scene of offence on the date of incident. We have already seen earlier how the defence had failed to establish the theory of alibi still the Trial Court has accepted the theory of alibi as put forward on behalf of the defence and that is how benefit of doubt was extended to the appellants. The said reasoning of the Trial Court was clearly perverse, unreasonable and against the weight of evidence. Under these circumstances the High Court was perfectly justified in interfering in appeal against acquittal and in coming to its own conclusion by appreciating the evidence led by the prosecution. The second point for determination also, therefore, has to be held against the appellants by answering it in the affirmative.

Court's decision (1 = petition accepted / positive for appellant, 0 = rejected / negative): 0

Reasoning from the judgment:
0[ds]As the prosecution evidence reveals, injured Kanahiya, Sohan Lal and Ram Pal as well as Smt. Attro were removed by Police witness Dhan Singh to AIIMS in the van of the control room. When Dhan Singh enquired from the doctor Kanahiya was found dead and soon thereafter Sohan Lal also died in the hospital. Ram Pal was declared unfit to make a statement. It is also clear from the medical reports that all the four injured had been removed to AIIMS and were with the doctors by 11.45 a.m. The ruqqa itself was dispatched by 12.50 p.m. Smt. Attro was first examined by doctors and thereafter her statement was recorded by A.S.I. Dan Singh and the FIR was registered at 1.15 p.m. Thus at the earliest opportunity without any undue delay the FIR was registered at the police station. As the incident had taken place at about 9.00 a.m. in the morning of 18th December, 1974 and when the message about the incident was flashed to the police control room at about 9.45 a.m. as deposed to by Harish Chander PW 19, it is obvious that it took sometime before the A.S.I. Dhan Singh could reach the spot. He reached there by about 10.30 a.m. and simultaneously police control room van also reached. It was thereafter that all four injured were taken to AIIMS where the doctors examined them by 11.45 a.m. It is to be noted that when Smt. Attro herself was an injured victim and when the doctors had to examine Kanahiya, Ram Pal and Sohan Lal who were very seriously injured and out of whom Kanahiya was declared dead and Sohan Lal died a little later and when Ram Pal was in a seriously injured condition having lost consciousness it would naturally take sometime before Smt. Attro could be questioned by the police. Her statement could be recorded at the earliest opportunity possible at the hospital when she was fit to make a statement and give information regarding the incident. Consequently the High Court was perfectly justified in taking the view that there was no undue delay in recording the FIR and it was a true and correct recording of the earliest version about the incident given by injured witness Smt.is true that in her deposition before the Trial Court she tried to rope in apart from the appellants. It is true that in her deposition before the Trial Court she tried to rope in apart from the appellants and convicted caused Likhi Ram and Chandgi, other accused who have been acquitted by the Trial Court and whose acquittal has been confirmed by the High Court. But only because she tried to exaggerate her case at the stage of trial it cannot be said that her evidence otherwise reliable against the present appellants also should be disbelieved. The High Court, therefore, was justified in sifting her evidence and in trying to see whether after discarding the unbelievable part of her evidence, the rest of her evidence against the present appellants which had stood the test of cross examination could be reliedour view the evidence of Smt. Attro in so far as she consistently deposed in connection with the role of the appellants and which had run parallel to her FIR was rightly accepted by the High Court. It is true that in the FIR as well as in her evidence before the Trial Court she had not ascribed any positive act on the part of the appellants in giving lathi blows to her brothers but she had clearly stated about their presence on spot and being party to the criminal assault on all the four of them in the baithak of Ram Pal which resulted in the death of her two brothers Sohan Lal and Kanahiya and in grievous injuries to her brother Ram Pal as well as to herself. It is also true that she had not stated in her evidence that the appellants were armed with lathis when they entered the baithak along with Chandgi and Likhi Ram to attack them and in the FIR she had also stated that they were armed with lathis. Consequently prosecution has clearly brought out the involvement of present appellants in the incident wherein they shared common intention with accused Likhi and Chandgi in giving fatal injuries to the two deceased as well as injuries to the tow injured witnesses Ram Pal and Smt. Attro.21. So far as Attro is concerned the medical evidence shows that she had suffered threecontusion on the upper part of the shoulder, (2) abrasion on the fore arm, and (3) haematoma left side of the back of the skull. This evidence supported her version that she had suffered injuries on spot at the time of incident when she tried to save her brother Sohanpart of his evidence has well stood the test of cross examination and fully supports the eye witness account of Smt. Attro so far as the involvement of the present appellants in the incident is concerned. Once it is found that appellants entered the baithak of witness Ram Pal armed with lathis in company of accused Chandgi and Likhi and facilitated the attack by Likhi and Chandgi on the witness and the two deceased, it cannot be urged that they did not share the common intention of murdering the concerned victims of their assault. S.302 read with S.34, I.P.C. would squarely get attracted against the present appellants along with accused Likhi and Chandgi who actually mounted the assault on these victims in company of the present appellants. Having given our anxious consideration to the eye witness account deposed to by prosecution witness Attro, PW 7 and Ram Pal, PW 8 in the light of the FIR we find that the High Court was perfectly justified in placing implicit reliance on the eye witness account of PWs 7 and 8 for convicting the appellants of the offences with which they wereis true that in her evidence she has not stated that the appellants also mounted attack with lathis and only the other two accused Likhi Ram and Chandgi were involved in the actual assault. However, PW 8 Ram Pal has clearly stated that the present appellants were also wielding lathis and had taken part in the assault on Kanahiya. That part of the evidence has well stood the test of cross examination. Thus, their presence being armed with lathis in company with the other two accused and their participation in the assault is established on record. It is easy to visualise that they would have come together sharing common intention to liquidate the victims and would not have come just for the sake ofhave also seen earlier how the said suggestion could not be accepted for the simple reason that if Badley and Prabhu were out to falsely involve the appellants and would have prevailed upon Smt. Attro to falsely involve them, Badley while being examined in Sessions Case as PW 12 would not have gone out of his way in supporting the appellants. Consequently, the submission of the learned senior counsel Shri Jain for discrediting the eye witness account of Smt. Attro as recorded in her statement at the earliest at the hospital cannot befar as this contention is concerned it must be kept in view that while appreciating the evidence of witnesses in a criminal trial especially in a case of eye witnesses the maxim falsus in uno, falsus in omnibus cannot apply and the Court has to make efforts to sift the grain from the chaff. It is of course true that when a witness is said to have exaggerated in his evidence at the stage of trial and has tried to involve many more accused and if that part of the evidence is not found acceptable the remaining part of evidence has to be scrutinised with care and the Court must try to see whether the acceptable part of the evidence gets corroborated from other evidence on record so that the acceptable part can be safely relied upon. So far as the aspect of corroboration to the evidence regarding the eye witness account of witnesses Ram Pal and Attro about the involvement of appellants is concerned, the said corroboration is found from the earliest recorded statement of Smt. Attro at thethat apart, their very presence on the spot armed with lathis could clearly indicate that they shared common intention with the remaining accused Likhi and Chandgi who in their company mounted the assault on the victims. Even the cross examination of these eye witness has also proceeded on the basis that they were present on the scene of offence and had suffered from injuries in the assault. In this connection Shri Jain submitted that so far as Smt. Attro is concerned in her evidence she did not state that the present appellants were armed with lathis. It is of course true that in her evidence she only stated that appellants Hari Chand and Sarup had come to their baithak in company of Likhi and Chandgi and that Likhi was armed with ballam and Chandgi was armed with lathi. However, she further stated that they were all eleven accused who had come to their baithak to attackis true, as stated by him, that he could not see the assault on Smt. Attro but evidence regarding assault on her is supplied by the cogent version deposed to by injured eye witness Smt. Attro herself. The eye witness account of injured witness Ram Pal, PW 8 and Smt. Attro, PW 7 has well stood the test of cross examination. Consequently the submission of learned senior counsel Shri Jain for not accepting the eye witness account of these two witnesses so far as the present appellants are concerned, cannot befar as this submission is concerned it has to be kept in view that the remaining seven accused were acquitted by the Trial Court and which acquittal was accepted by the High Court on the ground that there was no clear evidence regarding their involvement in the incident and that the injured eye witnesses Ram Pal and Attro had specifically deposed about the involvement of only four accused, namely, Likhi, Chandgi and the present two appellants who were stated to have entered the baithak and mounted attack and when in the FIR it was mentioned that other seven accused were standing outside the house on the road. Hence they were given benefit of doubt. Only because such benefit of doubt was given to the remaining seven accused it cannot be said that clinching evidence against the remaining four accused should also beis in evidence that the place of offence in Village Tughlakabad is not at a long distance from Delhi where the accused was appearing in his L.L.B. examination. It is not in dispute that examination was being held in the morning from 9.00 a.m. for three hours. Therefore, after finishing the examination on 17th by 12.00 noon. and when the next examination was on 19th December there was ample opportunity of the accused to go to his own village. Consequently it is not improbable that the accused could be present on the scene of offence on 18th which was an off day for him so far as his examination was concerned. Consequently the aforesaid evidence does not probabilise the theory of alibi and absence of the accused from the scene of offence on that fateful morning of 18th December 1974. It is well established that it is for the accused to prove the case of alibi to the hilt. The aforesaid evidence of the alibi led on behalf of both the appellants does not meet this test. It must, therefore, be held that the defence has failed to establish the plea of alibi concerning the present appellants. The High Court, therefore, was justified in not accepting this version of the accused. Points Nos. 1 and 3, therefore, will have to be answered against the appellants. It must be held that the prosecution has been able to establish beyond shadow of reasonable doubt that both the accused had shared the common intention with convicted accused Chandgi and Likhi in liquidating the victims Sohan and Kanahiya and in belabouring prosecution witnesses Attro and Ram Pal. Consequently their conviction and sentence as imposed by the High Court under S.302 read with S.34 I.P.C. for causing the death of Sohan and Kanahiya and their conviction and sentence under S.325 read with S.34 for causing grievous hurt to prosecution witness Ram Pal and their conviction and sentence under S.323 read with S.34 for causing simple injuries to Smt. Attro cannot be found fault with. Point No. 1 is, therefore, answered in the affirmative while point No. 3 is answered in theis now well stated that in appeal against acquittal the High Court is entitled to reappreciate the evidence if it is found that the view taken by acquitting court was not a possible view or that it has a perverse or infirm or palpably erroneousfar as the facts of the present case are concerned it emerges on record that the eye witness account of prosecution witnesses Smt. Attro and Ram Pal who were injured eye witnesses was acceptable to the Trial Court so far as their version about involvement of convicted accused Likhi and Chandgi is concerned. But the very same evidence of injured eye witness against the appellants was not relied upon by the Trial Court by adopting a view which was clearly against the weight of evidence and not a reasonablethe view of the Trial Court giving benefit of doubt to the accused was clearly against the weight of evidence and patently a perverse and unreasonable view. In this connection the High Court was justified in observing that witness. Badley, P.W. 12 was examined only for proving identification of dead bodies of Sohan Lal and Kanahiya while witness Ajit Ram P.W. 18 was examined for proving the recovery of ballam and lathis. But during their cross examination they tried to support the accused and had gone out of their way in deposing that the accused were not present on the scene of offence at the relevant time. The evidence of witness Badley in his cross examination was clearly unreliable and was right rejected by the Trial Court. Consequently the evidence of these two witnesses could not have been relied upon by the Trial Court for exonerating the accused and in holding that the accused would not be present on the scene of offence on the date of incident. We have already seen earlier how the defence had failed to establish the theory of alibi still the Trial Court has accepted the theory of alibi as put forward on behalf of the defence and that is how benefit of doubt was extended to the appellants. The said reasoning of the Trial Court was clearly perverse, unreasonable and against the weight of evidence. Under these circumstances the High Court was perfectly justified in interfering in appeal against acquittal and in coming to its own conclusion by appreciating the evidence led by the prosecution. The second point for determination also, therefore, has to be held against the appellants by answering it in the affirmative.