GURU DUTT PATHAK versus STATE OF UTTAR PRADESH
[2021] 6 S.C.R. 573, Supreme Court of India, 2021
Outcome: Dismissed (Dismissed)
Segment: Facts
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GURU DUTT PATHAK
v.
STATE OF UTTAR PRADESH
(Criminal Appeal No. 502 of 2015)
MAY 06, 2021
[DR. DHANANJAYA Y CHANDRACHUD AND
M. R. SHAH, JJ.]
Penal Code, 1860: ss. 302/34 – Four accused – Acquittal by
Trial Court – During pendency of State’s appeal before High Court,
accused no. 1 to 3 died – Reversal of acquittal of fourth accused
by High Court – Appeal against conviction – Held: Prosecution
witnesses fully supported the case of prosecution – It was established
and proved by prosecution by leading evidence that the incident
had taken place on the road near Primary Pathshala – The dead
body was recovered from the road near the Pathshala and blood
stained clothes were also recovered from that place – Thus
prosecution proved the place of incident as stated in the FIR – PW-
4 was eye-witness – He was found to be trustworthy and reliable –
In view of clinching evidence of eyewitnesses, mere non-examination
of some of the witnesses/independent witnesses and/or in absence
of examination of any independent witnesses would not be fatal to
prosecution case – Appellant-accused no. 4 was named right from
the beginning in the FIR – He was attributed specific role – The
same was established and proved from the evidence of PW-4 – In
the facts and circumstances of the case, and on re-appreciation of
the evidence, High Court came to conclusion that findings recorded
by trial court while acquitting the accused were perverse and even
contrary to the evidence on record
and/or misreading of the evidence
– No reason to interfere with the order of High Court.
Dismissing the appeal, the Court
HELD: 1. Each and every ground on which trial court
acquitted the accused has been elaborately dealt with by the High
Court and on reappreciation of the entire evidence on record the
High Court specifically came to the conclusion that the findings
recorded by the trial Court were perverse and thereafter the
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High Court interfered with the judgment and order of acquittal
passed by the trial Court. The High Court rightly observed that
when there is a direct evidence in the form of eyewitnesses and
the eyewitnesses are trustworthy and reliable, absence of motive
is insignificant. In the present case, in the 313 statement itself,
the appellant- original accused no.4 also stated that there was an
enmity. Therefore, even according to the accused also, there was
an enmity. [Paras 8 and 9][592-D-F]
Manjit Singh v. State of Punjab (2019) 8 SCC 529 :
[2019] 11 SCR 554; Surinder Kumar v. State of Punjab
(2020) 2 SCC 563 : [2020] 1 SCR 307; Rizwan Khan
v. State of Chhattisgarh (2020) 9 SCC 627; State of
H.P. v. Pardeep Kumar (2018) 13 SCC 808 : [2018]
2 SCR 656 – relied on.
2.1 The prosecution witnesses fully supported the case of
the prosecution, more particularly PW2 & PW4 and they are found
to be trustworthy and reliable, non-examination of the
independent witnesses is not fatal to the case of the prosecution.
Nothing is on record that those two persons, as mentioned in the
FIR reached the spot were mentioned as witnesses in the
chargesheet. In any case, PW2 & PW4 fully supported the case
of the prosecution and therefore non-examination of the aforesaid
two persons shall not be fatal to the case of the prosecution. [Para
11][593-D-F]
Dashrath Singh v. State of U.P. (2004) 7 SCC 408 :
[ 2004] 3 Suppl. SCR 561; Takhaji Hiraji v.
Thakore
Kubersing Chamansing (2001) 6 SCC 145 – referred
to.
2.2 The investigating officer -PW7 in his examination-in-
chief specifically stated that when they tried to arrest the said
accused at 4:00 a.m. in the early morning near the bridge, the
said accused tried to run away; after scuffle he was arrested and
that during that scuffle and arrest, he sustained injuries. A
suggestion was put to him in the cross-examination that at the
time of arrest the accused ‘M’ did not receive any injury, however,
the same has been specifically denied that it is not true that he
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did not receive injury at the time of his arrest. Similar suggestions
were made to other witnesses and the same were denied.
Therefore, as such, it cannot be said that the prosecution failed
to explain the injury on the said accused. Even the aforesaid
aspect was considered in detail by the High Court and the said
statement was appreciated by the High Court on re-appreciating
the entire evidence on record, more particularly the medical
evidence and even the deposition of the doctors examined by
the prosecution as well as by the defence. [Para 12][593-G-H;
594-A-B]
3.1 The place of occurrence of the incident has been
established and proved by the prosecution as per the case of the
prosecution. The accused have failed to lead any evidence that
the incident had occurred near the door of the house of one of
the accused. Even the place of incident suggested by the accused,
if the Panchnama is concerned, it does not support the case of
the defence. The aforesaid aspect has been elaborately dealt with
by the High Court in the impugned judgment. It was established
and proved by the prosecution by leading the evidence that the
incident had taken place on the road near Primary Pathshala. The
dead body was recovered from the road near Primary Pathshala
and the blood stained Gamchha and tahmad were also recovered
from that place. On the point of place of recovery of the dead
body and recovery of the blood stained etc. is unchallenged.
Therefore, the prosecution has
proved the place of incident as
stated in the FIR. [Para 13][596-A-D]
3.2 Now so far as one another ground assigned by the trial
Court while acquitting the accused that there was no firearm injury
on the person of the deceased and therefore the medical evidence
is inconsistent with the ocular testimony is concerned, it is
required to be noted that it was never the case of the prosecution
that there was a firearm injury on the person of the deceased.
Even as per the evidence of the witnesses, when after sustaining
the injuries of lathi and spear, the deceased fell down on the earth
when other persons started coming and while leaving from that
place, one of the accused Ramraj Pathak fired his pistol towards
the deceased. It was never the case of the witnesses that bullet
hit the deceased. On the contrary, PW2 has specifically stated
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that the deceased has not sustained any firearm injury, although
Ramraj Pathak has fired at him. The depositions of PW2 & PW4
who can be said to be the star witnesses and they are the
eyewitnesses to the incident. PW-4 is found to be trustworthy
and reliable. His deposition is consistent with the allegations in
the FIR. There is no reason to doubt his trustworthiness.
Therefore, even the appellant can be and is rightly convicted
relying upon the deposition of PW4, who is an eyewitness to the
incident. The appellant – original accused no.4 was specifically
named right from the very beginning in the FIR. He has been
attributed the specific role. The same has been established and
proved from the evidence of PW4. No error has been committed
by the High Court in interfering with the judgment and order of
acquittal passed by the trial Court. [Paras 14, 15, 17][596-E-H;
597-C, H; 598-A]
Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCC
228 : [1978] 2 SCR  471; Babu v. State of Kerala (2010)
9 SCC 189 : [2010] 9 SCR 1039; Kuldeep Singh v.
Commissioner of Police (1999) 2 SCC 10 : [1998]
3 Suppl. SCR 594; Vijay Mohan Singh v. State of
Karnataka (2019) 5 SCC 436 : [2019] 6 SCR 994; Atley
v. State of Uttar Pradesh AIR 1955 SC 807; K.Gopal
Reddy v. State of Andhra Pradesh (1979) 1 SCC 355 :
[1979] 2  SCR 363 – referred to.
Case Law Reference
[1978] 2 SCR 471
referred to
Para 6.1
[2010] 9 SCR 1039
referred to
Para 7.2
[1998] 3
Suppl. SCR 594 
referred to
Para 7.2
[2019] 6 SCR 994
referred to
Para 7.3
AIR 1955 SC 807
referred to
Para 7.5
[1979] 2  SCR 363
referred to
Para 7.6
[2019] 11 SCR 554
relied on
Para 10.1
[2020] 1 SCR 307 
relied on
Para 10.2
(2020) 9 SCC 627
relied on
Para 10.3
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[2018] 2 SCR 656
relied on
Para 10.3
[2004] 3 Suppl. SCR 561
referred to
Para12
(2001) 6 SCC 145
referred to
Para 12.1
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 502 of 2015.
From the Judgment and Order dated 16.01.2014 of the High Court
of Judicature at Allahabad  in Appeal No.2895 of 1982.
Siddharth Dave, Sr. Adv., Ashutosh Kumar Sharma, Adv. for the
appellant.
Ardhendumauli Kumar Prasad, Vikas Bansal, Advs. for the
respondent.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 16.01.2014 passed by the High Court of Judicature at
Allahabad in Government Appeal No. 2895 of 1982, by which the High
Court has allowed the said appeal preferred by the State and has reversed
the judgment and order of acquittal passed by the learned trial Court
acquitting the accused for the offences punishable under Section 302 r/
w 34 of the IPC and consequently has convicted the appellant – original
accused no.4 for the aforesaid offences, the original accused no.4 has
preferred the present appeal.
2. That as per the case of the prosecution the deceased was the
Pradhan of the village for more than two decades. The accused were
having grudge against him. On 6.10.1981 at about 7:00 a.m., the deceased
was going, as usual, to attend the call of nature towards the bank of river
Yamuna situated near his village. When the deceased reached near Basic
School, Nagarwar, all the four
accused suddenly emerged out from the
Bajra field of Ram Sajiwan. Accused Murlidhar Pathak and Gurudutt
Pathak were armed with lathis, Dharmraj Pathak was armed with spear
and Ramraj Pathak was armed with pistol. The deceased was attacked
by the accused with spear and lathis. The deceased fell down on earth.
They crushed his head with lathis. On hue and cry, first informant
Satrughan Pathak, his brother Ramsukh Pathak, Lalmani Pathak and
Shiv Shankar, who were already there at a short distance, rushed towards
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the deceased whereupon accused Ramraj Pathak fired a shot from his
pistol towards the deceased and all the assailants ran away along with
their weapons. The deceased received his instantaneous death at the
spot.
2.1 Satrughan Pathak, son of the deceased, lodged an FIR against
all the accused persons for the offences punishable under Section 302 r/
w 34 IPC. The FIR was investigated by one Sukhram Sonkar, the
Investigating Officer. He recorded the statements of the witnesses. He
prepared the Panchnama at the spot. He arrested the accused Murlidhar
Pathak on 07.10.1981 at about 4:00 a.m. after a little chase and during
the course of his arrest police personnel inflicted injuries at his person
near bridge of river Fagawa.
2.2 Dr. Nisar Ahmad conducted the post-mortem. He noticed the
following ante-mortem injuries on the body of the deceased:
i)
Depressed fracture of skull with fracture of left parietal
bone. In fact all the bones were broken. Brain matter had
been liquefied.
ii)
Multiple abrasion on left pinna.
iii)
Incised wound over the scalp 5 inch above ear T.U. directed,
2 inch x 2 inch. Brain matter going out.
iv)
Lacerated wound above the occipital, 2 inch x 2 inch. Brain
matter going out.
v)
Incised wound over the left occiput, 2 inch x 1 inch.
vi)
Incised wound over lateral aspect of palm, 1 inch x 1 inch x
muscle deep.
vii)
Lacerated wound on the posterior aspect of skull, 1 inch x
1 inch x muscle deep.
viii)
Incised wound over the proximal of the occipital.
ix)
Incised wound over the left parietal bone, 1 inch x 1 inch x
brain cavity deep with brain matter going out.
x)
Incised wound over the parietal bone, 1 inch x 1 inch. Brain
matter was going out.
xi)
Incised wound over the frontal bone, 1 inch x 1 inch. Brain
matter going out.
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As per the post-mortem report, the cause of the death was due
to shock and haemorrhage as a result of the aforesaid injuries.
2.3 On completion of the investigation, the Investigating Officer
filed the chargesheet against Murlidhar Pathak and three absconded
accused. That after the remaining persons came to be arrested, as the
case was triable exclusively by the Court of Sessions, the learned Chief
Judicial Magistrate committed the case to the Court of Sessions. All the
accused were charged for the offences punishable under Section 302/
34 IPC for the murder of the deceased-Ram Aasare Pathak. All the
accused denied the charges and therefore they came to be tried for the
aforesaid offences.
2.4 To prove the case, the prosecution examined as many as eight
witnesses. PW2 and PW4 were the eyewitnesses and PW7 was the
Investigating Officer. At the end of the trial, the learned trial Court
acquitted all the accused persons mainly on the grounds that PW1 to
PW4 – eyewitnesses were related and interested witnesses; no
independent witness has been examined; PW2 and PW4, sons of the
deceased may be termed as chance witnesses; place of occurrence is
not proved by the prosecution and there was no occasion for the deceased
to reach at the alleged spot; absence of fire injuries at the person of the
deceased; and prosecution has not explained the injuries on the accused
Murlidhar Pathak.
3. Feeling aggrieved and dissatisfied with the order of acquittal
passed by the
learned trial Court, the State preferred appeal before the
High Court. During the pendency of the appeal, accused nos. 1 to 3
died/expired and therefore the appeal against the appellant herein –
original accused no.4 was proceeded further. That on re-appreciation of
the entire evidence on record, by the impugned judgment and order, the
High Court has allowed the appeal and has set aside the order of acquittal
passed by the learned trial Court and consequently has convicted the
appellant herein – original accused no.4 for the offences under Section
302/34 IPC and has sentenced him to undergo life imprisonment.
4. Feeling aggrieved and dissatisfied by the impugned judgment
and order passed by the High Court reversing the order of acquittal and
convicting the appellant – original accused no.4 for the offences under
Section 302/34 IPC, original accused no.4 has preferred the present
appeal.
GURU DUTT PATHAK v. STATE OF UTTAR PRADESH
[M. R. SHAH, J.]
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5. Learned Advocate appearing on behalf of the appellant has
made the following submissions:
i)
that the High Court has exceeded in its jurisdiction in
reversing the well-reasoned judgment and order of acquittal
passed by the learned trial Court and consequently
convicting the accused;
ii)
that the learned trial Court, as such, committed no error in
acquitting the accused;
iii)
that the motive has not been established and proved;
iv)
that all the prosecution witnesses – so called eyewitnesses
– PW1 to PW4 are all related and interested witnesses;
v)
that no independent witness has been examined;
vi)
that as rightly observed by the learned trial Court, PW2 &
PW4 are the chance witnesses;
vii)
that from the medical evidence there is no injury found from
the fired arm and therefore it disproves the case of the
prosecution;
viii)
that the prosecution has failed to explain the injury on one
of the accused – Murlidhar Pathak;
ix)
that the medical evidence does not support the case of the
prosecution’
x)
that the FIR was ante-dated’ and
xi)
that the prosecution has failed to prove the exact place of
the occurrence of the incident.
5.1 Learned counsel appearing on behalf of the appellant has
submitted that as per catena of decisions of this Court when two views
are possible and an order of acquittal passed by the learned trial Court is
based on appreciation of evidence on record, the High Court shall not
interfere with such
an order of acquittal. It is submitted that in the present
case the High Court has reversed the order of acquittal in an appeal
under Section 378 Cr.P.C. and has exercised the powers/jurisdiction
beyond the scope of Section 378 Cr.P.C.
5.2 Making the above submissions, it is prayed to allow the present
appeal and set aside the impugned judgment and order passed by the
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High Court and restore the well-reasoned judgment and order of acquittal
passed by the learned trial Court.
6. The present appeal is vehemently opposed by the learned
Standing Counsel appearing on behalf of the respondent – State of Uttar
Pradesh.
Learned counsel appearing on behalf of the State has vehemently
submitted that in the facts and circumstances of the case, the High Court
has not committed any error in reversing the judgment and order of
acquittal and consequently convicting the accused.
6.1 It is submitted that being the first appellate court against the
judgment and order of acquittal passed by the learned trial Court, the
High Court is justified in reappreciating the entire evidence on record
and coming to its conclusion. Reliance is placed on the decision of this
Court in the case of Umedbhai Jadavbhai v. State of Gujarat (1978)
1 SCC 228.
6.2 It is submitted that by the impugned judgment and order the
High Court has considered in detail the grounds on which the learned
trial Court acquitted the accused and having found that the grounds on
which the accused have been acquitted are not tenable at law and are
just contrary to the evidence on record and are perverse, the High Court
has rightly convicted the accused.
6.3 It is further submitted that in the present case the prosecution
has established and proved the actual place of incident/occurrence and
has explained the injuries on one of the accused – Murlidhar Pathak.
6.4 It is submitted
that even in the 313 statement, the appellant –
original accused no.4 has also stated about the enmity. It is submitted
that therefore even according to the appellant – original accused no.4,
there was an enmity between the deceased and the accused.
6.5 It is further submitted that one of the grounds on which the
learned trial Court acquitted the accused was that no independent witness
has been examined. It is submitted that when the witnesses who are
examined are found to be reliable and trustworthy, mere non-examination
of the independent witnesses shall not be fatal to the case of the
prosecution.
6.6 It is further submitted that one another reason given by the
learned trial Court which has been elaborately dealt with by the High
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[M. R. SHAH, J.]
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Court was that neither there was any firearm injury nor the firearm was
recovered. It is submitted that in the deposition of the eyewitnesses it
has come on record that as per the case of the prosecution there was a
fire shot but it was in air and no injury was sustained by the firearm.
6.7 It is submitted that in the present case the eyewitnesses PW2
& PW4 have fully supported the case of the prosecution and therefore
the High Court has rightly convicted the accused.
7. We have heard the learned counsel for the respective parties
at length. We have gone through and considered in detail the judgment
and order of acquittal passed by the learned trial Court as well as the
impugned judgment and order passed by the High Court reversing the
acquittal and convicting the accused, to satisfy ourselves whether in the
facts and circumstances of the case, the High Court is justified in reversing
the judgment and order of acquittal passed by the learned trial Court and
consequently convicting the accused.
7.1 We are conscious of the fact that this is a case of reversal of
acquittal by the High Court. Therefore, the first and foremost thing which
is required to be considered is, whether in the facts and circumstances
of the case, the High Court is justified in interfering with the order of
acquittal passed by the learned trial Court?
7.2 In the case of Babu v. State of Kerala (2010) 9 SCC 189,
this Court has reiterated the
principles to be followed in an appeal against
acquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed
and held as under:
“12. This Court time and again has laid down the guidelines for
the High Court to interfere with the judgment and order of acquittal
passed by the trial court. The appellate court should not ordinarily
set aside a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be the more
probable one. While dealing with a judgment of acquittal, the
appellate court has to consider the entire evidence on record, so
as to arrive at a finding as to whether the views of the trial court
were perverse or otherwise unsustainable. The appellate court is
entitled to consider whether in arriving at a finding of fact, the
trial court had failed to take into consideration admissible evidence
and/or had taken into consideration the evidence brought on record
contrary to law. Similarly, wrong placing of burden of proof may
also be a subject-matter of scrutiny by the appellate court. (Vide
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Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir
v. State of Bihar (1990) 4 SCC 17,Shailendra Pratap v. State
of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P
(2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC
731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.
Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu
v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State
of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010)
2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the
Privy Council observed as under: (IA p. 404)
“… the High Court should and will always give proper weight and
consideration to such matters as (1) the views of the trial Judge
as to the credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at his trial; (3)
the right of the accused to the benefit of any doubt; and (4) 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.”
14. The aforesaid principle of law has consistently been followed
by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1,
Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G.
Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu
Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.
State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of
M.P(2002) 4 SCC 85
and State of Goa v. Sanjay Thakran
(2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,
this Court reiterated the legal position as under: (SCC p. 432, para
42)
“(1) An appellate court has full power to review, reappreciate
and reconsider the evidence upon which the order of acquittal is
founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction or condition on exercise of such power and an appellate
court on the evidence before it may reach its own conclusion,
both on questions of fact and of law.
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[M. R. SHAH, J.]
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(3) Various expressions, such as, ‘substantial and compelling
reasons’, ‘good and sufficient grounds’, ‘very strong
circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc.
are not intended to curtail extensive powers of an appellate court
in an appeal against acquittal. Such phraseologies are more in the
nature of ‘flourishes of language’ to emphasise the reluctance of
an appellate court to interfere with acquittal than to curtail the
power of the court to review the evidence and to come to its own
conclusion.
(4) An appellate court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of innocence is available to him under
the fundamental principle of criminal jurisprudence that every
person shall be presumed to be innocent unless he is proved guilty
by a competent court of law. Secondly, the accused having secured
his acquittal, the presumption of his innocence is further reinforced,
reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court.”
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this
Court reiterated the said view, observing that the appellate court
in dealing with the cases in which the trial courts have acquitted
the accused, should bear in
mind that the trial court’s acquittal
bolsters the presumption that he is innocent. The appellate court
must give due weight and consideration to the decision of the trial
court as the trial court had the distinct advantage of watching the
demeanour of the witnesses, and was in a better position to
evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the
Court again examined the earlier judgments of this Court and laid
down that: (SCC p. 374, para 20)
“20. … an order of acquittal should not be lightly interfered with
even if the court believes that there is some evidence pointing out
the finger towards the accused.”
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court
gave certain illustrative circumstances in which the Court would
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be justified in interfering with a judgment of acquittal by the High
Court. The circumstances include: (SCC p. 286, para 28)
“(i) The High Court’s decision is based on totally erroneous view
of law by ignoring the settled legal position;
(ii) The High Court’s conclusions are contrary to evidence and
documents on record;
(iii) The entire approach of the High Court in dealing with the
evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court’s judgment is manifestly unjust and
unreasonable based on erroneous law and facts on the record of
the case;
(v) This Court must always give proper weight and consideration
to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a
case when both the Sessions Court and the High Court have
recorded an order of acquittal.”
A similar view has been reiterated by this Court in Dhanapal v.
State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect
that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of
acquittal. The appellate court should bear in mind the presumption
of innocence of the accused and further that the trial court’s
acquittal bolsters the presumption of his innocence. Interference
in a routine manner where the other view is possible should be
avoided, unless there are good reasons for
interference.”
(emphasis supplied)
7.2.1 When the findings of fact recorded by a court can be held to
be perverse has been dealt with and considered in paragraph 20 of the
aforesaid decision, which reads as under:
“20. The findings of fact recorded by a court can be held to be
perverse if the findings have been arrived at by ignoring or
excluding relevant material or by taking into consideration
irrelevant/inadmissible material. The finding may also be said to
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[M. R. SHAH, J.]
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be perverse if it is “against the weight of evidence”, or if the
finding so outrageously defies logic as to suffer from the vice of
irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)
4 SCC 635, Excise and Taxation Officer-cum-Assessing
Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni
Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya
Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State
(2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State
of A.P (2009) 10 SCC 636).”
(emphasis supplied)
7.2.2 It is further observed, after following the decision of this
Court in the case of Kuldeep Singh v. Commissioner of Police (1999)
2 SCC 10, that if a decision is arrived at on the basis of no evidence or
thoroughly unreliable evidence and no reasonable person would act upon
it, the order would be perverse. But if there is some evidence on record
which is acceptable and which could be relied upon, the conclusions
would not be treated as perverse and the findings would not be interfered
with.
7.3 In the decision of this Court in the case of Vijay Mohan
Singh v. State of Karnataka (2019) 5 SCC 436, this Court again had
an occasion to consider the scope of Section 378 Cr.P.C. and the
interference by the High Court in an appeal against acquittal. This Court
considered catena of decisions of this Court right from 1952 onwards.
In paragraph 31, it is observed and held as under:
“31. An identical question
came to be considered before this Court
in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before
this Court, the High Court interfered with the order of acquittal
passed by the learned trial court on re-appreciation of the entire
evidence on record. However, the High Court, while reversing
the acquittal, did not consider the reasons given by the learned
trial court while acquitting the accused. Confirming the judgment
of the High Court, this Court observed and held in para 10 as
under: (SCC p. 233)
“10. Once the appeal was rightly entertained against the order
of acquittal, the High Court was entitled to reappreciate the
entire evidence independently and come to its own conclusion.
Ordinarily, the High Court would give due importance to the
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opinion of the Sessions Judge if the same were arrived at after
proper appreciation of the evidence. This rule will not be
applicable in the present case where the Sessions Judge has
made an absolutely wrong assumption of a very material and
clinching aspect in the peculiar circumstances of the case.”
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the
High Court reversed the order of acquittal passed by the learned
trial court and held the accused guilty on re-appreciation of the
entire evidence on record, however, the High Court did not record
its conclusion on the question whether the approach of the trial
court in dealing with the evidence was patently illegal or the
conclusions arrived at by it were wholly untenable. Confirming
the order passed by the High Court convicting the accused on
reversal of the acquittal passed by the learned trial court, after
being satisfied that the order of acquittal passed by the learned
trial court was perverse and suffered from infirmities, this Court
declined to interfere with the order of conviction passed by the
High Court. While confirming the order of conviction passed by
the High Court, this Court observed in para 8 as under: (SCC p.
416)
“8. We have perused the judgment under appeal to ascertain
whether the High Court has conformed to the aforementioned
principles. We find that the High Court has not strictly proceeded
in the manner laid down by this Court in Ramesh Babulal Doshi
v. State of Gujarat
(1996) 9 SCC 225 viz. first recording its
conclusion on the question whether the approach of the trial
court in dealing with the evidence was patently illegal or the
conclusions arrived at by it were wholly untenable, which alone
will justify interference in an order of acquittal though the High
Court has rendered a well-considered judgment duly meeting
all the contentions raised before it. But then will this non-
compliance per se justify setting aside the judgment under
appeal? We think, not. In our view, in such a case, the approach
of the court which is considering the validity of the judgment
of an appellate court which has reversed the order of acquittal
passed by the trial court, should be to satisfy itself if the
approach of the trial court in dealing with the evidence was
patently illegal or conclusions arrived at by it are demonstrably
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unsustainable and whether the judgment of the appellate court
is free from those infirmities; if so to hold that the trial court
judgment warranted interference. In such a case, there is
obviously no reason why the appellate court’s judgment should
be disturbed. But if on the other hand the court comes to the
conclusion that the judgment of the trial court does not suffer
from any infirmity, it cannot but be held that the interference
by the appellate court in the order of acquittal was not justified;
then in such a case the judgment of the appellate court has to
be set aside as of the two reasonable views, the one in support
of the acquittal alone has to stand. Having regard to the above
discussion, we shall proceed to examine the judgment of the
trial court in this case.”
31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999)
3 SCC 309, after observing that though there is some substance
in the grievance of the learned counsel appearing on behalf of the
accused that the High Court has not adverted to all the reasons
given by the trial Judge for according an order of acquittal, this
Court refused to set aside the order of conviction passed by the
High Court after having found that the approach of the Sessions
Judge in recording the order of acquittal was not proper and the
conclusion arrived at by the learned Sessions Judge on several
aspects was unsustainable. This Court further observed that as
the Sessions
Judge was not justified in discarding the relevant/
material evidence while acquitting the accused, the High Court,
therefore, was fully entitled to reappreciate the evidence and
record its own conclusion. This Court scrutinised the evidence of
the eyewitnesses and opined that reasons adduced by the trial
court for discarding the testimony of the eyewitnesses were not
at all sound. This Court also observed that as the evaluation of the
evidence made by the trial court was manifestly erroneous and
therefore it was the duty of the High Court to interfere with an
order of acquittal passed by the learned Sessions Judge.
31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, this
Court observed and held as under: (AIR pp. 809-10)
“5. It has been argued by the learned counsel for the appellant
that the judgment of the trial court being one of acquittal, the High
Court should not have set it aside on mere appreciation of the
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evidence led on behalf of the prosecution unless it came to the
conclusion that the judgment of the trial Judge was perverse. In
our opinion, it is not correct to say that unless the appellate court
in an appeal under Section 417 CrPC came to the conclusion that
the judgment of acquittal under appeal was perverse it could not
set aside that order.
It has been laid down by this Court that it is open to the High
Court on an appeal against an order of acquittal to review the
entire evidence and to come to its own conclusion, of course,
keeping in view the well-established rule that the presumption of
innocence of the accused is not weakened but strengthened by
the judgment of acquittal passed by the trial court which had the
advantage of observing the demeanour of witnesses whose
evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers
of appreciation of evidence in an appeal against an order of
acquittal as in the case of an appeal against an order of conviction,
subject to the riders that the presumption of innocence with which
the accused person starts in the trial court continues even up to
the appellate stage and that the appellate court should attach due
weight to the opinion of the trial court which recorded the order
of acquittal.
If the appellate court reviews the evidence, keeping those
principles in mind, and comes to a contrary conclusion, the judgment
cannot be said to have been vitiated.
(See in this connection the
very cases cited at the Bar, namely, Surajpal Singh v. State AIR
1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122)
In our opinion, there is no substance in the contention raised on
behalf of the appellant that the High Court was not justified in
reviewing the entire evidence and coming to its own conclusions.
31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355,
this Court has observed that where the trial court allows itself to
be beset with fanciful doubts, rejects creditworthy evidence for
slender reasons and takes a view of the evidence which is but
barely possible, it is the obvious duty of the High Court to interfere
in the interest of justice, lest the administration of justice be brought
to ridicule.”
(emphasis supplied)
GURU DUTT PATHAK v. STATE OF UTTAR PRADESH
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7.4 In the case of Umedbhai Jadavbhai (supra), in paragraph
10, it is observed and held as under:
“10. Once the appeal was rightly entertained against the order of
acquittal, the High Court was entitled to re-appreciate the entire
evidence independently and come to its own conclusion. Ordinarily,
the High Court would give due importance to the opinion of the
Sessions Judge if the same were arrived at after proper
appreciation of the evidence. This rule will not be applicable in
the present case where the Sessions Judge has made an absolutely
wrong assumption of a very material and clinching aspect in the
peculiar circumstances of the case.”
7.5 In the case of Atley v. State of Uttar Pradesh AIR 1955 SC
807, this Court has observed and held as under:
“5. It has been argued by the learned counsel for the appellant
that the judgment of the trial court being one of acquittal, the High
Court should not have set it aside on mere appreciation of the
evidence led on behalf of the prosecution unless it came to the
conclusion that the judgment of the trial Judge was perverse. In
Our opinion, it is not correct to say that unless the appellate court
in an appeal under Section 417, Criminal P. C. came to the
conclusion that the judgment of acquittal under appeal was perverse
it could not set aside that order.
It has been laid down by this Court that it is open to the High
Court on an appeal against an order of acquittal to review
the
entire evidence and to come to its own conclusion, of course,
keeping in view the well established rule that the presumption of
innocence of the accused is not weakened but strengthened by
the judgment of acquittal passed by the trial court which had the
advantage of observing the demeanour of witnesses whose
evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers
of appreciation of evidence in an appeal against an order of
acquittal as in the case of an appeal against an order of conviction,
subject to the riders that the presumption of innocence with which
the accused person starts in the trial court continues even up to
the appellate stage and that the appellate court should attach due
weight to the opinion of the trial court which recorded the order
of acquittal.
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If the appellate court reviews the evidence, keeping those
principles in mind, and comes to a contrary conclusion, the judgment
cannot be said to have been vitiated. (See in this connection the
very cases cited at the Bar, namely, Surajpal Singh v. The State
1952 CriLJ331; Wilayat Khan v. State of Uttar Pradesh, AIR
1953 SC 122. In our opinion, there is no substance in the contention
raised on behalf of the appellant that the High Court was not
justified in reviewing the entire evidence and coming to its own
conclusions.”
7.6 In the case of K.Gopal Reddy v. State of Andhra Pradesh
(1979) 1 SCC 355, this Court has observed that where the trial Court
allows itself to be beset with fanciful doubts, rejects creditworthy evidence
for slender reasons and takes a view of the evidence which is but barely
possible, it is the obvious duty of the High Court to interfere in the interest
of justice, lest the administration of justice be brought to ridicule.
8. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand, it is to be considered whether
in the facts and circumstances of the case, the High Court is justified in
interfering with the order of acquittal passed by the learned trial Court?
8.1 The grounds on which the learned trial Court acquitted the
accused are narrated by the High Court in the impugned judgment, which
are as under:
1.
The motive assigned to respondents to commit the murder
of Ram Aasare Pathak may be
the reason of their false
implication in this case;
2.
Badri Prasad (P.W.1) and Lal Mani (P.W.3) are the chance
witnesses whereas Shatrughan Prasad Pathak (P.W.2), Lal
Mani (P.W.3) and Ram Ganesh Pathak (P.W.4) the
witnesses of fact are related and interested witnesses
inasmuch as Shatrughan Prasad Pathak (P.W.2) and Ram
Ganesh Pathak (P.W.4) are the sons of the deceased
wheareas Lal Mani (P.W.3) is relatives which is established
on record;
3.
No independent public witness has been examined.
According to him, even P.W.2 and P.W.4 sons of the
deceased may also be termed as chance witnesses;
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4.
Place of occurrence is not proved by the prosecution and
there was no occasion for the deceased to reach at the
alleged spot if at all he was going to attend the call of nature;
5.
Absence of the firearm injury at the person of the deceased
belied the presence of prosecution witnesses;
6.
F.I.R. is antedated;
7.
The prosecution has not explained the injury of accused
Murlidhar Pathak;
8.
Although respondents have not adduced any evidence in
their defence to prove the fact that deceased sustained
injuries at the door of Murlidhar Pathak or the injuries at his
person was caused by mob or public, or Murlidhar Pathak
received injuries at his own door at the instance of deceased,
yet in any case, the possibility of exercise of right of private
defence by respondents cannot be said to be improbable.
Each and every aforesaid ground has been elaborately dealt with
by the High Court and on reappreciation of the entire evidence on record
the High Court has specifically come to the conclusion that the findings
recorded by the learned trial Court are perverse and thereafter the High
Court has interfered with the judgment and order of acquittal passed by
the learned trial Court.
9. So far as the submission on behalf of the accused that no motive
has been established and proved is concerned, the High Court has
elaborately dealt with the same. The High Court has rightly observed
that when there is a direct evidence in the form of
eyewitnesses and the
eyewitnesses are trustworthy and reliable, absence of motive is
insignificant. In the present case, in the 313 statement itself, the appellant
– original accused no.4 has also stated that there was an enmity.
Therefore, even according to the accused also, there was an enmity.
10. One another ground given by the learned trial Court while
acquitting the accused was that no independent witness has been
examined. The High Court has rightly observed that where there are
clinching evidence of eyewitnesses, mere non-examination of some of
the witnesses/independent witnesses and/or in absence of examination
of any independent witnesses would not be fatal to the case of the
prosecution.
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10.1 In the case of Manjit Singh v. State of Punjab (2019) 8
SCC 529, it is observed and held by this Court that reliable evidence of
injured eyewitnesses cannot be discarded merely for reason that no
independent witness was examined.
10.2 In the recent decision in the case of Surinder Kumar v.
State of Punjab (2020) 2 SCC 563, it is observed and held by this Court
that merely because prosecution did not examine any independent witness,
would not necessarily lead to conclusion that accused was falsely
implicated.
10.3 In the case of Rizwan Khan v. State of Chhattisgarh (2020)
9 SCC 627, after referring to the decision of this Court in the case of
State of H.P. v. Pardeep Kumar (2018) 13 SCC 808, it is observed
and held by this Court that the examination of independent witnesses is
not an indispensable requirement and such non-examination is not
necessarily fatal to the prosecution case.
11. Applying the law laid down by this Court in the aforesaid
decisions to the facts of the case on hand and when, as observed by the
High Court, the prosecution witnesses have fully supported the case of
the prosecution, more particularly PW2 & PW4 and they are found to
be trustworthy and reliable, non-examination of the independent witnesses
is not fatal to the case of the prosecution. Nothing is on record that those
two persons, namely, Shiv Shankar and Bhagwati Prasad as mentioned
in the FIR reached the spot were mentioned as witnesses in the
chargesheet. In any case,
PW2 & PW4 have fully supported the case
of the prosecution and therefore non-examination of the aforesaid two
persons shall not be fatal to the case of the prosecution.
12. Now so far as the submission on behalf of the accused that
injury on one of the accused – Murlidhar Pathak has not been explained
by the prosecution and reliance placed on the decision of this Court in
the case of Dashrath Singh v. State of U.P. (2004) 7 SCC 408 is
concerned, at the outset, it is required to be noted that the investigating
officer -PW7 in his examination-in-chief in paragraph 6 has specifically
stated that when they tried to arrest the said accused at 4:00 a.m. in the
early morning near the bridge, the said accused tried to run away; after
scuffle he was arrested and that during that scuffle and arrest, he
sustained injuries. A suggestion was put to him in the cross-examination
that at the time of arrest the accused Murlidhar Pathak did not receive
any injury, however, the same has been specifically denied that it is not
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true that he did not receive injury at the time of his arrest. Similar
suggestions were made to other witnesses and the same were denied.
Therefore, as such, it cannot be said that the prosecution has failed to
explain the injury on the said accused. Even the aforesaid aspect has
been considered in detail by the High Court and the said statement has
been appreciated by the High Court on re-appreciating the entire evidence
on record, more particularly the medical evidence and even the deposition
of the doctors examined by the prosecution as well as by the defence.
12.1. Now so far as the reliance placed upon the decision of this
Court in the case of Dashrath Singh (supra) is concerned, the
observations made by this Court in the aforesaid decision are required to
be considered, considering the facts and circumstances of the case. In
the said case, defence of the accused was that there was a free fight
between both the parties and therefore the question arose with respect
to the right of the private defence and/or who was the aggressor. Even
otherwise in the said decision also, this Court referred to paragraph 17
of the decision of this Court in the case of Takhaji Hiraji v. Thakore
Kubersing Chamansing (2001) 6 SCC 145 in paragraph 18, which
reads as under:
“17. … the view taken consistently is that it cannot be held as a
matter of law or invariably a rule that whenever the accused
sustained an injury in the same
occurrence, the prosecution is
obliged to explain the injury and on the failure of the prosecution
to do so the prosecution case should be disbelieved. Before non-
explanation of the injuries on the persons of the accused persons
by the prosecution witnesses may affect the prosecution case,
the court has to be satisfied of the existence of two conditions: (i)
that the injury on the person of the accused was of a serious
nature; and (ii) that such injuries must have been caused at the
time of the occurrence in question. Non-explanation of injuries
assumes greater significance when the evidence consists of
interested or partisan witnesses or where the defence gives a
version which competes in probability with that of the prosecution.
Where the evidence is clear, cogent and creditworthy and where
the court can distinguish the truth from falsehood the mere fact
that the injuries on the side of the accused persons are not
explained by the prosecution cannot by itself be a sole basis to
reject the testimony of the prosecution witnesses and consequently
the whole of the prosecution case.
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18. The High Court was therefore not right in overthrowing the
entire prosecution case for non-explanation of the injuries sustained
by the accused persons.”
12.2 Thereafter, in paragraph 19, it is observed and held as under:
“19. The injuries of serious nature received by the accused in the
course of the same occurrence would indicate that there was a
fight between both the parties. In such a situation, the question as
to the genesis of the fight, that is to say, the events leading to the
fight and which party initiated the first attack assumes great
importance in reaching the ultimate decision. It is here that the
need to explain the injuries of serious nature received by the
accused in the course of same occurrence arises. When
explanation is given, the correctness of the explanation is liable to
be tested. If there is an omission to explain, it may lead to the
inference that the prosecution has suppressed some of the relevant
details concerning the incident. The Court has then to consider
whether such omission casts a reasonable doubt on the entire
prosecution story or it will have any effect on the other reliable
evidence available having bearing on the origin of the incident.
Ultimately, the factum of non-explanation of injuries is one
circumstance which has to be kept in view while appreciating the
evidence of prosecution witnesses. In case the prosecution version
is sought to be proved by partisan or interested witnesses, the
non-explanation of
serious injuries may prima facie make a dent
on the credibility of their evidence. So also where the defence
version accords with probabilities to such an extent that it is difficult
to predicate which version is true, then, the factum of non-
explanation of the injuries assumes greater importance. Much
depends on the quality of the evidence adduced by the prosecution
and it is from that angle, the weight to be attached to the aspect of
non-explanation of the injuries should be considered. The decisions
above-cited would make it clear that there cannot be a mechanical
or isolated approach in examining the question whether the
prosecution case is vitiated by reason of non-explanation of injuries.
In other words, the non-explanation of injuries of the accused is
one of the factors that could be taken into account in evaluating
the prosecution evidence and the intrinsic worth of the defence
version.”
GURU DUTT PATHAK v. STATE OF UTTAR PRADESH
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13. At this stage, it is required to be noted that in the present case
even considering the defence on behalf of the accused when the deceased
came near the door of the house of the one of the accused Murlidhar
Pathak, he was using abusive language and there were a quarrel and the
other village people might have caused injuries on the deceased.
Therefore, the incident is not disputed by the accused. The place of
occurrence of the incident has been established and proved by the
prosecution as per the case of the prosecution. The accused have failed
to lead any evidence that the incident had occurred near the door of the
house of one of the accused. Even the place of incident suggested by
the accused, if the Panchama is concerned, it does not support the case
of the defence. The aforesaid aspect has been elaborately dealt with by
the High Court in the impugned judgment and order. It has been established
and proved by the prosecution by leading the evidence that the incident
had taken place on the road near Primary Pathshala. The dead body
was recovered from the road near Primary Pathshala and the blood
stained Gamchha and tahmad were also recovered from that place. On
the point of place of recovery of the dead body and recovery of the
blood stained etc. is unchallenged. Therefore, the prosecution has proved
the place of incident as stated in the FIR.
14. Now so far as one another ground assigned by the learned
trial
Court while acquitting the accused that there was no firearm injury
on the person of the deceased and therefore the medical evidence is
inconsistent with the ocular testimony is concerned, it is required to be
noted that it was never the case of the prosecution that there was a
firearm injury on the person of the deceased. Even as per the evidence
of the witnesses, when after sustaining the injuries of lathi and spear, the
deceased fell down on the earth when other persons started coming and
while leaving from that place, one of the accused Ramraj Pathak fired
his pistol towards the deceased. It was never the case of the witnesses
that bullet hit the deceased. On the contrary, Shatrughan Prasad Pathak,
PW2 has specifically stated that the deceased has not sustained any
firearm injury, although Ramraj Pathak has fired at him.
15. We have carefully gone through the depositions of PW2 &
PW4 who can be said to be the star witnesses and they are the
eyewitnesses to the incident. From the deposition of PW2 (Hindi version,
para 9), learned counsel appearing on behalf of the appellant has
vehemently submitted that the said witness has specifically admitted
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that at the night of the incident, he was at 291, Malviya Nagar and after
receiving the information he reached at the spot. However, there is an
overwriting in para 9 and the words “not true” have been struck off by
pen and what is overwriting is “it is true”. Who made this overwriting is
difficult to say at this stage? Even the aforesaid was not even pointed
out and/or submitted before the learned trial Court or even before the
High Court. However, if we read the entire para 9 as a whole, it is very
difficult to accept that he admitted that he was not present in the village
in the morning and therefore his presence can be doubted. Be that as it
may, even if for the time being evidence of PW2 is not considered and/
or excluded, there is an overwhelming evidence in support of the
prosecution in the form of PW4. His presence is not doubted. He is
found to be trustworthy and reliable. His deposition is consistent with
the allegations in the FIR. There is no reason to doubt his trustworthiness.
Therefore, even the appellant can be and is rightly convicted relying
upon the deposition of PW4, who is an eyewitness to the incident.
16. Now let us consider the case and/or defence on behalf of the
appellant – original accused no.4. It was the case on behalf of the accused
that the incident occurred at the door of the house of the accused Murlidhar
Pathak and that Murlidhar Pathak, another accused, was being hurdled
abuses and assaulted by the deceased and the mob
inflicted injuries on
the person of the deceased. Except the above statement, the same has
not been established and proved by the defence by leading cogent
evidence, more particularly when the accused have examined three
defence witnesses. Nobody from the mob has been examined by them.
Even in his 313 statement, the only defence of the appellant -accused
no.4 was that he has been falsely implicated in the case due to enmity
and that he was not there. He has not led any evidence to prove that he
was elsewhere.
17. Considering the aforesaid facts and circumstances of the case
and on re-appreciation of the evidence, when the High Court has come
to the conclusion that the findings recorded by the learned trial Court
while acquitting the accused were perverse and even contrary to the
evidence on record and/or misreading of the evidence, the High Court
has rightly interfered with the judgment and order of acquittal passed by
the learned trial Court and has rightly convicted the accused. In the
present case, the appellant – original accused no.4 was specifically named
right from the very beginning in the FIR. He has been attributed the
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specific role. The same has been established and proved from the evidence
of PW4 (even if the deposition of PW2 is for the time being ignored).
No error has been committed by the High Court in interfering with the
judgment and order of acquittal passed by the learned trial Court.
18. In view of the above and for the reasons stated above, we see
no reason to interfere with the impugned judgment and order passed by
the High Court reversing the acquittal and convicting the accused. We
are in complete agreement with the view taken by the High Court. The
present appeal is accordingly dismissed.
19. As the appellant – Guru Dutt Pathak, original accused no.4
was granted interim bail up to 30.04.2021 and thereafter the same has
not been extended by this Court and the present appeal is now dismissed,
if the accused has not surrendered so far, he shall surrender himself
forthwith to serve out the sentence.
Devika Gujral
Appeal dismissed.