http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 7

PETITIONER:

MOHD. ASLAM ALIAS KUYIAN

Vs.

RESPONDENT:

STATE OF U.P.

DATE OF JUDGMENT18/03/1993

BENCH:

RAY, G.N. (J)

BENCH:

RAY, G.N. (J)

REDDY, K. JAYACHANDRA (J)

CITATION:

1993 SCR (2) 444 1993 SCC (3) 10

JT 1993 (4) 175 1993 SCALE (2)69

ACT:

Code of Criminal Procedure, 1973 : Section 378-Appeal

against acquittal-Interference by Appellate Court when.

Penal Code, 1860 : Section 302-Conviction under, by High

Court Appreciation of evidence by Supreme Court-High Court's

finding whether justified-Evidenices of eye-witnesses-Value

of.

HEADNOTE:

The prosecution case was that there was long standing enmity

between appellant's father and one Khan on one side and the

complainant on the other, which rose out of rival claim in

placing 'sawai' on the Akhara of Tajias. A Civil litigation

was pending between the parties over the dispute. Criminal

proceedings under section 107 read with section 117 of the

Code of Criminal Procedure were also pending between them.

The nephew and son-in-law of the complainant was doing

pairvi of the cases on behalf of the complainant and because

of that the father of the appellant and one Khan became

inimical to the son-in-law of the complainant.

At about 6.00 P.M. on the date of the occurrence namely

25.12.1975, the son-in-law of the complainant was sitting on

a wooden bench in front of a hair cutting shop of his

village. One Umar and P.W.1 were also sitting with him and

all the three were talking. P.Ws. 2 and 3 and the

complainant were standing near a Gumti, at a short distance

and were talking.

At the time, the appellant armed with a double barrel gun

came there. He challenged the complainants son-in-law and

threatened to kill anyone who would come forward. He fired

two shots which hit the complainant's son-in-law add one

Umar. Both of them fell down. Complainant's son-in-law

445

died on the spot. P.W. 10 took Umar to Hospital.

The Complainant went to his home and got a report of the

occurrence written by P.W.4 and taking the report to the

Police Station, about 4 miles away, he lodged the F.I.R at

7.15 P.M. Investigation of the case was immediately

commenced. Umar died on 4.1.1976, prior to his death on

1.1.1976, the Police had interrogated the deceased.

The case of accused appellant was that he was falsely

implicated on account of enmity and party faction. He

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 7

denied all the allegations of the prosecution.

The Sessions Court acquitted the accused-appellant, as it

did not rind the prosecution case and the evidence

acceptable.

Allowing the State's appeal against acquittal, the High

Court convicted the appellant under section 302 I.P.C. and

sentenced him to imprisonment for life.

In the appeal before this Court, the accused contended that

the High Court did not appreciate the salutory principles

governing the judgment of acquittal; that the Sessions Judge

had taken pains in analysing in detail. the evidences

adduced in the case and gave reasonings for each of the

finding as to why the prosecution case could not be accepted

and what were the intrinsic deficiency in the evidences

adduced in the case in support of the prosecution; that the

law was well settled that in a case of acquittal, the

appellate Court should not interfere with the judgment of

acquittal if such judgment was based on consideration of the

evidences adduced in the case and there was no perversity in

coming to the finding for passing the judgment of acquittal

and in such a case of acquittal, the High Court in exercise

of its appellate power should not endeavour to appreciate

the evidence on its own in order to come to different

finding Unlike in an appeal arising from the judgment of

conviction: that it has been established convincingly that

there was party faction between the two groups over a

dispute to place Sawai on Tajias and both civil and criminal

proceedings were instituted between the two groups: that the

eye-witnesses were in the faction of the complainant and

they were partition witnesses; that the Sessions Judge,

therefore, after nothing the various discrepancies in the

prosecution case, was not inclined to place reliance on the

evidences adduced by the alleged eye-witnesses and acquitted

the accused/appellant;

446

and that such order of acquittal, in the facts of the case

and the reasons indicated by the Sessions Judge, was not

required to be interfered with in appeal by the High Court.

Dismissing the appeal, this Court,

HELD: 1. In an appeal arising from an order of

acquittal, the appellate Court is not precluded from

appreciating the evidences on its own if the reasons given

by the learned trial Judge in passing the order of

acquittal, do not stand scrutiny and are against the weight

of the evidences adduced in the trial. The appellate Court,

will be quite justified in setting aside the order of

acquittal if it appears to the court of appeal that improper

consideration of the materials and evidences on record was

made and the reasonings of the trial Judge are wholly

unjustified. It is only necessary that the court of appeal

should weigh the reasonings of the learned trial Judge with

care and caution in the light of the evidences adduced in

the case by giving cogent reasons as to why such findings

are unreasonable and against the evidence. [451B-C]

2.01. In the instant case, the High Court has taken care

in analysing each and every finding of the learned Sessions

Judge in the light of the evidences adduced in the case and

has given cogent reasons as to why such findings were

unreasonable and not acceptable. It is an admitted position

that two persons suffered gun shot injuries and one of the

enjured persons died on the spot and the other was removed

to hospital. He got serious injuries and later on sccummbed

to such injuries. The mere fact that there was enmity and

bitterness between the two groups, by itself, does not

establish that the eye-witnesses falsely implicated the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 7

accused/appellant. [451D-E]

2.02. There are no intrinsic discrepancies in the

evidences of the eye-witnesses. Even if it is assumed that

such eye-witnesses belong to the group of the complainant,

their evidences are not liable to be discarded on that score

if such evidences otherwise inspire confidence and get cor-

roborated by other evidences and from the nature of

injuries, sustained by the deceased persons. [452E]

2.03. All the findings made by the Sessions Judge were

considered in detail by the High Court and the findings of

the learned Sessions judge were not accepted by the High

Court by indicating that such findings were

447

against the weight of the evidences and the same were wholly

unreasonable. In the circumstances, there is no reason to

take a contrary view in this appeal. [452H]

JUDGMENT:

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 554 of

1984.

From the Judgment and Order dated 27.9.1984 of the Allahabad

High Court in Government Appeal No. 1634 of 1977

M.R. Sharma, Ms. Anjana Sharma and R.D. Upadhayaya for the

Appellant.

Arvind K. Nigam, Ms. Kamini Jaiswal and A.S. Pundir for the

Respondent.

The Judgment of the Court was delivered by

G.N. RAY, J. This appeal is directed against the Judgment

dated September 27, 1984 passed by the Division Bench of the

Allahabad High Court setting aside the judgment dated April

30, 1977 passed by the learned Additional Sessions Judge,

Second Court, Kanpur (Dehat). By the impugned Judgment, the

Division Bench of the Allahabad High Court allowed the

appeal preferred by the State of Uttar Pradesh against the

judgment of acquittal. in Sessions Trial No. 235 of 1976 and

convicted the accused/appellant Mohd. Aslam under Section

302 I.P.C. and sentenced him to imprisonment for life.

The prosecution story in short is that there is long

standing enmity between Abdul Salem and Abdul Hamid Kham

Pradhan on one side and the complainant Abdul Hamid on the

other. Such enmity arose out of rival claim in

placing'sawai'on the Akbara of Tajias at the time of

Moharram. Sawai is a kind of flag which is put on Tajias at

the time of Moharram. Over such dispute a civil litigation

was going on between the said parties and there were also

criminal proceedings under Section 107 read with Section 117

of the Code of Criminal Procedure between the said parties.

Shamim Raza was nephew and son-in-law of Abdul Hamid, the

complainant and the said Shamim Raza was doing pairvi of the

said cases on behalf of Abdul Hamid. For the aforesaid

reasons, Abdul Salem and Abdul Hamid Khan Pradhan, became

inimical towards Shamim Raza and Abdul Hamid. Mohd. Aslam,

the accused/appellant is the son of Abdul Salem. Both the

parties were residents of village Bara,

448

within Police Station Akbarpur in the District of Kanpur.

On December 25, 1975 at about 6.00 P.M. Shamim Raza was

sitting on a wooden bench in front of a hair cutting shop of

Iiyas in village Raza. Mohd. Umar and Abdul Khaliq (P.W.1)

were also sitting with him and the said three persons were

talking. The Gumti of one Mohd. Laiq was at a short

distance towards the east of that place. Bhurey (P.W.2),

Qamruddin (P.W.3) and Abdul Hamid were standing near the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 7

said Gumit and had also been talking. There was light

coming from electric bulbs at that place. At that time, the

accused/appellant, Mohd. Aslam came there armed with a

double barrel gun. He challenged Shamim Raza and threatened

to kill anyone who would come forward. Thereafter, he fired

two shots. By said shots, Shamim Raza and Mohd. Umar

sustained gun-shot injuries and both of them fell down.

Shamim Raza died on the spot and the condition of Mohd.

Umar also became serious. Such occurrence was seen by Mohd.

Umar, Abdul Hamid, Bhurey and Qamruddin. Peer Mohammed

(P.W.10) took Mohd. Umar to Lala Lajpatrai Hospital at

Kanpur for treatment and at 7.50 PM. Dr.R.C. Asthana

(P.W.8) examined Mohd. Umar. Abdul Hamid went to his

house and got a report of the occurrence written by Mohd.

Raizwan (P.W.4) and took the said report to Akbarpur Police

Station which was about 4 miles away and lodged the F.I.R.

at 7.15 P.M. Station Officer incharge of the Akbarpur Police

Station, Mr. Jagdamba Prasad Misra, took up the

investigation of the case and he interrogated Abdul Hamid at

the Police Station and thereafter reached the scene of

occurrence at about 7.55 P.M. He found the dead body of

Shamim Raza lying at the scene of occurrence and he prepared

inquest report and other connected papers. He also

interrogated Bhurey, Qamruddin and Abdul Khaliq who were the

eye-witnesses, He, also prepared the site plan and found

blood on the wooden bench and also on the ground and

collected portion of the blood stained wooden bench and

blood stained bricks. The injured Mohd. Umar was

interrogated in the hospital on January, 1976. The post

mortem examination on the body of Shamim Raza was performed

by Dr. Prakash (P.W.6). Mohd. Umar died in the hospital on

January 4, 1976 and his post mortem examination was

performed by Dr. B.D. Misra at Kanpur on January 5,1976.

The accused/appellant Mohd. Aslam- denied the prosecution

allegations against him and alleged that he was falsely

implicated on account of enmity and party faction. He also

denied that he had been absconding from the village and he

examined two witnesses in defence. The learned Additional

Sessions Judge did not find the prosecution case and the

evidences acceptable. Accordingly, he acquitted the

accused/appellant. The State

449

thereafter preferred an appeal before the Allahabad High

Court and as aforesaid, the Allahabad High Court allowed the

said appeal, set aside the judgment of acquittal passed by

the learned Sessions Judge and convicted the

accused/appellant under Section 302 I.P.C. and sentenced him

to suffer rigorous imprisonment for life.

Learned counsel appearing for the accused/appellant has

strenuously contended that the High Court did not appreciate

the salutory principles governing the judgment of acquittal.

He has contended that the learned Sessions Judge had taken

pains in analysing in detail the evidences adduced in the

case and gave reasonings for each of the findings as to why

the prosecution case could not be accepted and what were the

intrinsic deficiency in the evidences adduced in the case in

support of the prosecution. The learned counsel has

contended that the law is well settled that in a case of

acquittal, the appellate Court should not interfere with the

judgment of acquittal if such judgment is based on

consideration of the evidences adduced in the case and there

is no perversity in coming to the finding for passing the

judgment of acquittal. In such a case of acquittal, the

High Court in exercise of its appellate power should not

endeavour to appreciate the evidence on its own in order to

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 7

come to different finding unlike in an appeal arising from

the judgment of conviction. The learned counsel has

contended that it has been established convincingly that

there was party faction between the two groups over a

dispute to place Sawai on Tajias and both civil and criminal

proceedings were instituted between the two groups.

The learned counsel has contended that Abdul Hamid, the

father-in-law of the deceased, Shamim Raza, was the

principal man with whom Abdul Salem and Abdul Hamid Khan

Pradhan had disputes and differences. There was no earthly

reason to bear malice and grudge against Shamim Raza who was

only a son-in-law of Abdul Hamid Khan Pradhan. Accordingly,

there was no reason to kill him particularly in the presence

of eye-witnesses as alleged. Such fact was taken note of by

the learned Sessions Judge in analysing the acceptability of

the prosecution case and credibility of the witnesses

examined in support of the prosecution case. The learned

counsel for the appellant has also submitted that there was

no reason for injuring Mohd. Umar by the accused/appellant.

He has contended that the alleged incident of gun shot

injuries had not happened in the manner alleged by the

prosecution but after such incident, the complainant and the

other alleged eve-witnesses falsely implicated the ac-

450

cused/appellant because of the old enmity between

the two groups. The learned counsel has contended that in

a very short time, a written complaint was lodged in

the Akbarpur Police Station which is admittedly four miles

away from the place of occurrence. The prosecution story is

that after the incident the said written complaint was

reduced in writing by a person other than the complainant

and thereafter the complainant went to the Police Station to

file the written complaint. If the incident had taken place

at about 6.00 P.M. as alleged by the prosecution, it is

practically impossible to lodge the said written F.I.R. at

Akbarpur Police Station by 7.15 P.M., particularly when

Abdul Hamid, the complainant did not straightaway go to the

Akbarpur Police Station but he had been to his house and got

a report of the occurrence written by Mohd. Raizwan (P.W.4)

and then lodged the F.I.R. at the Akbarpur Police Station.

The learned Sessions Judge had taken note of this very

important fact in not accepting the prosecution case.

Unfortunately, the High Court failed to appreciate the

strong reasonings given by the learned Sessions Judge in not

accepting the prosecution case. The learned counsel has

also submitted that there is serious discrepancy so far as

the injury of Mohd. Umar is concerned. Admittedly, Mohd.

Umar got injured by a gun shot at the back but the manner in

which the injured was sitting and the direction from which

the gun was fired by the appellant, could not have caused

gun shot injuries at the back of Mohd. Umar. The learned

Sessions Judge having noted such discrepancies had rightly

rejected the prosecution case implicating the

accused/appellant. He has also submitted that the doctor

had noted that Mohd. Umar sustained gun shot injuries from

a bullet but the injuries sustained by the other deceased,

namely, Shamim Raza was a gun shot injury from pellets. It

was nobody's case that different guns had been used by the

accused/appellant for injuring the said two persons

differently. Because of such discrepancy, the learned

Sessions Judge was not inclined to accept the prosecution

case and the suggestion.given by the prosecution witnesses

that Mohd. Umar might have turned his back in a reflex and

received the gun shot injuries at the back was not accepted

by the learned Sessions Judge. The learned counsel for the

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 7

appellant has also contended that the alleged eye-witness

were in the faction of the complainant Abdul Hamid and they

were partisan witnesses. Accordingly, their testimonies

were required to be considered with extreme care and

caution. The learned Sessions Judge, therefore, after

noting the various discrepancies in the prosecution case,

was not inclined to place reliance on the evidences adduced

by the alleged eye-witnesses and acquitted the

accused/appellant.

451

Such order of acquittal, in the facts of the case and the

reasons indicated by the learned Sessions Judge, was not

required to be interfered with in appeal by the High Court.

We are, however, unable to accept the submissions made by

the learned counsel for the appellant. In an appeal arising

from an order of acquittal, the appellate Court is not

precluded from appreciating the evidences on its own if the

reasons given by the learned trial Judge in passing the

order of acquittal, do not stand scrutiny and are against

the weight of the evidences adduced in the trial. The

appellate Court, will be quite justified in setting aside

the order of acquittal if it appears to the court of appeal

that improper consideration of the materials and evidences

on record was made and the reasonings of the trial Judge are

wholly unjustified. It is only necessary that the court of

appeal should weigh the reasonings of the learned trial

Judge with care and caution in the light of the evidences

adduced in the case by giving cogent reasons as to why such

findings are unreasonable and against the evidence. In the

instant case, the High Court has taken care in analysing

each and every finding of the learned Sessions Judge in the

light of the evidences adduced in the case and has given

cogent reasons as to why such findings were unreasonable and

not acceptable. It is an admitted position that the two

persons suffered gun shot injuries on December 25, 1975 in

the evening and one of the injured persons died on the spot

and the other was removed to hospital. He got serious

injuries and later on sccummbed to such injuries. The mere

fact that there was enmity and bitterness between the two

groups, by itself, does not establish that the eye-witnesses

falsely implicated the accused/appellant. Shamim Raza was

the son-in-law of Abdul Hamid and it was established in

evidence that he was looking after the cases between the

parties and making'pairvi'in civil and criminal cases. In

our view, the High Court is justified in holding that

because of such positive role taken by Shamim Raza, he had

incurred displeasure of the other group which acted as a

motive for the gun shot injuries. The learned Sessions

Judge doubted the prosecution case because of lodging the

F.I.R. at 7.15 p.m. at Akbarpur Police Station which was

about four miles away from the place of occurrence where the

incident, according to the prosecution, had taken place at

about 6.00 P.M. We do not think that such F.I.R. could not

have been lodged by that time. The High Court has

considered the reasonings of the learned Sessions Judge on

the question of lodging the F.I.R. at Akbarpur Police

Station within a short time and has, in our view, given very

good

452

reasons in not accepting the views entertained by, the

learned Sessions Judge. In our view, the learned Sessions

Judge was also not justified in holding that the gun shot

injuries suffered by Mohd. Umar had not been property

explained by the prosecution because the doctor had noted

that such injuries were caused by bullet and not by pellets.

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 7 of 7

The injuries suffered by Mohd. Umar as noted by the doctor

do not run counter to the prosecution case that such

injuries were caused by the gun used by the accused/ap-

pellant. The High Court is right, in our view, in holding

that the size of the pellet depends on the type of cartridge

used in a gun. It cannot be held as a matter of course that

simply because the pellets injuring the deceased Shamim Raza

were smaller in size than the size of the pellets used in

injuring Mohd. Umar, both the injuries could not have been

inflicted by the same gun. The High Court, in our view, is

also justified in not accepting the reasonings of the

learned Sessions Judge that the injuries caused at the back

of Mohd. Umar were not possible and run counter to the

evidences adduced by the prosecution. There was interval

though very short between the two shots and it is not at all

unlikely or highly improbable that because of the inherent

reflex, the other injured, Mohd. Umar, had turned his side

and received the injuries at the back portion. In the

instant case, there are eye-witnesses to the occurrence and

there are no intrinsic discrepancies in their evidences.

Even if it is assumed that such eye-witnesses belong to the

group of the complainant, their evidences are not liable to

be discarded on that score if such evidences otherwise

inspire confidence and get corroborated by other evidences

and from the nature of injuries, sustained by the deceased

persons. The High Court is right in holding that although

Abdul Khaliq (P.W.1) belonged to a group and appeared to be

a partisan witness, his evidence was not required to be

discarded on that ground but was required to be closely

scrutinised. The High Court, in our view, is also justified

in holding that Qamruddin (P.W.3) was not related to Shamim

Raza, deceased or the complainant and he did not belong to

any of the rival groups. This witness had no enmity with

the accused/appellant or his father. Qamruddin (P.W.3) has

been rightly held by the High Court, as an independent and

reliable witness.

It appears to us that all the findings made by the learned

Sessions Judge were considered in detail by the High Court

and the findings of the learned Sessions Judge were not

accepted by the High Court by indicating that such findings

were against the weight of the evidences and the same were

wholly unreasonable. In the aforesaid circumstances, we do

not find

453

any reason to take a contrary view in this appeal and set

aside the order of conviction made by the High Court. The

appeal therefore fails and is dismissed. By the Order dated

April 8, 1986, this Court granted bail to the

accused/appellant. In view of the dismissal of this appeal

the bail stands cancelled and the accused/appellant is

directed to surrender and serve out the sentence.

V.P.R. Appeal dismissed.

454