REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 786 OF 2001

State of U.P. …. Appellant

Versus

Nandu Vishwakarma & Ors. …. Respondents

JUDGMENT

Dr. Mukundakam Sharma, J.

1.This appeal is directed against the judgment and order of acquittal passed

by the High Court of Allahabad whereby and whereunder the High Court

acquitted Nandu Vishwakarma, Kalu and Lalloo from the charges under

Section 302 of Indian Penal Code (hereinafter referred to as ‘the IPC’)

read with Section 34 and also under Section 367 read with Section 34 IPC.

2.Before dealing with the rival contentions raised on behalf of the parties

and in order to appreciate the said contentions it would be necessary to

state a few facts leading to the registration of the aforesaid criminal case.

3.Dangar Yadav, who is the elder brother of informant PW-1 (Prithivi Pal),

and Gujrati Devi (PW-2), wife of the informant are residents of village

Samraha, Police Station Karchana. The respondents who are accused in

the present case are residents of another village namely village Dubawal,

Police Station Sarai Inayat. There is no dispute with regard to the fact that

both the informant side as also the accused are involved in litigation

pertaining to some plots of land in Kachhar village of Leelapur which is a

separate village than the village in which the informant party reside and

also from the village where the accused party reside.

4.There was an incident of mutual assault (marpit) on 26

th

February, 1979 at

about 12.00 O’ clock. It is alleged in the first information report (for short

‘the FIR’) that the informant Prithivi Pal (PW-1) and his wife Gujrati Devi

(PW-2) were engaged in harvesting their crops in village Kachhar.

Around noon, the three alleged accused persons namely Nandu

Vishwakarma, Kalu and Lalloo armed with Gandasa, lathi and spear

respectively reached the scene of occurrence and started assaulting Dangar

Yadav. Dangar Yadav raised an alarm whereupon the two witnesses

namely Prithivi Pal (PW-1) and his wife, Gujrati Devi (PW-2), who were

present in the vicinity tried to save him but in the process they were also

assaulted by the aforesaid accused persons.

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5.Consequent to the said assault caused by the aforesaid three accused

persons, Dangar Yadav died at the spot and Gujrati Devi (PW-2) also fell

down in the field. An oral report of the incident was lodged at about 5.30

p.m. by Prithivi Pal (PW-1) at Police Station Sarai Inayat. On the basis of

the aforesaid report, an FIR being Crime No. 50 of 1979 was recorded and

the investigation was started by the police. After completion of the

investigation the police submitted the charge-sheet against the respondents

herein on the basis of which charges were framed and they were tried. The

respondents pleaded not guilty and stated that they were falsely implicated

in the said case due to the litigation which is pending between the parties.

6.In the trial, the prosecution examined a number of witnesses. After

completion of the trial, the learned trial court found all the respondents

guilty of the charges against them and convicted all three of them for the

offence under Section 302 read with Section 34 IPC and also under

Section 367 read with Section 34 IPC and they were sentenced to undergo

life imprisonment for the offence under Section 302/34 IPC and for

rigorous imprisonment for five years under Section 367/34 IPC which was

to run concurrently.

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7.Being aggrieved by the aforesaid judgment and order of conviction the

respondents filed an appeal before the High Court of Allahabad. After

hearing the appeal the High Court passed an order on 24.05.2000

acquitting all the respondents of the charges under Section 302/34 IPC as

also under Section 367/34. While passing the order of acquittal various

reasons have been given and recorded by the High Court

8.All the aforesaid grounds and the findings recorded by the High Court are

under challenge in this appeal which has been filed by the State. We have

heard Mr. Sahdev Singh, Public Prosecutor appearing for the State of U.P.

as also Mr. Shree Pal Singh, Advocate appearing for the respondents.

9.The Public Prosecutor very forcefully submitted that in view of the clear

statement of the eye-witnesses namely Prithivi Pal (PW-1) and Gujrati

Devi (PW-2) in the aforesaid assault and mutual marpit the order passed

by the High Court is not tenable on the face of it and their statement

should not have been disbelieved by the High Court. It was also submitted

that the discrepancies which are referred to by the accused persons are

minor discrepancies which do not in any manner affect the substratum of

the prosecution case. Therefore, the said minor discrepancies should have

been ignored by the High Court. He next submitted that because the

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deceased had no Gandasa injury on his body the same would not belie

entirely the prosecution’s story particularly in view of the fact that the

witnesses have explained that though the accused persons tried to assault

Dangar with Gandasa but the same did not hit him. He further submitted

that the High Court committed a manifest error of law and facts in holding

that probably the occurrence had taken place at night and that what is put

forth by the prosecution as its case is a concocted story.

10.The aforesaid submissions were strongly refuted by the counsel appearing

for the respondents. Having submitted before us that there is a total

contradiction of medical evidence and the ocular evidence it was also

submitted that if Gujrati Devi (PW-2) was injured in the mutual assault

(marpit), she would have been taken to the hospital and admitted thereto

when the deceased was taken to the hospital. But admittedly, she was

admitted to the hospital only on the next day in respect of which also there

is some doubt. He further submitted that in view of the contradictions in

the statements of the witnesses, the prosecution story was rightly

disbelieved by the High Court. It was also submitted by him that if two

views are possible to be drawn up from the same set of facts and the view

taken by the High Court is a plausible view, in that event the said order of

acquittal should not be interfered with.

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11.We have considered the aforesaid submissions in the light of the record of

the case and proceed to analyse the same and thereafter giving our findings

and reasons thereon.

12.Prithivi Pal (PW-1) is the informant/complainant and is the brother of

Dangar Yadav, the deceased whereas Gujrati Devi (PW-2) is the wife of

PW-1. These two witnesses stated that they were assaulted by the

respondents with lathi and Gandasa. The said fact is, however, not

mentioned in the FIR. The incident had taken place in the village Kachhar

but neither the informant party nor the accused are residents of the said

village. There is no dispute that there is some litigation pending between

the parties in respect of the said land.

13.The High Court has found on appreciation of evidence on record that the

accused-respondents had won the case against the deceased from the court

of Deputy Collector whereas the appeal against the same was won by the

deceased. It also transpires from the record that the accused-respondent

No. 1 namely Nandu Vishwakarma had obtained a stay in the appeal

which was continuing till the date of occurrence. The informant (PW-1)

had two plots in the village Kachhar. There is no mention in the FIR to

indicate in which of the two plots the alleged incident had taken place.

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What is mentioned in the FIR is that the incident had taken place at the

disputed land. The Investigating Officer also could not enlighten and state

and clarify in his deposition in which of the two plots the incident had

actually taken place. It is disclosed from the records that there is some

evidence to indicate that the accused persons are in possession of the land

where the incident had taken place.

14.The medical examination of Gujrati Devi (PW-2) was conducted on 27

th

February, 1979 at about 7.15 p.m. which is the next morning of the

incident. Why PW-2 was not brought to the hospital along with Dangar

Yadav, the deceased and why the Investigating Officer did not take any

step to get PW-2 admitted to the hospital has not been explained at all in

his statement although he had stated that he has visited the place of

occurrence at night. It is an admitted position that Head Moharrir (PW-5)

stated that he did not send the copy of the checked FIR on 27/28.02.1979

to the Judicial Magistrate. No thumb impression of the informant was

obtained on the FIR or in the Entry made at the time of the registration of

the case. In view of the aforesaid position, the High Court came to the

finding that the FIR of the case was transcribed on the next date, that is,

after the Investigation Officer visited the site and not at the time when the

prosecution alleged to have done.

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15.Evidence of Gujrati Devi (PW-2) was not accepted by the High Court for

various reasons. One of the grounds on which her statement was not

accepted was that she made contradictory statement in the trial in as much

as she had stated at one stage that the Investigating Officer stayed at the

spot of occurrence for two hours after fall of darkness and then again

stated that he stayed there throughout the night. In her deposition she

deposed that she reached Kotwa hospital at about 12.00 p.m. in the night

but the injury report prepared by the hospital indicates that she was

medically examined in the morning. The aforesaid statement of Gujrati

Devi (PW-2) is also contradictory to the statement made by Prithivi Pal

(PW-1), her husband. There are many other vital contradictions in her

deposition which are pointed out and noted by the High Court.

16.Similarly, the deposition of Shiv Murat (PW-3) was also not believed by

the High Court on the ground that his statement is also full of

contradictions. He had stated at one stage in his statement that PW-1 and

PW-2 were harvesting the field and cutting the crops but at the later stage

he stated that the deceased was leveling his field for collecting harvesting

crop. If PW-1 and PW-2 were harvesting the crop they were using some

instruments and doing the same with the help of their respective

instruments and, therefore, the evidence of PW-1 and PW-2 that they had

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no weapons in their hands could be belied by the aforesaid statement. At

another stage he stated that Dangar Yadav was not leveling the land. His

statement is also contradictory in respect of the alleged use of weapons by

the three accused persons when the same is pitted against the statements of

PW-1 and PW-2 in that regard.

17.The medical report placed before us clearly indicate that the doctor did not

find any Gandasa injury either on the body of the deceased or on the body

of PW-1 and PW-2 who were stated to be injured witnesses. The number

of contradictions, which are referred to by the High Court in its judgment,

in respect of all the witnesses definitely make out a case of plausible view

which could be deduced from the evidence on record. Moreover, the High

Court has given detailed reasons for disbelieving the prosecution case and

for acquitting the accused persons.

18.It is a settled principle of law that when on the basis of the evidence on

record two views could be taken – one in favour of the accused and the

other against the accused – the one favouring the accused should always

be accepted. This Court in the case of Chandrappa v. State of

Karnataka,(2007) 4 SCC 415, at page 432 observed as follows :

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“42. From the above decisions, in our considered view, the

following general principles regarding powers of the appellate

court while dealing with an appeal against an order of acquittal

emerge:

(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.

(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.”

19.In the present case, it is also not clearly established from the records as to

who was in possession of the property in question where the occurrence

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had taken place. In view of the aforesaid situation and the two possible

views taken by the courts below – one taken by the trial court and the other

taken by the High Court – and the view taken by the High Court being a

plausible view, we find no ground to interfere with the order of acquittal

passed by the High Court.

20.Accordingly, this appeal has no merit and is, therefore, dismissed.

……………………………J.

(Dr. Mukundakam Sharma)

…………………………..J.

(Dr. B.S. Chauhan)

New Delhi,

July 6, 2009

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