TMI Blog1998 (2) TMI 595X X X X Extracts X X X X X X X X Extracts X X X X ..... Ird Additional District and Sessions Judge, Etah in Sessions Trial No. 43 of 1981 and Sessions Trial No. 144 of 1981, respectively, clubbing those two cases together, for various offences punishable under different provisions of the Indian Penal Code indicated below. 2. By judgment dated 3-7-1984, the learned Sessions Judge found Nahar Singh (A-1) guilty of offences punishable under Sections 148, 302 (simpliciter), 449 and 201 IPC, sentenced him to death under Section 302 IPC, subject to confirmation by the High Court; sentenced him to undergo a two years' rigorous imprisonment under Section 148 IPC, seven years' rigorous imprisonment under Section 449 IPC and four years' rigorous imprisonment under Section 201 IPC. Shishupal Singh (A-2) and Ram Gopal (A-6) were found guilty of offences under Sections 148, 302/149, 449 and 201 IPC and were sentenced to undergo imprisonment for life under Sections 302/149 IPC, two years' rigorous imprisonment under Section 148 IPC, seven years under Section 449 IPC and five years' rigorous imprisonment under Section 201 IPC. The sentences of imprisonment were directed to run concurrently. The other accused persons, namely, Liy ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... .00 a.m. and handed over the same (Exh. Ka-1) in the police Station to the Head Constable, Pyare Lal, at 7.00 a.m., who prepared a check report (Exh. Ka-12) and registered the case in the general diary (Exh. Ka-13). Rajender Singh Asthana, Sub-Inspector (PW 16) took up the investigation. He found three half-burnt dead bodies on the vacant land behind the Junior a High School, Patna. He prepared the inquest report and sent the dead bodies for post-mortem examination through Constable Gajender Pal and Rajender Pal. Thereafter, he recorded the statements of PWs 1, 2, 3 and 5 (eyewitnesses), proceeded to the house of the deceased Ram Gopal, prepared recovery memo of empty cartridges and collected the bloodstained earth and plain earth which was found in front of his house. He then went to the houses of Vijay Pal and Manpal, the victims. He noticed the marks of dragging of the dead bodies from their houses to the Junior High School where the bodies were kept on the heap of dung cakes and burnt. He also found blood at two places in front of the house of Vijay Pal and also inside the house and collected the bloodstained earth and plain earth and prepared the recovery memo. He found ten pe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... charged and that the High Court was not justified in acquitting A-2 and A-6 for reasons which are trivial and contrary to the evidence. The learned counsel for the said respondents supported the reasons given by the High Court and argued that after thoroughly examining the evidence, the High Court found them not guilty and it is not a case which warrants interference in the appeal against acquittal. 9. To appreciate the contentions of the learned counsel, we have gone through the judgments of the trial court and the High Court and the evidence on record. The trial court believed the evidence of PW 1 (an eyewitness) who spoke to the fact that Nahar Singh and Shishupal Singh were armed with guns and Ram Gopal was armed with a ballam (spear) and they were among the bandits who committed the murder of the deceased Ram Gopal. The evidence of PW 1 was corroborated on all the material facts by PW 2 (another eyewitness). The statement of the third eyewitness, PW 3, although a child witness, was also relied upon by the trial court, nothing that she was consistent in her statement that Nahar Singh and Shishupal Singh were armed with guns and that Ram Gopal was armed with ballam (spear) wh ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ight at the time of occurrence at about 6.30 p.m. either at the house of Ram Gopal or at the house of Vijay Pal to enable the witnesses to recognize the assailants of the three deceased persons, weighed with the High Court to conclude that the prosecution had failed to prove the guilt of A-2 and A-6 beyond shadow of doubt. 11. On careful reading of the evidence of PWs 1, 2, 3 and 5 which was accepted by the High Court to record the finding that Ram Gopal, Vijay Pal Singh and Manpal were murdered on the evening of 4-10-1980, we are of the opinion that reasons given by the High Court to acquit A-2 and A-6 are hardly sufficient to justify interference with the well-considered judgment of the trial court finding them guilty of offences under Sections 302, 148, 449 and 201 IPC. 12. Now, we shall examine those reasons. The High Court laid some emphasis on certain aspects dealing with the FIR; firstly delay in filing the FIR, which remained unexplained, and also on the fact that there was consultation before filing the FIR. The evidence on record discloses that gruesome murder of the deceased persons was committed by the appellants and others who dragged the dead bodies to the rear ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... him, the circumstances which, it is suggested, indicate that the story he tells ought not to be believed, to argue that he is a witness unworthy of credit. My Lords, I have always understood that if you intend to impeach a witness, you are bound, whilst he is in the box, to give an opportunity of making any explanation which is open to him; and, as it seems to me, that is not only a rule of professional practice in the conduct of a case, but it is essential to fair play and fair dealing with witnesses. This aspect was unfortunately missed by the High Court when it came to the conclusion that explanation for the delay is not at all convincing. This reason is, therefore, far from convincing. 15. Regarding preparation of the FIR in consultation with others, it is noticed that this is spoken to by PW 2 who is the brother of the deceased Ram Gopal. The complaint is said to have been prepared by PW 1, son of the said Ram Gopal, late in the night at about 2.00 a.m. When there are two male members of the family who were grief-stricken, it was but natural that PW 1 and his uncle (PW 2) should talk about giving the complaint and draft the same. This fact, in the circumstances of this ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... was burning at the scene of the occurrence and there was no sufficient artificial light which could enable the eyewitnesses to identify the assailants. That part of the statement of PW 5 which is referred to by the High Court to infer that there was no light to identify the assailants, reads as follows Sham ke sade chhe baje samaye tha. Suraj doob chuka tha. Suraj chhip gaya tha, magar roshni thi. Us samaye ghar me lalten jala li thi. Lalten isliye jala li thi ki dono wakt mil gaye the. 20. From the above-quoted statement, it is evident that the time was 6.30 p.m. and that though the sun had set, yet there was light and at that time the lantern was also lighted. She had given the explanation for lighting the lantern as Dono wakt mil gaye the . It is a colloquial phrase which means that the daytime was over and the evening time had commenced. At that time, it won't be too dark, to see a person particularly when he is known .. Further, when the light was enough to enable the assailants to identify their victims and kill them, it can hardly be contended, much less accepted, that the light was not enough to identify the assailants. 21. The principle with regard to int ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... pal ((1988) 4 SCC 302 1988 SCC (Cri) 928) M. N. Venkatachaliah, J. (as he then was) summarised the principle as follows The plenitude of the power of the appellate court to review and reappreciate the evidence cannot be limited under the supposed rule that unless there are 'substantial' or 'compelling' reasons or 'very substantial reasons' or 'strong reasons', the findings in a judgment of acquittal should not be interfered with. There is thus no immunity to an erroneous order from a strict appellate scrutiny. But the appellate court wherever it finds justification to reverse an acquittal must record reasons why it finds the lower court wrong. In Ajit Savant Majagvai v. State of Karnataka ((1997) 7 SCC 110 1997 SCC (Cri) 992) the abovenoted principles have been approved and restated. 23. If on reassessment of the evidence, the appellate court comes to the a conclusion that the guilt of the accused is established, the fact that the appeal is against the acquittal will be immaterial. However, if two views are possible, the court, having regard to the basic principle that presumption of innocence of the accused gets strengthened by the fact ..... X X X X Extracts X X X X X X X X Extracts X X X X
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