TMI Blog1973 (5) TMI 104X X X X Extracts X X X X X X X X Extracts X X X X ..... ly of Sheonandan Mishra, Surjug Mishra. Kamalnain Mishra, Ramasis Mishra and the deceased Ramautar Mishra. bearing plot No. 60 with an area of 9 decimals. Adjacent towards east of this plot is plot No. 50 with an area of 89 decimals which is Gairmazarua. A portion of this Gairmazarua land, adjacent to plot No. 60, is in the cultivating possession of the family of Mishras since a long time. There was, it appears, a proposal to give, as a reward, 5 acres of land to Chandeshwar Mishra, a brother of Sarjug Mishra, P.W. 12, who was in military services. On behalf of Chandeshwar Mishra a request was made to include in the aforesaid area of five acres proposed to be awarded to him, a portion of plot No. 50 which was already in possession of the family of Mishras. This greatly annoyed the accused persons. As a result, proceedings under Sections 144 and 107, Cr.P.C. were started at the instance of Sarjug Mishra, P.W. 12. In the proceedings under Section 107, notices were issued to the accused persons on September 3, 1965 to show cause by September 28, 1965 as to why they should not be directed to execute interim bonds to keep the peace. On 22nd September, 1965 the occurrence in question too ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lesser penalty was awarded to him because of his young age. It may be pointed out that the appellant is stated in the judgment of the trial court to be 22 years of age. So far as the other accused are concerned, the High Court observed that there was no charge of specific assault against them and that they were merely charged with the murder of Ramautar under Sections 302/149, I.P.C. and for being members of the unlawful assembly under Sections 147 and 148, I.P.C. From the evidence of Jagdish Yadav P.W. 15, the presence of some of the accused persons was considered doubtful. The charge under Sections 147 and 148, I.P.C. against them having thus been held to be unsubstantiated, the charge under Sections 302/149, I.P.C. was on this ground also held to be unsustainable. The order of acquittal against them was, therefore, affirmed. 5. Before us, Shri Mookerjee, the learned Counsel for the appellant, has addressed elaborate arguments and has very forcefully and eloquently argued that the judgment of the trial court is reasonable and if that court had on appraisal of the entire evidence disbelieved the prosecution story, the High Court was incompetent, on appeal against acquittal, to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... fact and the reasons given by the court below in support of its order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified. The counsel also drew our attention to Gopi Nath Ganga Ram Surve v. State of Maharashtra : (1970)3SCC627 where it was reiterated that the power of the Appellate Court in an appeal against acquittal is not different from that it has in appeal against conviction and that the difference lies merely in the manner of approach and perspective rather than in the content of the power. In that case, this Court, after examining the judgments of the High Court and of the Sessions Judge and after hearing the counsel, felt satisfied that, the High Court had approached the evidence from a correct perspective and had given definite findings on a consideration of the entire evidence and had, therefore, not departed from any principle laid down by this Court. The learned Counsel then took us through the salient features of the case in hand and submitted that the trial court had approached several aspects of the case from erroneous point of view and had also wrongly excluded some relevant evidence. P.W. 12. ac ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ected to examine the entire evidence for itself under Article 136 of the Constitution in cases where the High Court has, on appeal, reversed the order of acquittal and convicted the accused persons. this Court only examines so much of the evidence as is necessary for the purpose of determining whether the High Court has kept in view the guidelines laid down by the Privy Council in Sheo Swarup's case and later in numerous cases heard and disposed of by this Court. Those guidelines are well known and have already been adverted to. 10. Turning to the case in hand, it is obvious that the trial court had committed several errors in appraising the evidence led in the case. It not only ignored but appears even to have misread part of the evidence in certain respects and as a result thereof arrived at conclusions which on a proper appraisal and reading of the evidence would be clearly erroneous and unsustainable. The trial court's approach in evaluating the evidence appears to us to be unfair and irrational. For example, it has condemned the prosecution by imputing to it attempt to falsely implicate Suresh accused. This is how the trial court has dealt with this matter. One o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... uresh had not come there. She added that her sister's son Suresh had actually come to her place one day before. P.W. 12, Sarjug Mishra in cross-examination stated that in addition to the witnesses his Mausera brother Suresh had come there after the occurrence. This statement was recorded on September 27, 1966. Jagdish Yadav, P.W. 15 in his cross-examination stated that accused Suresh was not his brother by village relation and that he did not know any other Suresh except this one. Suresh accused was examined in the court of Committing Magistrate on March 4, 1966. In his examination as an accused in that court he gave his age to be 14 years and merely denied the prosecution allegations as false, adding that he had not committed the offence. He did not say anything else. in the court of the Third Additional Sessions Judge, he was examined as an accused on October 4, 1966 when he gave his age as 18 years and after denying all the allegations, when he was asked generally if he had any thing more to say, he replied: People were carrying the dead body of Ramautar in the night by the west of my house. I went there and accompanied them up to P.S. Sarjug sent me back from there. W ..... X X X X Extracts X X X X X X X X Extracts X X X X
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