TMI Blog2006 (1) TMI 660X X X X Extracts X X X X X X X X Extracts X X X X ..... that the High Court has not interfered in the matter in a routine manner merely because a different view is possible. The High Court has interfered rightly, in our view, because the trial court unreasonably disbelieved the evidence of six eye-witnesses on insufficient grounds. The High Court has also assigned reasons for interfering with acquittal. We find no error in the decision of the High Court. The accused before the trial court were 27 in number. PW- 4 specifically named 22 persons and further named the four out of them who landed him the blows. PW-3 names 12 persons who came as a group. Other eye-witnesses also clearly stated that the appellants with other accused who were present in court had come to attack Sadruddin. As noticed, the trial court chose to acquit all the 27 accused. In the appeal filed by the State, leave was granted by the High Court only in regard to five of the accused, as they were specifically named as the persons wielding weapons and causing injuries to Sadruddin and others and as the names of others were mentioned only as being members of the assembly without any specific act being attributed to them. The High Court gave benefit of doubt to one of the ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 324/149 and 323/149 of the Indian Penal Code. Appellant Nos. 1 and 2 and one Nazir Khan were also charged under Section 25/27 of the Arms Act. 3. The trial court by judgment dated 16.8.1995 acquitted all 27 accused primarily on three grounds. The first is that all the eye- witnesses belonged to Sadruddin group who had enmity with the accused and, therefore, their statements were not reliable. The second is that no independent eye-witness was examined even though some spectators were stated to be present. The third is that there were inconsistencies in the statements of the eye- witnesses. 4. The State filed an appeal before the Madhya Pradesh High Court in Criminal Appeal No. 874 of 1995. Leave to appeal was granted by the High Court under Section 378(3) of Cr.P.C. in regard to five accused (the four appellants and one Anwar) who were specifically named in the evidence as persons who attacked and injured PWs. 4, 6, 7, 9 and 10. Thus, the acquittal of other 22 who were not named by any of the witnesses and to whom no specific overt act was attributed, attained finality. 5. The High Court by its judgment dated 13.12.2004 allowed the appeal in part, convicted appellant Nos. 1 to 4 and ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... evidence two views are possible and if the trial court has taken one view on the said evidence, unless the appellate court comes to the conclusion that the view taken by the trial court is either perverse or such that no reasonable person could come to that conclusion or that such a finding of the trial court is not based on any material on record, it should not merely because another conclusion is possible reverse the finding of the trial court. 8. While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals, the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 2. It is true that only Sadruddin clearly stated as to who hit him with what weapon and at which part of his body. The other four eye-witnesses (PWs 6, 7, 9 and 10) have not stated who landed the blows on them. All of them, however, identify Kallu as hitting Sadruddin on the head. In addition, Baby (PW-9) has stated that Shafi hit Sadruddin on the nose and Annobai (PW-10), stated that Bhuria hit Sadruddin with a sword. 13. The evidence of PWs. 4, 6, 7, 9 and 10 when read with the evidence of PW-3 makes it clear that appellants 1 to 4 along with others, had come armed with swords, spears, hockey sticks etc.; that a blow was given when Sadruddin was sitting on Otla of his house and, thereafter, he ran a few steps and there all the appellants landed him blows with different weapons. It is also clear that when the womenfolk, namely, PWs.6, 7, 9 and 10 ran to save him, they were also beaten up. The evidence also clearly shows that neither Sadruddin nor the womenfolk were armed. On the other hand, appellants 1 to 4 were armed when they came in a group along with others to Sadruddin's house shouting kill/hit . The evidence of the eye-witnesses is also clear that but for a Police van i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s of his family. 16. We find that the High Court has not interfered in the matter in a routine manner merely because a different view is possible. The High Court has interfered rightly, in our view, because the trial court unreasonably disbelieved the evidence of six eye-witnesses on insufficient grounds. The High Court has also assigned reasons for interfering with acquittal. We find no error in the decision of the High Court. 17. The contention that when only four persons are found guilty, there cannot be conviction under Section 149 IPC, has no merit. Section 149 provides that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. Section 141 requires a minimum of five persons for being designated as an 'unlawful assembly'. 18. The question has been specifically considered by this Court in Mohan Singh and Anr. v. State of Punjab AIR1963SC174 and Ram Bilas Singh and Ors. v. The Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... and further named the four out of them who landed him the blows. PW-3 names 12 persons who came as a group. Other eye-witnesses also clearly stated that the appellants with other accused who were present in court had come to attack Sadruddin. As noticed above, the trial court chose to acquit all the 27 accused. In the appeal filed by the State, leave was granted by the High Court only in regard to five of the accused, as they were specifically named as the persons wielding weapons and causing injuries to Sadruddin and others and as the names of others were mentioned only as being members of the assembly without any specific act being attributed to them. The High Court gave benefit of doubt to one of the five (Anwar) though his presence as a member of the group was accepted. This resulted in conviction of only four. This does not mean that there is no finding that there was an unlawful assembly. When the evidence clearly shows that more than five persons armed with swords, spears etc. had come to the house of Sadruddin with the common object of causing injury, and injured him. The mere fact that several accused were acquitted and only four are convicted, does not enable the four wh ..... X X X X Extracts X X X X X X X X Extracts X X X X
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