TMI Blog2011 (7) TMI 1379X X X X Extracts X X X X X X X X Extracts X X X X ..... misappreciation of evidence or apparent violation of settled canons of criminal jurisprudence. When the conclusions of the High Court in the background of the evidence on record are tested on the touchstone of the principles set out above, the inevitable conclusion is that the High Court's judgment does not suffer from any infirmity to warrant interference. A Bench of this Court in State of Kerala and Anr. v. C.P. Rao [ 2011 (5) TMI 860 - SUPREME COURT] , discussed the scope of interference by this Court in an order of acquittal and while reiterating the view of a three Judge Bench of this Court in the case of Sanwat Singh and Ors. v. State of Rajasthan [ 1960 (12) TMI 88 - SUPREME COURT] . Reference can also be usefully made to the judgment of this Court in the case of Suman Sood v. State of Rajasthan [ 2007 (5) TMI 689 - SUPREME COURT] , where this Court reiterated with approval the principles stated by the Court in earlier cases, particularly, Chandrappa v. State of Karnataka,[ 2007 (2) TMI 704 - SUPREME COURT] Emphasizing that expressions like 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... mbers of the mob, of whom they could identify a few, assault the deceased. This statement clearly shows the trustworthiness of these witnesses as they have stated that there were some other persons whom they could not identify. However both these witnesses and complainant Satyanarain clearly identified the persons who had entered and assaulted the deceased persons. Though Satyanarain (PW 7) fully supported the case of the prosecution that he was also assaulted by these persons, he did speak in a different voice the next day before the Court. In our considered opinion the cumulative effect of the ocular evidence and documentary evidence is that the prosecution has been able to establish its case beyond reasonable doubt. Ld Counsel for the accused contend that there was no common object to commit murder - In the present case, common object to commit murder has been fully proved. Second, the case of the prosecution is not that the entire mob had entered the house of the deceased. Out of the mob of 50-60 persons only 7 to 10 persons had broken the door of the house and some of them had climbed the wall to enter the house of the deceased. These persons had raised the slogan 'maro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eferred an appeal before the High Court, raising various issues in relation to the appreciation of evidence, false implications, contradiction in statements of witnesses and that no evidence had been led against them. On these premises, they prayed for setting aside of the judgment of the trial court and claimed acquittal. The High Court vide its judgment dated 15th March, 2005, acquitted all the accused and passed the following order: 9. That takes us to the evidence of the eye witnesses examined at the trial. Coming to the testimony of Mahesh (PW-4) we notice that in his examination in chief he deposed that a mob of around 70 persons of muslim (sic) attacked the house of Govind Narayan, but he could identify only Mehboob, Hanif and Zabbar. He however, could not identify Afzal and Mannan. In his cross-examination Mahesh stated that he did not narrate the incident to anybody for 5-7 days. He did not go to jail or other place for the purpose of identification of accused Kanhaiya Lal (PW5) deposed that mob of 60-70 persons belonging to Muslim community entered the house of Govind Narayan. He could identify Afzal, Kadir, Islam, Bada Bhaiya, two brother of Noor Tractorwala, Zabbar T ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ase. 3. State of Rajasthan aggrieved by the said judgment of acquittal, preferred the present appeal before this Court. 4. Let us briefly examine the case of the prosecution. As per the submission of the State, this Court should set aside the judgment of acquittal and punish the accused in accordance with law. 5. Satyanarain Baheti made a report to the S.H.O., Police Station, Malpura in front of the hospital at Malpura on 9th December, 1992 to the effect that, at about 11.15 a.m. that morning the complainant had been standing outside his house in Bahetiyon-ke-Mohalle in Ward No. 6 of Kasba Malpura. Hearing the noise of the stampede and uproar, he entered his house and closed the door. After a while a crowd came from the side of Hathai and started pelting stones at his house. Two or three persons came inside the house after breaking the bolt of the door. Satyanarain ran to stop them but those persons started beating him. Thereafter, 8-10 persons including Afzal son of Mota, Mahboob son of Jumma, two brothers of tractorwala, Syyed Jabbar Ahmad tractorwala, Abdul Manjan son of Jabbar, Hanif son of Iqbal and Qadir Islam came inside by climbing the back wall. These persons were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nt at the place of occurrence. Similar stand was taken by Zabbar. 7. The learned trial court discussed the prosecution evidence as well as the defence at great length. While holding the statements of above eye-witnesses trustworthy and finding the witnesses led by the defence as not credible, the court held as under: In the opinion of the court, the evidence of witnesses Ramnarain and Nathu Lal does not inspire confidence. When this Court could not ignore the evidence of witnesses - Mahesh, Kanhaiyalal and Satyanarain in any manner, which is the reliable evidence of eye-witnesses to the occurrence, under such circumstances, the evidence of witnesses - Ramnarain, Nathu Lal, Satya Narain and Ratan Singh does not inspire confidence of the court that at the time of occurrence, at the three accused persons were not present at the place of occurrence, rather they were present at the place told by the defence witnesses. Such type of defence evidence, appears to be absolutely fabricated, because such type of evidence can be prepared easily. 8. The trial court had specifically recorded the finding that the prosecution has been able to establish its case that the role of the accused ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is a settled principle of criminal jurisprudence that the burden of proof lies on the prosecution and it has to prove a charge beyond reasonable doubt. The presumption of innocence and the right to fair trial are twin safeguards available to the accused under our criminal justice system but once the prosecution has proved its case and the evidence led by the prosecution, in conjunction with the chain of events as are stated to have occurred, if, points irresistibly to the conclusion that accused is guilty then the Court can interfere even with the judgment of acquittal. The judgment of acquittal might be based upon misappreciation of evidence or apparent violation of settled canons of criminal jurisprudence. 10. We may now refer to some judgments of this Court on this issue. In State of Madhya Pradesh v. Bacchudas, (2007) 9 SCC 135, the Court was concerned with a case where the accused had been found guilty of an offence punishable under Section 304 (Part II) read with Section 34 IPC by the trial court; but had been acquitted by the High Court of Madhya Pradesh. The appeal was dismissed by this Court, stating that the Supreme Court's interference was called for only when ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... terference by this Court in an order of acquittal and while reiterating the view of a three Judge Bench of this Court in the case of Sanwat Singh and Ors. v. State of Rajasthan, AIR 1961 SC 715, the Court held as under: 14. In coming to its conclusion, we are reminded of the well settled principle that when the court has to exercise its discretion in an appeal arising against an order of acquittal, the Court must remember that the innocence of the accused is further re-established by the judgment of acquittal rendered by the High Court. Against such decision of the High Court, the scope of interference by this Court in order of acquittal has been very succinctly laid down by a Three-Judge bench of this Court in the case of Sanwat Singh and Ors. v. State of Rajasthan, 1961 (3) SCR 120. At page 129, Justice Subba Rao (as His Lordship then was) culled out the principles as follows: The foregoing discussion yields the following results: (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case, 1934 L.R. 61 I.A. 398, afford a correct guide for the appellate court's approach ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ificant error in the judgment of the High Court. Though the High Court has made a reference to the injuries inflicted upon the body of the deceased as detailed by Dr. Chandra Prakash (PW2) in his report, there is no discussion of his statement, in regard to nature of injuries inflicted and the weapon used for inflicting such injuries. There is also no discussion in the judgment of the High Court on the comparative evaluation of medical evidence, ocular evidence and the documentary evidence produced by the prosecution on record. These are certainly material evidence which have either been completely ignored, or not appropriately appreciated by the High Court. This renders the judgment of the High Court perverse, and provides strong reasons for this Court to interfere with the judgment of acquittal. In our considered view, the order of acquittal can hardly be sustained where it is based just on some contradiction in the statements of the while completely ignoring the entire case of the prosecution particularly when the prosecution has been able to prove its case beyond reasonable doubt. Dr. Chandra Prakash (PW2), who on 9th December, 1992 was posted as SMO at medical centre, Malpura ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... eral nature were sufficient to cause the death of Govind. The death of Govind was caused within 2 to 3 hours from (sic) conducting the post mortem I have prepared the post mortem report which is exhibit and is verified. It bears my signature at A to B and I have entered the cause of death at C to D. 14. Mahesh (PW 4) in his statement in Court had stated that he saw a mob of persons belonging to the Muslim community approaching when he was standing outside his house. Some of them held swords in their hands, some of them lathies and some held pharsi and once they reached the house of Govind Narain, they forcibly opened the door. He went onto the roof of Premchand Mehru's house, from where he could see that some persons were pushing the door of Gopal Narain's house. He identified the persons who jumped inside the house, as Mahboob, Haneef and Abdul Zabbar. Even in the Court, he rightly identified one person Abdul Zabbar. This witness stated the he knew Zabbar even prior to the occurrence. He had also taken Kanhaiya Lal, who was injured, to the hospital. He had seen the accused persons at the place of incidence. He was subjected to lengthy cross examination. In his cross exa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Govind Narain and Hari Narain with lathi and pharsi which he witnessed from his room. According to PW7, the injuries were caused on the head. He came out of his room and tried to save them, and in the process, he also suffered injuries. In the meantime, the police siren blew and upon hearing the same, these persons ran away. The witness correctly identified Zabbar and Afzal in Court and stated that these persons had caused injuries to the deceased. This witness referred to the place of occurrence, preparation of site plan and medical report by the doctor, he admitted his signature on all these documents including Exh. P-8. It appears from the record that during recording of statement of this witness, the public prosecutor sought permission to declare the witness hostile. Without declaring him hostile, the Court had permitted him to be cross-examined by the public prosecutor. This related to the fact that after hearing portion C to D, part of Exh. P-9, the witness has stated that after identifying the accused, he had stated the name of the accused as Abdul Mannan to the police. He then stated that Abdul was also there, however he could not identify him definitely. At that stage, thi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 9 which is at variance cannot be treated as gospel truth. In fact the bare reading of the statement clearly shows this fact. Even if we exclude the statement of PW7 from consideration, then identity of the accused is still fully established by the statements of PW3, PW4, PW5 and PW6. There is no reason, whatsoever advanced, as to why PW4 and PW5 (neighbours of the deceased) who are otherwise independent witnesses, and the doctor would involve the accused falsely. There is no animosity between the parties, and in fact according to these witnesses, they knew the accused particularly Abdul Zabbar, Afzal and Mannan for quite some time. There is no reason for the Court to hold that PWs 4 and 5 are not trustworthy. Their statements describe the occurrence in its proper course and are compelling evidence of the same. We do not find it appropriate to discard their statements as not inspiring confidence. The statement of these witnesses must be appreciated in the proper perspective. It was an incident involving a mob but only few persons had entered the house of the deceased, out of which 7 to 8 persons could be identified including the three accused as having inflicted injuries on the body ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ror by concluding that the prosecution had failed to discharge its burden. Thus, the judgment proceeds on a surmise that renders it unsustainable. The trial court did not find evidence of Bhugan (DW.1), examined by Mohd. Iqram, one of the Respondents, worth acceptance. 16. The High Court did not even make any reference to him. It is a settled legal proposition that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse i.e. the conclusions of the courts below are contrary to the evidence on record or its entire approach in dealing with the evidence is patently illegal, leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case, the appellate court should interfere with the order of acquittal. While doing so, the appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the courts below bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. 17. In the instant case, the circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nlawful assembly and in furtherance to their common object and intent, assaulted and caused injuries to vital parts of the bodies of the deceased, ultimately resulting in their death. We, therefore, have no hesitation in holding that there is no merit in this contention of the accused and the trial Court applied the law correctly. 21. Section 149 consists of two parts; the first deals with the commission of an offence by any member of an unlawful assembly in prosecution of the common object of that assembly; the second part deals with commission of an offence by any member of an unlawful assembly in a situation where other members of that assembly know the likelihood of the offence being committed in prosecution of that object. In either case, every member of that assembly is guilty of the same offence, which other members have committed in prosecution of the common object. 22. The final point is the common object. The case of Lokeman Shah v. State of W.B., (2001) 5 SCC 235 on this point would further substantiate the case of the State and diminish the worth of the defence. Accused have inflicted the injuries after raising slogan and have commonly participated in committin ..... X X X X Extracts X X X X X X X X Extracts X X X X
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