IMPORTANT POINT
Where there are glare and severe errors committed by High Court in reversing the conviction into acquittal, Supreme Court will not desist in interfering with it notwithstanding long interval between acquittal and the hearing of the appeal against it.

Headnote:(i) Criminal Procedure Code, 1973-Section 378-Appeal against acquittal-High Court disbelieved prosecution case on its suspicion about the lodging of FIR-Whether FIR was promptly lodged at or about 1.30 AM ? (Yes)-(Paras 13 & 14)-The Investigation started on the basis thereof is wholly reliable and acceptable-Delay in despatch of FIR to Magistrate-No unusual delay (Para 15)-Delay, if any, would not make the prosecution case suspect (Para 16)-Criticism of High Court regarding FIR based on P.W. 23 s inability to fully under Award Marathi Language is based on surmise. (Para 17)
       Held : Now that we have found that none of the grounds canvassed by the High Court for concluding that the F.I.R. was not lodged at or about the time alleged by the prosecution is sustainable, neither the prosecution case nor the evidence of P.W.14 can be doubted on that score as has been done by the High Court. (Para 18)
       (ii) Criminal Procedure Code, 1973-Section 378-Appeal against acquittal-High Court disbelieving evidence of 4 eye witnesses-No doubt about time of incident at 8 p.m.-(Para 19)-Non-lodging of report to sarpanch first is not against normal human behaviour (Para 20)-PW 14 disbelieved on irrational observations by High Court as to light of the lanterns and its non-seizure by police (Para 22)-PW 14 was a natural and disinterested witness (Para 23)-He lodged FIR-PW 15 also a disinterested eye witness-His evidence wrongly discarded on supposed minor contradictions (Para 24)-PWs. 16 and 17 eye witnesses to second murder disbelieved on erroneous reasons (Paras 29, 30)-Discarding of their evidence on ground that other present persons were not examined is against law (presumption under Section 114(g) Evidence Act) (Para 31)-Motive, even if not satisfactorily proved, whether material ? (No) (Para 32)-Recoveries rejected without any reasons-Even without recoveries case stands proved. (Para 33)
       Held : Without meaning any disrespect to the High Court we are constrained to say that the impugned judgment is a laboured one. Material evidence has been ignored, unimpeachable evidence has been rejected on surmises and conjectures, undue importance has been given to and emphasis laid on trivial and ignorable contradictions and some conclusions have been drawn which are self contradictory. In fine, on the materials on record it is impossible to accept the conclusions of the High Court that the prosecution had failed to establish its case. It is in the context of these glaring and severe errors which has led to gross failure of justice, that we are unable to accept the threshold plea raised on behalf of the respondents that having regard to the long interval between the acquittal and the hearing of this appeal this Court may not interfere with the judgment. (Para 12)
       (iii) Indian Penal Code, 1860-Sections 302/34-Two murders by four respondents in furtherence of common intention-Appeal against acquittal-Even if prosecution case is accepted, R3 whether not liable for any of the two murders-(No, he is liable) (Cr.P.C. 1973-Section 376)
       Held : The evidence of the eye witnesses clearly establishes that R3 accompanied by R1 and R2, who were armed, first went to the shop of P.W. 14. Evidence further reveals that during assault on D1 he detained P.W. 14 and P.W. 15 when they tried to go out of the shop obviously to ensure that they could not call other people to come to their rescue. Evidence also reveals that after D1 was murdered, he went to the shop of P.W. 16, with R1 and R2 where the other murder was committed. During the assault on D2 when P.W. 17 caught hold of the handle of the axe that was in the hand of A1, A3 went behind P.W. 17, fisted him twice on the backof his neck, pushed him down the katta and detained him. From all these facts and circumstances it is patently clear that he also shared a common intention with R1 and R2 to commit the murders. (Para 34)
       Held finally : On the conclusions as above we allow this appeal, set aside the impugned order of the High Court and restore that of the trial Court so far as they relate to Moin Patel, (R1), Janu Patel, (R2) and Gofi Patel, (R3). As, the above three respondents are on bail they will now surrender to their bail bonds to serve out the remainder of the sentence. (Para 35)

JUDGMENT

M.K. Mukherjee, J.-This appeal, at the instance of the State of the Karnataka, is directed against the judgment of the Karnataka High Court in Crl. Appeal No. 158 of 1980 whereby the High Court reversed the conviction and sentence recorded against the four respondents under Section 302 read with Section 34 IPC (on two counts) and also under Section 324 IPC against the Respondent No. 2 by the Additional Sessions Judge, Bidar and acquitted them. The two deceased, who were brothers, were closely related to the respondents in that the respondent No. 2 is the real brother of their father while the other three respondents are his (respondent No. 2 s) sons. During pendency of this appeal the respondent No. 4 died and, therefore, the appeal, so far as he is concerned, abates.

2. According to the prosecution case on June 25, 1978, at or about 8 P.M., the four respondents (hereinafter referred to as R1 to R4 respectively), who, along with the family of the deceased, are residents of village Kaplapur within the police station of Khatak-Chincholi in the district of Bidar went to the shop of Gorakhnath (P.W. 14) in their village where Ismail Patel ( D1 for short) was sitting and assaulted him with axe and sickle resulting in his instantaneous death. Thereafter they went to the house of Chinnamma (PW 16), situated at a distance of 60/70 paces from the shop of Gorakhnath, and similarly did away with the other brother Syed Patel ( D2 for short). When one Sakharam tried to come to the rescue of D2 he was also assaulted by R2 resulting in an injury on his left thigh. After the incident Gorakhnath, accompanied by Amir Patel (PW 12) and others, went to the Police Station and lodged a report there at or about 1 A.M. On that report PSI Khaja Sanaulla (PW 23) registered a case and after sending a report of the same to the Judicial Magistrate, Bhalki left for Kaplapur Village at or about 1.45 A.M. Reaching there at 5 A.M. he held inquest on the dead bodies and sent them for post mortem examination. He seized some blood stained earth and sample earth from the two places where the dead bodies were found as also the blood stained clothes found on the bodies. He then recorded the statements of some of the witnesses under Section 161 Cr.P.C. On that very day (26.6.1978) Gulam Hamid (P.W. 24), the Circle Inspector of Police took over investigation of the case from P.W. 23 and went in search of the respondents but could not find them. However his repeated attempts to arrest the respondents ultimately met with success on July 17, 1978, when they were found in a ditch near river Kanaja, flowing across Kurub Khedgi Village. In course of search of their persons P.W. 24 found two Keys in the pocket of the baniyan of R2 and seized them. Pursuant to the statement made by R2 (Ex.P. 36) and led by him PW. 24 went to his house and with one of the seized keys he (R2) opened a room wherefrom a sickle, a dhoti and baniyan, all of which were blood stained, were recovered. Thereafter R1 took them to another room which on being opened with the other seized key found to contain an axe, a bushshirt, and a pair of trousers, all blood stained. P.W. 24 seized all those articles and sent them for chemical examination. On receipt of the report of the post mortem examination and chemical examination and after completion of investigation, PW 24 submitted a charge sheet and in due course the case was committed to the Court of Session.

3. The motive that was ascribed by the prosecution to the respondents for the above murders was that the families of the accused and the deceased were having disputes and frequent quarrels over their properties in their village, and about a fortnight prior to the incident R2 had threatened D2 with dire consequences.

4. The respondents pleaded not guilty to the charges levelled against them and their defence, as can be gathered from the trend of cross-examination and their statements recorded under Section 313 Cr.P.C., was that D1 had an illicit

Click Here to Read the rest of this document

1996 Supreme(SC) 442

IMPORTANT POINTWhere there are glare and severe errors committed by High Court in reversing the conviction into acquittal, Supreme Court will not desist in interfering with it notwithstanding long interval between acquittal and the hearing of the appeal against it.

Cases Referred (1)

IMPORTANT POINT
Where there are glare and severe errors committed by High Court in reversing the conviction into acquittal, Supreme Court will not desist in interfering with it notwithstanding long interval between acquittal and the hearing of the appeal against it.