IMPORTANT POINT
High Court was justified in this case in setting aside order of acquittal of the Trial Court. There is no illegality or error of jurisdiction requiring interference by Apex Court.

Headnote:Indian Penal Code, 1860-Sections 302 and 452-Appellant charged for murdering his mistress-Keep-Trial Court acquitting him on ground that evidence of complainant PW2 did not inspire confidence-High Court convicting on evidence of PW2 and other material-Appeal against to Supreme Court-Whether there is corroborative evidence to testimony of PW2? (Yes)-Can his evidence be discarded on ground of an interested witness? (No)-Whether presence of PW2 is doubtful as he did not interfere? (No)-Whether High Court exceeded its power by converting acquittal into conviction? (No)-Result-Appeal dismissed.
Held : It cannot be said that there is no corroboration of the testimony of PW2. There is sufficient corroboration in this case as is evident from the medical evidence showing the infliction of a number of injuries with the weapon of offence stated to have been used by the appellant. His appearance before the police with the dagger and the blood stained clothes fully corroborates the prosecution evidence. No doubt is left in our mind when in is proved that blood stained clothes and the weapon of offence had the same group of blood which was that of the deceased. The FIR has been lodged promptly with sufficient details. On appreciation of evidence, the High Court has assigned valid reasons for believing the testimony of PW2 and rightly held that the trial court had arrived at erroneous conclusions of fact and law. Merely because PW2 did not intervene at the time when the appellant was inflicting knife blows on the person of the deceased cannot be a ground to discard his testimony. Only because the eye-witness fails to intervene to save the deceased, cannot be made a ground to reject his testimony particularly when he is not asked as to what restrained or refrained him from intervening to save the deceased. In the instant case the nature of injuries inflicted on the person of the deceased and the weapon of offence he was having in his hand is indicative of the state of mind of PW2 which obviously prevented him from intervening. The non mentioning of the names of the people, stated to have gathered on the spot, in the FIR does not, in any way, help the defence in this case. No effort was made or suggestion given to any of the witness that besides PW2, Nayana (PW9), Shuruti (PW10) any other person had seen the occurrence or that the prosecution was unnecessarily suppressing the alleged independent evidence. The intimate relations between the deceased and the complainant on account of their relationship of landlady and tenant cannot be stretched to the extent of holding that PW2 was an interested witness in the case. The manner and the place where the occurrence had taken place unambiguously suggests that PW2 is the natural witness of the occurrence. Merely because Nayana (PW9) and Shuruti (PW10) were declared hostile would not render the evidence of PW2 inadmissible in view of the fact that he stands corroborated in material particulars by other evidence including the statement of PW7. The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. In view of the above, the High Court was justified in interfering in this case by setting aside the judgment of the trial court. We do not find any illegality or error of jurisdiction requiring our interference. There is no merit in the appeal which is accordingly dismissed. (Paras 7 to 13)

JUDGMENT

Sethi, J.-Actuated by jealousy, infuriated on account of self-conceived notions of her infidelity and demonstrating the possessive nature of his mistress-keep Ubadiben Bhurabhai, the appellant committed an unusually usual crime of her murder. To quench his thirst of anger, he sprinkled the blood of the deceased all around by piercing her body with the knife he possessed by inflicting as many as 35 injuries on her person. The trial court acquitted the appellant, apparently, on extraneous considerations and the appeal filed by the State was allowed vide the judgment impugned holding the appellant guilty for the offence of murder punishable under Section 302 of the Indian Penal Code and sentencing him to undergo life imprisonment. He was also found guilty for the commission of offence under Section 452 IPC but no separate sentence was awarded for that offence.

2. According to the prosecution, the deceased was a resident of Dadiapada, Navinagri where she had some houses. Complainant Saiyed Khan Majid Khan (PW2) had taken one of the houses on rent from her, as he wanted to start factory at Dadiapada. The deceased was residing in another house nearby the house leased out to the complainant (PW2). The appellant was stated to be the kept-husband of the deceased and both were living as husband and wife for the last 7-8 years. Two months prior to the date of occurrence, the appellant is alleged to have attempted to kill the deceased with an axe for which the deceased had filed a complaint before the police. On 7.8.1984 when PW2 was present at his house, the deceased went to his house and was sitting on the chair in front of the room of that house. Besides the complainant, two girls, namely, Nayana (PW9) and Shuruti (PW10) of that locality were also there sitting on the cart. The deceased was informing the complainant not to allow the accused-appellant to take away anything from that house on any pretext. At about 11.30 a.m. on that day accused came in the house leased out to PW2 and stood on the Otala and demanded his clothes from the deceased. When she told him that she was not having his clothes, he got excited, pulled out a dagger from his waist and gave a blow with that dagger on the stomach of the deceased while she was sitting on the chair. After receiving the injury the deceased fell down and started crying. The persuations of PW2 to stop the accused from committing the crime had no effect and he gave repeated blows of his dagger on the body of Ubadiben, with the result she received 35 injuries on various parts of her body. Her clothes were stained with blood and she died on the spot. The accused ran away with his dagger. Yusufkhan Nurkhan and Abdul Razzak Akbar, are stated to have seen the accused running away from the house of the complainant with dagger. The complainant (PW2) thereafter lodged the complaint Exhibit 8 before the police. After registration of the case, the police came on spot and drew the inquest Panchanama of the dead body of the deceased. Panchanama of the scene of occurrence and dead body was also prepared. Post-mortem of the deceased was conducted on the following day. According to the prosecution the accused himself appeared before the police on 8.8.1984 along with the weapon of offence which was seized in presence of two Panch witnesses. The appellant was arrested and his blood stained clothes and dagger were seized vide Panchanam Exhibit 21.

3. After completion of the usual investigation, the charge-sheet was filed in the court. During the trial, out of three eye-witnesses only PW2 supported the case of the prosecution. The two girls, namely, Nayana and Shuruti were declared hostile as they stated to have not seen the occurrence. In his statement, recorded under Section 313 Cr. P.C., the accused denied to have committed any offence. He submitted that he did not cause any injury to the deceased and was being falsely involved in the present case. No evidence was led in defence.

4. For acquitting the a

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2002 Supreme(SC) 278

IMPORTANT POINTHigh Court was justified in this case in setting aside order of acquittal of the Trial Court. There is no illegality or error of jurisdiction requiring interference by Apex Court.

IMPORTANT POINT
High Court was justified in this case in setting aside order of acquittal of the Trial Court. There is no illegality or error of jurisdiction requiring interference by Apex Court.