IMPORTANT POINT
In an appeal against acquittal, there is no embargo on appellate Court reviewing evidence but paramount consideration is to ensure that miscarriage of justice was prevented.

Headnote:(i) Criminal Procedure Code, 1973 -Section 379-High Court allowing appeal against conviction under Sections 307, 302/34 acquitted respondent accused-Appeal by informer complainant -Scope for interference-Paramount consideration of Court is to ensure that miscarriage of justice was prevented.
       Held : There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. [See Bhagwan Singh and Ors. v. State of Madhya Pradesh (2002(2) Supreme 567). The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973 SC 2622), Ramesh Babulal Doshi v. State of Gujarat (1996(4) Supreme 167), Jaswant Singh v. State of Haryana (2000 (3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors. (2003(7) Supreme 152), State of Punjab v. Karnail Singh (2003(5) Supreme 508 and State of Punjab v. Pohla Singh and Anr. (2003(7) Supreme 17). (Para 8)
       (ii) Indian Penal Code, 1860-Sections 307 and 302/34-Respondent accused fired gun shot at deceased who fell down and died-High Court directed acquittal holding that defence version was more probable-Appeal by complainant-Trial Court had discarded defence version highlighting unacceptability of prosecution version-Prosecution can succeed by substantially proving version it alleges and cannot take advantage of weakness in defence case-High Court noted medical evidence to be consistent with defence version that deceased was hit by gun shot accidentally in a scuffle between informant party and accused-Declaration made by deceased was not voluntary and statement could not be called a dying declaration-Acquittal could not be interfered with. (Para 9)

Judgement Key Points

Supreme Court appeal against Calcutta High Court's acquittal of respondent accused convicted by trial court under Sections 302, 307/34 IPC and Section 25 Arms Act for gun shot killing of deceased in family courtyard dispute. (!) [1000082960001]
Prosecution case: Accused parties conspired to erect fence in shared courtyard; when opposed by complainant party, accused Phani Pal fired gun from first-floor balcony targeting complainant then deceased sweeping courtyard, hitting her back; deceased identified shooter before dying; FIR lodged promptly. [1000082960001][1000082960004]
Defence version: Existing fence uprooted by complainant party; scuffle ensued on first floor where gun accidentally fired during struggle, hitting deceased at close range as she emerged from room; prosecution later varied stand to claim short-range firing. [1000082960002][1000082960003][1000082960004]
Trial court discarded defence, convicted accused Phani Pal; High Court acquitted, finding defence more probable due to medical evidence of close-range gunshot (tattooing/scorching inconsistent with prosecution's balcony firing), unreliable dying declaration (deceased affirmed husband's responses, not voluntary), and prosecution's mid-trial variation. (!) [1000082960004][1000082960008]
Appellate court in acquittal appeal has no restriction on reviewing evidence; acquittal strengthens innocence presumption; if two reasonable views possible, adopt accused-favourable one; interfere only for compelling/substantial reasons like unreasonableness or unjust elimination of convincing material; paramount duty to prevent miscarriage of justice (acquitting guilty as serious as convicting innocent); re-appreciate if admissible evidence ignored. [1000082960007]
Prosecution must prove its case substantially on own strength, cannot rely on defence weaknesses; court cannot invent new prosecution case; medical evidence supported defence accidental close-range shot in scuffle; dying declaration invalid as not voluntary (husband answered queries, deceased repeated). [1000082960008]
Supreme Court found no infirmity in High Court reasoning, upheld acquittal; appeal dismissed. [1000082960008][1000082960009] (!)

JUDGMENT

Arijit Pasayat, J.-This appeal has been filed questioning correctness of the judgment rendered by a Division Bench of the Calcutta High Court directing acquittal of the respondent No. 1 (hereinafter referred to as the accused ). The Additional Sessions Judge, 3rd Court, Midnapore, had found the accused guilty of offence punishable under Sections 302 and 307 of the Indian Penal Code, 1860 (for short the IPC ) and also Section 25 of the Arms Act, 1959 (for short the Arms Act ). Sentence of imprisonment for life, 7 years and one year respectively was awarded. Originally 5 accused persons were there, and each was charged for the commission of offence punishable under Sections 302, 307 read with Section 34, and 447 IPC. One Golok Pal died before charge sheet was filed. Similarly accused Narendera Patra died during trial and three persons namely accused appellant Phani, Niranjan Pal and Swaran Dutta faced trial. The trial Court found accused Niranjan Pal and Swaran Dutta to be not guilty. It was only the accused-respondent No. 1 who was found guilty and convicted as aforesaid.

2. Accusations which led to trial of the accused is as follows :

Information was lodged at the Binpur Police Station on 1.6.1977 about murderous assaults on one Midnap Bhanumati and infliction of serious injuries on others. Investigation was undertaken. It transpired during investigation that the accused persons and the complainant party being close relations have been residing in the same homestead with separate portions earmarked by mutual arrangement. Golok Pal was the eldest member of one branch and Brindaban Pal (PW-1) is the eldest member of the other branch, Golok Pal and Brindaban Pal being brothers to each other. On 1.6.1977 in the morning the accused persons conspired together to erect a fence inside the courtyard which they have been contemplating since a long time. They also conspired that if the complainant party caused obstruction they should be finished. At about 7.30 a.m. the party led by Golok Pal started digging holes in the midest of the inner courtyard of the house. Brindaban (PW-1) and his sons protested. At this Golok and Niranjan ordered to finish Brindaban Pal. At this stage, Niranjan Pal and accused Phani Pal rushed to the first floor of their house and Phani brought out the gun belonging to his father Golok, and Niranjan took out bows and arrows. They came on the balcony of the first floor room and accused Phani aimed at Brindaban. So did Niranjan with his bow and arrow. Neither the gunshot nor the arrow struck the target. Phani once again loaded the gun and fired another shot aiming at Bhanumati, wife of Brindaban Pal (hereinafter referred to as the deceased ), who was then engaged in sweeping the courtyard. The bullet struck on her back. She fell down. At this stage two sons of Brindaban, Suchand and Ratan, PWs 5 and 4 respectively together with Brindaban rushed out of the house and raised hue and cry. Before the villagers assembled, all except accused Phani, left the house. Phani was still standing on the balcony of the first floor room with the gun in his hand threatening the villagers with dire consequences in case they proceeded further. As the assemblage outside the house grew larger, accused Phani fled away and the villagers entered into the house. By that time Gouribala (PW-2), daughter of Brindaban, carried the injured body of Bhanumati on the verandah of their house from the courtyard. The villagers who assembled there found Bhanumati in injured condition and also heard from her that she was killed by gunshot made by accused Phani Pal. Brindaban rushed to the police station and lodged the F.I.R. at about 8.30 a.m. Police arrived at the spot and arranged for sending the injured Bhanumati to the local Binpur Primary Health Centre with the help of local Chowkidar. There deceased-Bhanumati made a dying declaration before the doctor who reduced the same into writing in the presence of Brindaban Pal. As the condition of

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2003 Supreme(SC) 1110

IMPORTANT POINTIn an appeal against acquittal, there is no embargo on appellate Court reviewing evidence but paramount consideration is to ensure that miscarriage of justice was prevented.

Cases Referred (7)

IMPORTANT POINT
In an appeal against acquittal, there is no embargo on appellate Court reviewing evidence but paramount consideration is to ensure that miscarriage of justice was prevented.