IMPORTANT POINT
Non-explanation of injuries on person of accused may assume importance where defence gives a version which competes in probability with that of the prosecution.

Headnote:(i) Criminal Procedure Code, 1973-Section 374-Appeal against acquittal-High Court convicted appellant u/s 302 IPC in appeal against acquittal-No embargo on appellate Court reviewing evidence upon which an order of acquittal was based-Paramount consideration of Court is to ensure that miscarriage of justice is prevented-Appellate Court is to interfere in appeal against acquittal only when there are compelling and substantial reasons to do so.
       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. (Para 9)
       (ii) Indian Penal Code, 1860-Section 302-Appellant with co-accused (since dead) fired gun shots on two victim deceased in a dispute over land and both victims died on spot-Non-explanation of injuries on the accused-Will not affect prosecution case where injuries sustained by accused were minor and superficial-Such a non-explanation may assume greater importance where defence gives a version which competes in probability with that of the prosecution-Trivial and superficial injuries on person of accused in the case in hand were of little assistance to throw doubt on veracity of prosecution case. (Para 13)
       (iii) CRIMINAL TRIAL-When oral evidence is credible and cogent, medical evidence is contrary is in consequential-Only when the medical evidence totally improbabilises oral evidence that adverse inference could be drawn. (Para 14)

JUDGMENT

Arijit Pasayat, J.-Acquittal of the appellant (hereinafter referred to as the accused ) by the trial court was reversed by the High Court by the impugned judgment. Three persons, namely, Akshay Kumar, Anil Kumar and Shiv Kumar faced trial for alleged commission of offence punishable under Sections 302 and 302 read with Section 34 of Indian Penal Code, 1860 (in short the IPC ).

2. Accusations which led to the trial of the accused persons are essentially as follows :

Goverdhan Lal son of Guljari Lal lodged first information report (hereinafter referred to as FIR) on 27.2.1980 at about 4.45 p.m. with the allegation that about 3.00 p.m. on the same date accused Akshay Kumar, Anil Kumar and Shiv Kumar came towards their house. Accused Shiv Kumar was driving a tractor while Akshay Kumar and Anil Kumar were sitting on the trolley of the tractor with double barrel gun in the hands of each of them. They wanted to take the tractor through the land of the complainant. In front of the house and the land of the complainant and his brothers, there is some open land. Gram Pradhan Akshay Kumar wanted to make path (Rasta) over the said land. He filed a case in the Munsif s court about 21-22 years ago for the said purpose. He won the case. The accused persons bore enmity for that reason. Before three years of the present occurrence accused Anil Kumar and Shiv Kumar went to the plot of the complainant and wanted to assault by fire. The complainant had lodged a report in the police station to this effect. On 27.2.1980 at about 3.00 p.m. Kunji Lal brother of the complainant and Kali Charan, nephew of the complainant (each of them described as "deceased" by name) were keeping potatoes in bags in the west of their house. They asked the accused persons that since there was no path in front of house of the complainant where they are taking the tractor. They stopped the tractor in front of the house of deceased Kunji Lal. Accused Shiv Kumar exhorted to kill them. On this Akshay Kumar and Anil Kumar got down from the tractor and started to abuse. Accused Anil Kumar fired the gun and the bullet hit Kunji Lal. Akshay Kumar fired the gun and the bullet hit Kali Charan and both of them died on the spot. The accused persons sat on their tractor and went towards their house proclaiming that if anybody tried to raise his head, he shall also be killed. The occurrence was said to have been seen by Kalloo son of Sukha, Ram Beti wife of Gokaran and Rakesh Kumar son of Siya Ram.

3. Rakesh Kumar has since died. Govardhan Lal, the complainant was examined as PW-1, Kallo as PW-2 and Ram Beti as PW-3.

4. In order to further its version the prosecution examined 6 witnesses. The accused persons pleaded innocence. The appellant took the plea that his driver Navin Chandra was driving the tractor to plough the field of one Virendra son of Onkar. Near the house of complainant, Kali Charan, Munshi Lal, Hari Shankar, Siyaram etc. emerged with lathies and country made pistols, stopped the tractor and threatened the driver and he cried out for help. Appellant Anil Kumar came along with licenced gun of his father to save them. When he reached near the tractor, Kali Charan and Kunji Lal fired at him as well as Navin Chandra. Both of them suffered fire-arm injuries. In self defence, he fired twice. He was medically examined and injuries were x-rayed.

5. Learned Sessions Judge came to the conclusion that it was amply clear that the occurrence took place at the time, place and date as claimed by the prosecution. But accused Anil Kumar and Shiv Kumar were incapable of committing any crime. Their presence at the spot appeared to be out of question in view of their age. Injuries on the accused were not explained and, therefore, the prosecution had not come to Court with clean hands. The first information report was ante-timed and there was no immediate motive for the crime. Accused Anil Kumar and Shiv Kumar did not play any active role in the commission of the offence. Though accus

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2004 Supreme(SC) 1087

IMPORTANT POINTNon-explanation of injuries on person of accused may assume importance where defence gives a version which competes in probability with that of the prosecution.

Cases Referred (14)

IMPORTANT POINT
Non-explanation of injuries on person of accused may assume importance where defence gives a version which competes in probability with that of the prosecution.