2006 Supreme(SC) 503

2006(4) Supreme 388
SUPREME COURT OF INDIA
(From Allahabad High Court)
S.B. Sinha & P.P. Naolekar, JJ.
Budh Singh and Ors.—Appellants
versus
State of U.P.—Respondent
Criminal Appeal No. 1123 of 1999
Decided on 12-5-2006
Counsel for the Parties :
For the Appellants : Sushil Kumar, Sr. Advocate, Vinay Arora, Adolf Mathew, Sanjay Jain and R.P. Wadhwani, Advocates.
For the Respondents : Pramod Swarup and Jatinder Kumar Bhatia, Advocates.

IMPORTANT POINT
High Court would not ordinarily set aside a judgment of acquittal in case where two views were possible, although the view of Appellate Court was a more probable one.

Headnote:Indian Penal Code, 1860—Sections 148, 302 and 307/149—Six accused-appellants acquitted by trial Court were convicted by High Court in appeal—There was dispute between parties over the agricultural land—Victims, both deceased, husband and wife were said to be irrigating their field at 9 P.M.—Appellant No. 1 armed with double barrel gun and other accused holding country made pistols arrived—PW2 and PW3 arrived at place of occurrence—Appellant No. 1 fired gun shot on deceased husband and A5 fired shot on the wife and A6 fired shot on PW1—Both deceased died on spot—Appeal—High Court would not ordinarily set aside a judgment of acquittal in case where two views were possible, although the view of appellate Court was a more probable one—There was delay of 5 days in FIR reaching Court—Medical evidence showed that direction of injury was from upward to downward which belied statement of prosecution witnesses that both victims were in standing position and were quarrelling with each other—Accused No. 6 was not carrying any weapon and no role was attributed to him and no reason why he was implicated—Investigating Officer who took over the investigation had not been examined—Trial Court having regard to facts and circumstances took a view that was a possible view—High Court was not correct in arriving a conclusion that view of trial Court was wholly perverse.

       Held : The Trial Court, as noticed hereinbefore, recorded a judgment of acquittal upon assigning several reasons. Before adverting to the rival contentions of the parties, it will be beneficial to remind ourselves about the established principles of law that the High Court does not ordinarily set aside a judgment of acquittal in case where two view are possible although, the view of the Appellate Court is a more probable one. It is, however, true that the High Court, while dealing with a judgment of acquittal, is free to consider the entire evidences on record so as to arrive at a finding as to whether the views of the Trial Judge is perverse or otherwise bad in law. The Appellate Court shall also be entitled to take into consideration as to whether in arriving at a finding of fact, the Trial Judge has failed to take into consideration admissible evidence and has taken into consideration evidences brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject matter of the scrutiny by the Appellate Court.(Para 9)

       It is not in dispute that the written report, although, is said to have been lodged at 00.25 hours on 13.4.1992, the same was received in the Court of the Judicial Magistrate as late as on 18.4.1992. The only explanation offered by P.W.5 was that although the same has been sent at 6.25 in the evening, it could not be sent directly, as in view of the provisions, the same was to be sent through the Circle Officer. The State has not offered any explanation as to why the Circle Officer, a post held by an officer of the rank of Deputy Superintendent of Police, would not act responsibly. Section 157 Cr. P.C. as also Article 21 of the Constitution of India provide for a safeguard in such a manner directing that FIR should be sent to the Court of Chief Justice Magistrate within a period of 24 hours.(Para 15)

       The prosecution witnesses, namely, P.Ws. 1, 2 and 3 further stated that the appellants and the deceased had been standing. According to them, only appellant No.1 fired one shot. From the medical evidence, however, it appears that the direction of injury was from upwards to downwards, which belies the statement of the prosecution witnesses that both of them were in standing position and in fact, were quarrelling with each other. The opinion of the doctor is that at the time of firing Ram Gopal must have been lying down and the firing must have been done from a distance, which would mean from a higher level. In view of the nature of injuries suffered by Ram Gopal, such firing was possible from a distance of 40 to 45 feet and not from a close range. He did not find any charring, bleeding and tattooing marks. Furthermore, the margin of injury was found to be inverted. No corresponding exit wound of the bullet was found. Even so far the injuries found on left thigh and right thigh are concerned, the same were inverted in nature. The reasons assigned by the learned Trial Judge in this behalf, thus, cannot be said to be perverse.(Para 35)

       We may notice that admittedly the accused No.6 was not carrying any weapon. He admittedly had a dispute with Veer Singh. Veer Singh accompanied the complainant to the police station. No role had been attributed to the said accused. It is not clear as to why he was implicated. He did not have any disputed with the deceased, namely, Ram Gopal and Chatarvati. The prosecution did not lead any evidence as to why he would join the appellant Nos. 1 and 2 in commission of the crime. Similarly, appellant Nos. 3 and 4 were cousins. Except making a statement that they had been carrying some country made pistols and fired from their respective weapons, no evidence has been brought on record to that effect. We also fail to understand as to why the Investigating Officer, who took over the investigation from P.W.7 and who had investigated only for 8 days, had not been examined. No explanation whatsoever has been offered by the prosecution in this regard. (Para 45)

       The version of the prosecution is that the lands belonging to P.Ws. 2 and 3 were half a kilometer away and they do not have any field near the field of the deceased. There was no standing crops in the field. The view of the Trial Court, having regard to the aforementioned facts and circumstances of the case, was, therefore, a possible view and as such we need not go into the other contentions as regard the motive or time of death, vis-a-vis, the medical opinion etc.(Para 46)

       For the reasons mentioned hereinbefore, we are of the opinion that the High Court was not correct in arriving at the conclusion that the view of the Trial Court was wholly perverse and could not be sustained on the materials brought on record by the prosecution.(Para 47)