1998 Supreme(SC) 230

1998(2) Supreme 139
Supreme Court of India
(From Allahabad High Court)
G.T. Nanavati and S.S. Mohammed Quadri, JJ.
State of Uttar Prades
versus
Nahar Singh (Dead) & Ors. -Respondents
Criminal Appeal Nos. 273-76 of 1988
Decided on 18-2-1998
Counsel for the Parties :
For the Appellant : G.K. Mathur, Sr. Advocate, R.C. Verma, Advo­cate for A.S. Pundir, Advocate.
For the Respondents : C.D. Singh, M.P. Shorawala, Advocates.

Important Point
If on re-assessment of the evidence, the appellate Court comes to the conclusion that the guilt of the accused is established, the fact that the appeal is against the acquittal will be immaterial.

Headnote:(i) Criminal Procedure Code, 1973-Section 154-FIR-Evidence Act, 1872-Sections 138 r/w 146-Cross examination by accused-Indian Penal Code, 1860-Sections 302, 148, 449 and 201-Offences under-A2 and A6 con­victed by Sessions Court and sentenced to life imprisonment-In ap­peal, High Court acquitting them, inter alia, on ground of delay in filing FIR which remained unexplained-Occurrence at about 6.30 A.M.-FIR lodged at about 7 A.M. next day-Explanation given was that assailants left the place at about 5 A.M. and atmosphere there was awesome-This part of explanation was not cross examined by the ac­cused-Result-It remained unchallenged and ought to have been believed by High Court as a convincing explanation. (Paras 12 to 14)

       (ii) Criminal Procedure Code, 1973 - Section 154 - FIR - High Court regarding preparation of FIR in consultation with others-PW 1 (son) and PW 2 (Brother) of deceas­ed talked about giving the complaint and drafted the same-Whe­ther a ground to weaken the case of the prosecution? (No). (Para 15)

       (iii) Indian Penal Code, 1860-Sections 302, 148, 449 and 201-Offences under-No motive was assigned to A2 to join A1 for com­mission of offences-But participation of A2 was established by the eye witnesses-Effect-Absence of motive cannot be a ground to justify A2’s acquittal. (Para 16)

       (iv) Indian Penal Code, 1860-Sections 302, 148, 449 and 201-Offences under-Cr.P.C., 1973-Section 154-FIR-Investigation by two Investigation officers-High Court acquitting A2 and A6, inter alia, on ground that no weapon or role was assigned to them in FIR and that those facts were stated much later before Second Investigation offcers-FIR found to have assigned weapon and role to A2 and A6 without details-Whether can be a ground to reject the case of prosecution? (No). (Para 18)

       (v) Identification of Assailants-Question of sufficient light-Occur­rence at 6.30 P.M.-Day time was over and evening time had commenced-Assailants known to eye witnesses-Lantern light present-Can it be said that light was not sufficient to identify the assailants? (No). (Para 19)

       (vi) Criminal Procedure Code, 1973 - Section 378 - Appeal against acquittal-Interference Prin­ciples summarised and explained. (Paras 20 to 23)

       Held : If on re-assessment of the evidence, the appellate Court comes to the conclusion that the guilt of the accused is established, the fact that the appeal is against the acquittal will be immaterial. However, if two views are possible, the court, having regard to the basic principle that presumption of innocence of the accused gets strength­ened by the fact of his acquittal by court, should take the view that supports the acquittal of the accused. (Para 24)

       (vii) Criminal Procedure Code, 1973 - Section 378 - Appeal against acquittal of A1, A2 and A6 -A1 dying pending appeal-Appeal against him abated-Reasons given for acquittal of A2 and A6 were found erroneous-Result-Then acquit­tal set aside.

       Held : On careful reading of the evidence of PWs. 1, 2, 3 and 5, which was accepted by the High Court to record the finding that Ram Gopal, Vijay Pal Singh and Manpal were murdered on the evening of 4th Octo­ber, 1980, we are of the opinion that reasons given by the High Court to acquit A-2 and A-6 are hardly sufficient to justify interference with the well considered judgment of the trial Court finding them guilty of offences under Sections 302, 148, 449 and 201 IPC. (Para 11)

       Finally held : For the above reasons, we hold that the view of the evidence taken by the High Court is erroneous and that it misled itself in coming to the conclusion that the guilt of A-2 and A-6 was not established; we are of the view that prosecution has proved the guilt of the accused beyond any reasonable doubt. The trial Court was, therefore, right in convicting them and that the High Court was not justified in interfer­ing with the conviction and sentence of Shishupal Singh (A-2) and Ram Gopal (A-6) on grounds which are hardly sustainable in law. According­ly, judgment of the High Court dated October 3, 1985 in Criminal Appeal No. 1830 of 1994 is set aside, judgment of the trial Court dated 3rd July, 1984, insofar as it relates to A-2 and A-6, is re­stored and Shishupal Singh (A-2) and Ram Gopal (A-6) are directed to be taken into custody to serve their sentences. The appeals filed by the State against the said respondents (Res­pondents Nos. 2 and 3) are allowed, as indicated above, and they are dismis­sed against other respondents. (Para 24)