GURU DUTT PATHAK versus STATE OF UTTAR PRADESH on 6 May 2021

[2021] 6 S.C.R. 573

GURU DUTT PATHAK

v.

STATE OF UTTAR PRADESH

(Criminal Appeal No. 502 of 2015)

MAY 06, 2021

[DR. DHANANJAYA Y CHANDRACHUD AND

M. R. SHAH, JJ.]

Penal Code, 1860: ss. 302/34 – Four accused – Acquittal byTrial Court – During pendency of State’s appeal before High Court,accused no. 1 to 3 died – Reversal of acquittal of fourth accusedby High Court – Appeal against conviction – Held: Prosecutionwitnesses fully supported the case of prosecution – It was establishedand proved by prosecution by leading evidence that the incidenthad taken place on the road near Primary Pathshala – The deadbody was recovered from the road near the Pathshala and bloodstained clothes were also recovered from that place – Thusprosecution proved the place of incident as stated in the FIR – PW-4 was eye-witness – He was found to be trustworthy and reliable –In view of clinching evidence of eyewitnesses, mere non-examinationof some of the witnesses/independent witnesses and/or in absenceof examination of any independent witnesses would not be fatal toprosecution case – Appellant-accused no. 4 was named right fromthe beginning in the FIR – He was attributed specific role – Thesame was established and proved from the evidence of PW-4 – Inthe facts and circumstances of the case, and on re-appreciation ofthe evidence, High Court came to conclusion that findings recordedby trial court while acquitting the accused were perverse and evencontrary to the evidence on record and/or misreading of the evidence– No reason to interfere with the order of High Court.

Dismissing the appeal, the Court

HELD: 1. Each and every ground on which trial courtacquitted the accused has been elaborately dealt with by the HighCourt and on reappreciation of the entire evidence on record theHigh Court specifically came to the conclusion that the findingsrecorded by the trial Court were perverse and thereafter the

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AHigh Court interfered with the judgment and order of acquittalpassed by the trial Court. The High Court rightly observed thatwhen there is a direct evidence in the form of eyewitnesses andthe eyewitnesses are trustworthy and reliable, absence of motiveis insignificant. In the present case, in the 313 statement itself,the appellant- original accused no.4 also stated that there was anBenmity. Therefore, even according to the accused also, there wasan enmity. [Paras 8 and 9][592-D-F]

Manjit Singh v. State of Punjab (2019) 8 SCC 529 :[2019] 11 SCR 554; Surinder Kumar v. State of Punjab(2020) 2 SCC 563 : [2020] 1 SCR 307; Rizwan KhanCv. State of Chhattisgarh (2020) 9 SCC 627; State ofH.P. v. Pardeep Kumar (2018) 13 SCC 808 : [2018]2 SCR 656 – relied on.

2.1 The prosecution witnesses fully supported the case ofthe prosecution, more particularly PW2 & PW4 and they are foundDto be trustworthy and reliable, non-examination of theindependent witnesses is not fatal to the case of the prosecution.Nothing is on record that those two persons, as mentioned in theFIR reached the spot were mentioned as witnesses in thechargesheet. In any case, PW2 & PW4 fully supported the caseEof the prosecution and therefore non-examination of the aforesaidtwo persons shall not be fatal to the case of the prosecution. [Para11][593-D-F]

Dashrath Singh v. State of U.P. (2004) 7 SCC 408 :[ 2004] 3 Suppl. SCR 561; Takhaji Hiraji v. ThakoreFKubersing Chamansing (2001) 6 SCC 145 – referredto.

2.2 The investigating officer -PW7 in his examination-in-chief specifically stated that when they tried to arrest the saidaccused at 4:00 a.m. in the early morning near the bridge, theGsaid accused tried to run away; after scuffle he was arrested andthat during that scuffle and arrest, he sustained injuries. Asuggestion was put to him in the cross-examination that at thetime of arrest the accused ‘M’ did not receive any injury, however,the same has been specifically denied that it is not true that he H

did not receive injury at the time of his arrest. Similar suggestionswere made to other witnesses and the same were denied.Therefore, as such, it cannot be said that the prosecution failedto explain the injury on the said accused. Even the aforesaidaspect was considered in detail by the High Court and the saidstatement was appreciated by the High Court on re-appreciatingthe entire evidence on record, more particularly the medicalevidence and even the deposition of the doctors examined bythe prosecution as well as by the defence. [Para 12][593-G-H;594-A-B]

3.1 The place of occurrence of the incident has beenestablished and proved by the prosecution as per the case of theprosecution. The accused have failed to lead any evidence thatthe incident had occurred near the door of the house of one ofthe accused. Even the place of incident suggested by the accused,if the Panchnama is concerned, it does not support the case ofthe defence. The aforesaid aspect has been elaborately dealt withby the High Court in the impugned judgment. It was establishedand proved by the prosecution by leading the evidence that theincident had taken place on the road near Primary Pathshala. Thedead body was recovered from the road near Primary Pathshalaand the blood stained Gamchha and tahmad were also recoveredfrom that place. On the point of place of recovery of the deadbody and recovery of the blood stained etc. is unchallenged.Therefore, the prosecution has proved the place of incident asstated in the FIR. [Para 13][596-A-D]

3.2 Now so far as one another ground assigned by the trialCourt while acquitting the accused that there was no firearm injuryon the person of the deceased and therefore the medical evidenceis inconsistent with the ocular testimony is concerned, it isrequired to be noted that it was never the case of the prosecutionthat there was a firearm injury on the person of the deceased.Even as per the evidence of the witnesses, when after sustainingthe injuries of lathi and spear, the deceased fell down on the earthwhen other persons started coming and while leaving from thatplace, one of the accused Ramraj Pathak fired his pistol towardsthe deceased. It was never the case of the witnesses that bullethit the deceased. On the contrary, PW2 has specifically stated AB

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Athat the deceased has not sustained any firearm injury, althoughRamraj Pathak has fired at him. The depositions of PW2 & PW4who can be said to be the star witnesses and they are theeyewitnesses to the incident. PW-4 is found to be trustworthyand reliable. His deposition is consistent with the allegations inthe FIR. There is no reason to doubt his trustworthiness.BTherefore, even the appellant can be and is rightly convictedrelying upon the deposition of PW4, who is an eyewitness to theincident. The appellant – original accused no.4 was specificallynamed right from the very beginning in the FIR. He has beenattributed the specific role. The same has been established andCproved from the evidence of PW4. No error has been committedby the High Court in interfering with the judgment and order ofacquittal passed by the trial Court. [Paras 14, 15, 17][596-E-H;597-C, H; 598-A]

Umedbhai Jadavbhai v. State of Gujarat (1978) 1 SCCD228 : [1978] 2 SCR 471; Babu v. State of Kerala (2010)9 SCC 189 : [2010] 9 SCR 1039; Kuldeep Singh v.Commissioner of Police (1999) 2 SCC 10 : [1998]3 Suppl. SCR 594; Vijay Mohan Singh v. State ofKarnataka (2019) 5 SCC 436 : [2019] 6 SCR 994; Atleyv. State of Uttar Pradesh AIR 1955 SC 807; K.GopalEReddy v. State of Andhra Pradesh (1979) 1 SCC 355 :[1979] 2 SCR 363 – referred to.

CRIMINAL APPELLATE JURISDICTION : Criminal AppealNo. 502 of 2015.

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From the Judgment and Order dated 16.01.2014 of the High Courtof Judicature at Allahabad in Appeal No.2895 of 1982.

Siddharth Dave, Sr. Adv., Ashutosh Kumar Sharma, Adv. for theappellant.

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Ardhendumauli Kumar Prasad, Vikas Bansal, Advs. for therespondent.

The Judgment of the Court was delivered by

M. R. SHAH, J.

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1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 16.01.2014 passed by the High Court of Judicature atAllahabad in Government Appeal No. 2895 of 1982, by which the HighCourt has allowed the said appeal preferred by the State and has reversedthe judgment and order of acquittal passed by the learned trial Courtacquitting the accused for the offences punishable under Section 302 r/w 34 of the IPC and consequently has convicted the appellant – originalaccused no.4 for the aforesaid offences, the original accused no.4 haspreferred the present appeal.

2. That as per the case of the prosecution the deceased was thePradhan of the village for more than two decades. The accused werehaving grudge against him. On 6.10.1981 at about 7:00 a.m., the deceasedwas going, as usual, to attend the call of nature towards the bank of riverYamuna situated near his village. When the deceased reached near BasicSchool, Nagarwar, all the four accused suddenly emerged out from theBajra field of Ram Sajiwan. Accused Murlidhar Pathak and GuruduttPathak were armed with lathis, Dharmraj Pathak was armed with spearand Ramraj Pathak was armed with pistol. The deceased was attackedby the accused with spear and lathis. The deceased fell down on earth.They crushed his head with lathis. On hue and cry, first informantSatrughan Pathak, his brother Ramsukh Pathak, Lalmani Pathak andShiv Shankar, who were already there at a short distance, rushed towards F

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Athe deceased whereupon accused Ramraj Pathak fired a shot from hispistol towards the deceased and all the assailants ran away along withtheir weapons. The deceased received his instantaneous death at thespot.

2.1 Satrughan Pathak, son of the deceased, lodged an FIR againstBall the accused persons for the offences punishable under Section 302 r/w 34 IPC. The FIR was investigated by one Sukhram Sonkar, theInvestigating Officer. He recorded the statements of the witnesses. Heprepared the Panchnama at the spot. He arrested the accused MurlidharPathak on 07.10.1981 at about 4:00 a.m. after a little chase and duringthe course of his arrest police personnel inflicted injuries at his personCnear bridge of river Fagawa.2.2 Dr. Nisar Ahmad conducted the post-mortem. He noticed thefollowing ante-mortem injuries on the body of the deceased:

i)Depressed fracture of skull with fracture of left parietalbone. In fact all the bones were broken. Brain matter hadDbeen liquefied.

ii)Multiple abrasion on left pinna.

iii)Incised wound over the scalp 5 inch above ear T.U. directed,2 inch x 2 inch. Brain matter going out.

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iv)Lacerated wound above the occipital, 2 inch x 2 inch. Brainmatter going out.

v)Incised wound over the left occiput, 2 inch x 1 inch.

vi)Incised wound over lateral aspect of palm, 1 inch x 1 inch xFmuscle deep.

vii)Lacerated wound on the posterior aspect of skull, 1 inch x1 inch x muscle deep.

viii)Incised wound over the proximal of the occipital.

Gix)Incised wound over the left parietal bone, 1 inch x 1 inch xbrain cavity deep with brain matter going out.

x)Incised wound over the parietal bone, 1 inch x 1 inch. Brainmatter was going out.

xi)Incised wound over the frontal bone, 1 inch x 1 inch. BrainHmatter going out.

As per the post-mortem report, the cause of the death was dueto shock and haemorrhage as a result of the aforesaid injuries.

2.3 On completion of the investigation, the Investigating Officerfiled the chargesheet against Murlidhar Pathak and three abscondedaccused. That after the remaining persons came to be arrested, as thecase was triable exclusively by the Court of Sessions, the learned ChiefJudicial Magistrate committed the case to the Court of Sessions. All theaccused were charged for the offences punishable under Section 302/34 IPC for the murder of the deceased-Ram Aasare Pathak. All theaccused denied the charges and therefore they came to be tried for theaforesaid offences.

2.4 To prove the case, the prosecution examined as many as eightwitnesses. PW2 and PW4 were the eyewitnesses and PW7 was theInvestigating Officer. At the end of the trial, the learned trial Courtacquitted all the accused persons mainly on the grounds that PW1 toPW4 – eyewitnesses were related and interested witnesses; noindependent witness has been examined; PW2 and PW4, sons of thedeceased may be termed as chance witnesses; place of occurrence isnot proved by the prosecution and there was no occasion for the deceasedto reach at the alleged spot; absence of fire injuries at the person of thedeceased; and prosecution has not explained the injuries on the accusedMurlidhar Pathak.

3. Feeling aggrieved and dissatisfied with the order of acquittalpassed by the learned trial Court, the State preferred appeal before theHigh Court. During the pendency of the appeal, accused nos. 1 to 3died/expired and therefore the appeal against the appellant herein –original accused no.4 was proceeded further. That on re-appreciation ofthe entire evidence on record, by the impugned judgment and order, theHigh Court has allowed the appeal and has set aside the order of acquittalpassed by the learned trial Court and consequently has convicted theappellant herein – original accused no.4 for the offences under Section302/34 IPC and has sentenced him to undergo life imprisonment.

4. Feeling aggrieved and dissatisfied by the impugned judgmentand order passed by the High Court reversing the order of acquittal andconvicting the appellant – original accused no.4 for the offences underSection 302/34 IPC, original accused no.4 has preferred the presentappeal.

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A5. Learned Advocate appearing on behalf of the appellant hasmade the following submissions:

i)that the High Court has exceeded in its jurisdiction inreversing the well-reasoned judgment and order of acquittalpassed by the learned trial Court and consequentlyBconvicting the accused;

ii)that the learned trial Court, as such, committed no error inacquitting the accused;

iii)that the motive has not been established and proved;

iv)that all the prosecution witnesses – so called eyewitnesses– PW1 to PW4 are all related and interested witnesses; C

v)that no independent witness has been examined;

vi)that as rightly observed by the learned trial Court, PW2 &PW4 are the chance witnesses; D

vii)that from the medical evidence there is no injury found fromthe fired arm and therefore it disproves the case of theprosecution;

viii)that the prosecution has failed to explain the injury on oneof the accused – Murlidhar Pathak; E

ix)that the medical evidence does not support the case of theprosecution’

x)that the FIR was ante-dated’ and

xi)that the prosecution has failed to prove the exact place ofFthe occurrence of the incident.

5.1 Learned counsel appearing on behalf of the appellant hassubmitted that as per catena of decisions of this Court when two viewsare possible and an order of acquittal passed by the learned trial Court isbased on appreciation of evidence on record, the High Court shall notGinterfere with such an order of acquittal. It is submitted that in the presentcase the High Court has reversed the order of acquittal in an appealunder Section 378 Cr.P.C. and has exercised the powers/jurisdictionbeyond the scope of Section 378 Cr.P.C.

5.2 Making the above submissions, it is prayed to allow the presentHappeal and set aside the impugned judgment and order passed by the High Court and restore the well-reasoned judgment and order of acquittalpassed by the learned trial Court.

6. The present appeal is vehemently opposed by the learnedStanding Counsel appearing on behalf of the respondent – State of UttarPradesh.

Learned counsel appearing on behalf of the State has vehementlysubmitted that in the facts and circumstances of the case, the High Courthas not committed any error in reversing the judgment and order ofacquittal and consequently convicting the accused.

6.1 It is submitted that being the first appellate court against thejudgment and order of acquittal passed by the learned trial Court, theHigh Court is justified in reappreciating the entire evidence on recordand coming to its conclusion. Reliance is placed on the decision of thisCourt in the case of Umedbhai Jadavbhai v. State of Gujarat (1978)1 SCC 228.

6.2 It is submitted that by the impugned judgment and order theHigh Court has considered in detail the grounds on which the learnedtrial Court acquitted the accused and having found that the grounds onwhich the accused have been acquitted are not tenable at law and arejust contrary to the evidence on record and are perverse, the High Courthas rightly convicted the accused.

6.3 It is further submitted that in the present case the prosecutionhas established and proved the actual place of incident/occurrence andhas explained the injuries on one of the accused – Murlidhar Pathak.

6.4 It is submitted that even in the 313 statement, the appellant –original accused no.4 has also stated about the enmity. It is submittedthat therefore even according to the appellant – original accused no.4,there was an enmity between the deceased and the accused.

6.5 It is further submitted that one of the grounds on which thelearned trial Court acquitted the accused was that no independent witnesshas been examined. It is submitted that when the witnesses who areexamined are found to be reliable and trustworthy, mere non-examinationof the independent witnesses shall not be fatal to the case of theprosecution.

6.6 It is further submitted that one another reason given by thelearned trial Court which has been elaborately dealt with by the High A

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ACourt was that neither there was any firearm injury nor the firearm wasrecovered. It is submitted that in the deposition of the eyewitnesses ithas come on record that as per the case of the prosecution there was afire shot but it was in air and no injury was sustained by the firearm.

6.7 It is submitted that in the present case the eyewitnesses PW2B& PW4 have fully supported the case of the prosecution and thereforethe High Court has rightly convicted the accused.

7. We have heard the learned counsel for the respective partiesat length. We have gone through and considered in detail the judgmentand order of acquittal passed by the learned trial Court as well as theimpugned judgment and order passed by the High Court reversing theCacquittal and convicting the accused, to satisfy ourselves whether in thefacts and circumstances of the case, the High Court is justified in reversingthe judgment and order of acquittal passed by the learned trial Court andconsequently convicting the accused.

7.1 We are conscious of the fact that this is a case of reversal ofDacquittal by the High Court. Therefore, the first and foremost thing whichis required to be considered is, whether in the facts and circumstancesof the case, the High Court is justified in interfering with the order ofacquittal passed by the learned trial Court?

7.2 In the case of Babu v. State of Kerala (2010) 9 SCC 189,Ethis Court has reiterated the principles to be followed in an appeal againstacquittal under Section 378 Cr.P.C. In paragraphs 12 to 19, it is observedand held as under:

“12. This Court time and again has laid down the guidelines forthe High Court to interfere with the judgment and order of acquittalFpassed by the trial court. The appellate court should not ordinarilyset aside a judgment of acquittal in a case where two views arepossible, though the view of the appellate court may be the moreprobable one. While dealing with a judgment of acquittal, theappellate court has to consider the entire evidence on record, soas to arrive at a finding as to whether the views of the trial courtGwere perverse or otherwise unsustainable. The appellate court isentitled to consider whether in arriving at a finding of fact, thetrial court had failed to take into consideration admissible evidenceand/or had taken into consideration the evidence brought on recordcontrary to law. Similarly, wrong placing of burden of proof mayalso be a subject-matter of scrutiny by the appellate court. (VideH

Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missirv. State of Bihar (1990) 4 SCC 17,Shailendra Pratap v. Stateof U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P(2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulveluv. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. Stateof A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010)2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, thePrivy Council observed as under: (IA p. 404)

“… the High Court should and will always give proper weight andconsideration to such matters as (1) the views of the trial Judgeas to the credibility of the witnesses; (2) the presumption ofinnocence in favour of the accused, a presumption certainly notweakened by the fact that he has been acquitted at his trial; (3)the right of the accused to the benefit of any doubt; and (4) theslowness of an appellate court in disturbing a finding of fact arrivedat by a Judge who had the advantage of seeing the witnesses.”

14. The aforesaid principle of law has consistently been followedby this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1,Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G.Agarwal v. State of Maharashtra AIR 1963 SC 200, KheduMohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State ofM.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran(2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,this Court reiterated the legal position as under: (SCC p. 432, para42)

“(1) An appellate court has full power to review, reappreciateand reconsider the evidence upon which the order of acquittal isfounded.

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and an appellatecourt on the evidence before it may reach its own conclusion,both on questions of fact and of law.

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(3) Various expressions, such as, ‘substantial and compellingreasons’, ‘good and sufficient grounds’, ‘very strongcircumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc.are not intended to curtail extensive powers of an appellate courtin an appeal against acquittal. Such phraseologies are more in thenature of ‘flourishes of language’ to emphasise the reluctance ofan appellate court to interfere with acquittal than to curtail thepower of the court to review the evidence and to come to its ownconclusion.

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(4) An appellate court, however, must bear in mind that in case ofacquittal, there is double presumption in favour of the accused.CFirstly, the presumption of innocence is available to him underthe fundamental principle of criminal jurisprudence that everyperson shall be presumed to be innocent unless he is proved guiltyby a competent court of law. Secondly, the accused having securedhis acquittal, the presumption of his innocence is further reinforced,Dreaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of theevidence on record, the appellate court should not disturb the findingof acquittal recorded by the trial court.”

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, thisECourt reiterated the said view, observing that the appellate courtin dealing with the cases in which the trial courts have acquittedthe accused, should bear in mind that the trial court’s acquittalbolsters the presumption that he is innocent. The appellate courtmust give due weight and consideration to the decision of the trialFcourt as the trial court had the distinct advantage of watching thedemeanour of the witnesses, and was in a better position toevaluate the credibility of the witnesses.

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17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, theCourt again examined the earlier judgments of this Court and laiddown that: (SCC p. 374, para 20)

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“20. … an order of acquittal should not be lightly interfered witheven if the court believes that there is some evidence pointing outthe finger towards the accused.”

18. In State of U.P. v. Banne (2009) 4 SCC 271, this CourtHgave certain illustrative circumstances in which the Court would be justified in interfering with a judgment of acquittal by the HighCourt. The circumstances include: (SCC p. 286, para 28)

“(i) The High Court’s decision is based on totally erroneous viewof law by ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence anddocuments on record;

(iii) The entire approach of the High Court in dealing with theevidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust andunreasonable based on erroneous law and facts on the record ofthe case;

(v) This Court must always give proper weight and considerationto the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with acase when both the Sessions Court and the High Court haverecorded an order of acquittal.”

A similar view has been reiterated by this Court in Dhanapal v.State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effectthat in exceptional cases where there are compellingcircumstances, and the judgment under appeal is found to beperverse, the appellate court can interfere with the order ofacquittal. The appellate court should bear in mind the presumptionof innocence of the accused and further that the trial court’sacquittal bolsters the presumption of his innocence. Interferencein a routine manner where the other view is possible should beavoided, unless there are good reasons for interference.”

7.2.1 When the findings of fact recorded by a court can be held tobe perverse has been dealt with and considered in paragraph 20 of theaforesaid decision, which reads as under:

“20. The findings of fact recorded by a court can be held to beperverse if the findings have been arrived at by ignoring orexcluding relevant material or by taking into considerationirrelevant/inadmissible material. The finding may also be said to A

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Abe perverse if it is “against the weight of evidence”, or if thefinding so outrageously defies logic as to suffer from the vice ofirrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)4 SCC 635, Excise and Taxation Officer-cum-AssessingAuthority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, TriveniRubber & Plastics v. CCE 1994 Supp. (3) SCC 665, GayaBDin v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State(2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. Stateof A.P (2009) 10 SCC 636).”

C7.2.2 It is further observed, after following the decision of thisCourt in the case of Kuldeep Singh v. Commissioner of Police (1999)2 SCC 10, that if a decision is arrived at on the basis of no evidence orthoroughly unreliable evidence and no reasonable person would act uponit, the order would be perverse. But if there is some evidence on recordwhich is acceptable and which could be relied upon, the conclusionsDwould not be treated as perverse and the findings would not be interferedwith.

7.3 In the decision of this Court in the case of Vijay MohanSingh v. State of Karnataka (2019) 5 SCC 436, this Court again hadan occasion to consider the scope of Section 378 Cr.P.C. and theEinterference by the High Court in an appeal against acquittal. This Courtconsidered catena of decisions of this Court right from 1952 onwards.In paragraph 31, it is observed and held as under:

“31. An identical question came to be considered before this Courtin Umedbhai Jadavbhai (1978) 1 SCC 228. In the case beforeFthis Court, the High Court interfered with the order of acquittalpassed by the learned trial court on re-appreciation of the entireevidence on record. However, the High Court, while reversingthe acquittal, did not consider the reasons given by the learnedtrial court while acquitting the accused. Confirming the judgmentGof the High Court, this Court observed and held in para 10 asunder: (SCC p. 233)

“10. Once the appeal was rightly entertained against the orderof acquittal, the High Court was entitled to reappreciate theentire evidence independently and come to its own conclusion.Ordinarily, the High Court would give due importance to the H

opinion of the Sessions Judge if the same were arrived at afterproper appreciation of the evidence. This rule will not beapplicable in the present case where the Sessions Judge hasmade an absolutely wrong assumption of a very material andclinching aspect in the peculiar circumstances of the case.”

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, theHigh Court reversed the order of acquittal passed by the learnedtrial court and held the accused guilty on re-appreciation of theentire evidence on record, however, the High Court did not recordits conclusion on the question whether the approach of the trialcourt in dealing with the evidence was patently illegal or theconclusions arrived at by it were wholly untenable. Confirmingthe order passed by the High Court convicting the accused onreversal of the acquittal passed by the learned trial court, afterbeing satisfied that the order of acquittal passed by the learnedtrial court was perverse and suffered from infirmities, this Courtdeclined to interfere with the order of conviction passed by theHigh Court. While confirming the order of conviction passed bythe High Court, this Court observed in para 8 as under: (SCC p.416)

“8. We have perused the judgment under appeal to ascertainwhether the High Court has conformed to the aforementionedprinciples. We find that the High Court has not strictly proceededin the manner laid down by this Court in Ramesh Babulal Doshiv. State of Gujarat (1996) 9 SCC 225 viz. first recording itsconclusion on the question whether the approach of the trialcourt in dealing with the evidence was patently illegal or theconclusions arrived at by it were wholly untenable, which alonewill justify interference in an order of acquittal though the HighCourt has rendered a well-considered judgment duly meetingall the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment underappeal? We think, not. In our view, in such a case, the approachof the court which is considering the validity of the judgmentof an appellate court which has reversed the order of acquittalpassed by the trial court, should be to satisfy itself if theapproach of the trial court in dealing with the evidence waspatently illegal or conclusions arrived at by it are demonstrably A

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unsustainable and whether the judgment of the appellate courtis free from those infirmities; if so to hold that the trial courtjudgment warranted interference. In such a case, there isobviously no reason why the appellate court’s judgment shouldbe disturbed. But if on the other hand the court comes to theconclusion that the judgment of the trial court does not sufferfrom any infirmity, it cannot but be held that the interferenceby the appellate court in the order of acquittal was not justified;then in such a case the judgment of the appellate court has tobe set aside as of the two reasonable views, the one in supportof the acquittal alone has to stand. Having regard to the abovediscussion, we shall proceed to examine the judgment of thetrial court in this case.”

31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999)3 SCC 309, after observing that though there is some substancein the grievance of the learned counsel appearing on behalf of theaccused that the High Court has not adverted to all the reasonsgiven by the trial Judge for according an order of acquittal, thisCourt refused to set aside the order of conviction passed by theHigh Court after having found that the approach of the SessionsJudge in recording the order of acquittal was not proper and theconclusion arrived at by the learned Sessions Judge on severalaspects was unsustainable. This Court further observed that asthe Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court,therefore, was fully entitled to reappreciate the evidence andrecord its own conclusion. This Court scrutinised the evidence of

the eyewitnesses and opined that reasons adduced by the trialcourt for discarding the testimony of the eyewitnesses were notat all sound. This Court also observed that as the evaluation of theevidence made by the trial court was manifestly erroneous andtherefore it was the duty of the High Court to interfere with anorder of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, thisCourt observed and held as under: (AIR pp. 809-10)

“5. It has been argued by the learned counsel for the appellantthat the judgment of the trial court being one of acquittal, the HighCourt should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to theconclusion that the judgment of the trial Judge was perverse. Inour opinion, it is not correct to say that unless the appellate courtin an appeal under Section 417 CrPC came to the conclusion thatthe judgment of acquittal under appeal was perverse it could notset aside that order.

It has been laid down by this Court that it is open to the HighCourt on an appeal against an order of acquittal to review theentire evidence and to come to its own conclusion, of course,keeping in view the well-established rule that the presumption ofinnocence of the accused is not weakened but strengthened bythe judgment of acquittal passed by the trial court which had theadvantage of observing the demeanour of witnesses whoseevidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powersof appreciation of evidence in an appeal against an order ofacquittal as in the case of an appeal against an order of conviction,subject to the riders that the presumption of innocence with whichthe accused person starts in the trial court continues even up tothe appellate stage and that the appellate court should attach dueweight to the opinion of the trial court which recorded the orderof acquittal.

If the appellate court reviews the evidence, keeping thoseprinciples in mind, and comes to a contrary conclusion, the judgmentcannot be said to have been vitiated. (See in this connection thevery cases cited at the Bar, namely, Surajpal Singh v. State AIR1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122)In our opinion, there is no substance in the contention raised onbehalf of the appellant that the High Court was not justified inreviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355,this Court has observed that where the trial court allows itself tobe beset with fanciful doubts, rejects creditworthy evidence forslender reasons and takes a view of the evidence which is butbarely possible, it is the obvious duty of the High Court to interferein the interest of justice, lest the administration of justice be broughtto ridicule.”

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7.4 In the case of Umedbhai Jadavbhai (supra), in paragraph10, it is observed and held as under:

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“10. Once the appeal was rightly entertained against the order ofacquittal, the High Court was entitled to re-appreciate the entireevidence independently and come to its own conclusion. Ordinarily,the High Court would give due importance to the opinion of theSessions Judge if the same were arrived at after properappreciation of the evidence. This rule will not be applicable inthe present case where the Sessions Judge has made an absolutelywrong assumption of a very material and clinching aspect in thepeculiar circumstances of the case.”

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7.5 In the case of Atley v. State of Uttar Pradesh AIR 1955 SC807, this Court has observed and held as under:

“5. It has been argued by the learned counsel for the appellantthat the judgment of the trial court being one of acquittal, the HighCourt should not have set it aside on mere appreciation of theevidence led on behalf of the prosecution unless it came to theconclusion that the judgment of the trial Judge was perverse. InOur opinion, it is not correct to say that unless the appellate courtin an appeal under Section 417, Criminal P. C. came to theconclusion that the judgment of acquittal under appeal was perverseit could not set aside that order.

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It has been laid down by this Court that it is open to the HighCourt on an appeal against an order of acquittal to review theentire evidence and to come to its own conclusion, of course,keeping in view the well established rule that the presumption ofFinnocence of the accused is not weakened but strengthened bythe judgment of acquittal passed by the trial court which had theadvantage of observing the demeanour of witnesses whoseevidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powersof appreciation of evidence in an appeal against an order ofGacquittal as in the case of an appeal against an order of conviction,subject to the riders that the presumption of innocence with whichthe accused person starts in the trial court continues even up tothe appellate stage and that the appellate court should attach dueweight to the opinion of the trial court which recorded the orderHof acquittal.

If the appellate court reviews the evidence, keeping thoseprinciples in mind, and comes to a contrary conclusion, the judgmentcannot be said to have been vitiated. (See in this connection thevery cases cited at the Bar, namely, Surajpal Singh v. The State1952 CriLJ331; Wilayat Khan v. State of Uttar Pradesh, AIR1953 SC 122. In our opinion, there is no substance in the contentionraised on behalf of the appellant that the High Court was notjustified in reviewing the entire evidence and coming to its ownconclusions.”

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7.6 In the case of K.Gopal Reddy v. State of Andhra Pradesh(1979) 1 SCC 355, this Court has observed that where the trial Courtallows itself to be beset with fanciful doubts, rejects creditworthy evidencefor slender reasons and takes a view of the evidence which is but barelypossible, it is the obvious duty of the High Court to interfere in the interestof justice, lest the administration of justice be brought to ridicule.

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8. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, it is to be considered whetherin the facts and circumstances of the case, the High Court is justified ininterfering with the order of acquittal passed by the learned trial Court?

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8.1 The grounds on which the learned trial Court acquitted theaccused are narrated by the High Court in the impugned judgment, whichare as under:

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1. The motive assigned to respondents to commit the murderof Ram Aasare Pathak may be the reason of their falseimplication in this case;

2. Badri Prasad (P.W.1) and Lal Mani (P.W.3) are the chanceFwitnesses whereas Shatrughan Prasad Pathak (P.W.2), LalMani (P.W.3) and Ram Ganesh Pathak (P.W.4) thewitnesses of fact are related and interested witnessesinasmuch as Shatrughan Prasad Pathak (P.W.2) and RamGanesh Pathak (P.W.4) are the sons of the deceasedwheareas Lal Mani (P.W.3) is relatives which is establishedGon record;

3. No independent public witness has been examined.According to him, even P.W.2 and P.W.4 sons of thedeceased may also be termed as chance witnesses; H

A4.Place of occurrence is not proved by the prosecution andthere was no occasion for the deceased to reach at thealleged spot if at all he was going to attend the call of nature;

5. Absence of the firearm injury at the person of the deceasedbelied the presence of prosecution witnesses; B

6. F.I.R. is antedated;

7. The prosecution has not explained the injury of accusedMurlidhar Pathak;

8. Although respondents have not adduced any evidence intheir defence to prove the fact that deceased sustainedinjuries at the door of Murlidhar Pathak or the injuries at hisperson was caused by mob or public, or Murlidhar Pathakreceived injuries at his own door at the instance of deceased,yet in any case, the possibility of exercise of right of privatedefence by respondents cannot be said to be improbable.

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Each and every aforesaid ground has been elaborately dealt withby the High Court and on reappreciation of the entire evidence on recordthe High Court has specifically come to the conclusion that the findingsrecorded by the learned trial Court are perverse and thereafter the HighCourt has interfered with the judgment and order of acquittal passed byEthe learned trial Court.

9. So far as the submission on behalf of the accused that no motivehas been established and proved is concerned, the High Court haselaborately dealt with the same. The High Court has rightly observedthat when there is a direct evidence in the form of eyewitnesses and theFeyewitnesses are trustworthy and reliable, absence of motive isinsignificant. In the present case, in the 313 statement itself, the appellant– original accused no.4 has also stated that there was an enmity.Therefore, even according to the accused also, there was an enmity.

10. One another ground given by the learned trial Court whileGacquitting the accused was that no independent witness has beenexamined. The High Court has rightly observed that where there areclinching evidence of eyewitnesses, mere non-examination of some ofthe witnesses/independent witnesses and/or in absence of examinationof any independent witnesses would not be fatal to the case of theprosecution.H

10.1 In the case of Manjit Singh v. State of Punjab (2019) 8SCC 529, it is observed and held by this Court that reliable evidence ofinjured eyewitnesses cannot be discarded merely for reason that noindependent witness was examined.

10.2 In the recent decision in the case of Surinder Kumar v.State of Punjab (2020) 2 SCC 563, it is observed and held by this Courtthat merely because prosecution did not examine any independent witness,would not necessarily lead to conclusion that accused was falselyimplicated.

10.3 In the case of Rizwan Khan v. State of Chhattisgarh (2020)9 SCC 627, after referring to the decision of this Court in the case ofState of H.P. v. Pardeep Kumar (2018) 13 SCC 808, it is observedand held by this Court that the examination of independent witnesses isnot an indispensable requirement and such non-examination is notnecessarily fatal to the prosecution case.

11. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand and when, as observed by theHigh Court, the prosecution witnesses have fully supported the case ofthe prosecution, more particularly PW2 & PW4 and they are found tobe trustworthy and reliable, non-examination of the independent witnessesis not fatal to the case of the prosecution. Nothing is on record that thosetwo persons, namely, Shiv Shankar and Bhagwati Prasad as mentionedin the FIR reached the spot were mentioned as witnesses in thechargesheet. In any case, PW2 & PW4 have fully supported the caseof the prosecution and therefore non-examination of the aforesaid twopersons shall not be fatal to the case of the prosecution.

12. Now so far as the submission on behalf of the accused thatinjury on one of the accused – Murlidhar Pathak has not been explainedby the prosecution and reliance placed on the decision of this Court inthe case of Dashrath Singh v. State of U.P. (2004) 7 SCC 408 isconcerned, at the outset, it is required to be noted that the investigatingofficer -PW7 in his examination-in-chief in paragraph 6 has specificallystated that when they tried to arrest the said accused at 4:00 a.m. in theearly morning near the bridge, the said accused tried to run away; afterscuffle he was arrested and that during that scuffle and arrest, hesustained injuries. A suggestion was put to him in the cross-examinationthat at the time of arrest the accused Murlidhar Pathak did not receiveany injury, however, the same has been specifically denied that it is not A

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Atrue that he did not receive injury at the time of his arrest. Similarsuggestions were made to other witnesses and the same were denied.Therefore, as such, it cannot be said that the prosecution has failed toexplain the injury on the said accused. Even the aforesaid aspect hasbeen considered in detail by the High Court and the said statement hasbeen appreciated by the High Court on re-appreciating the entire evidenceBon record, more particularly the medical evidence and even the depositionof the doctors examined by the prosecution as well as by the defence.

12.1. Now so far as the reliance placed upon the decision of thisCourt in the case of Dashrath Singh (supra) is concerned, theobservations made by this Court in the aforesaid decision are required toCbe considered, considering the facts and circumstances of the case. Inthe said case, defence of the accused was that there was a free fightbetween both the parties and therefore the question arose with respectto the right of the private defence and/or who was the aggressor. Evenotherwise in the said decision also, this Court referred to paragraph 17Dof the decision of this Court in the case of Takhaji Hiraji v. ThakoreKubersing Chamansing (2001) 6 SCC 145 in paragraph 18, whichreads as under:

“17. … the view taken consistently is that it cannot be held as amatter of law or invariably a rule that whenever the accusedEsustained an injury in the same occurrence, the prosecution isobliged to explain the injury and on the failure of the prosecutionto do so the prosecution case should be disbelieved. Before non-explanation of the injuries on the persons of the accused personsby the prosecution witnesses may affect the prosecution case,the court has to be satisfied of the existence of two conditions: (i)Fthat the injury on the person of the accused was of a seriousnature; and (ii) that such injuries must have been caused at thetime of the occurrence in question. Non-explanation of injuriesassumes greater significance when the evidence consists ofinterested or partisan witnesses or where the defence gives aGversion which competes in probability with that of the prosecution.Where the evidence is clear, cogent and creditworthy and wherethe court can distinguish the truth from falsehood the mere factthat the injuries on the side of the accused persons are notexplained by the prosecution cannot by itself be a sole basis toreject the testimony of the prosecution witnesses and consequentlyHthe whole of the prosecution case.

18. The High Court was therefore not right in overthrowing theentire prosecution case for non-explanation of the injuries sustainedby the accused persons.”

12.2 Thereafter, in paragraph 19, it is observed and held as under:

“19. The injuries of serious nature received by the accused in thecourse of the same occurrence would indicate that there was afight between both the parties. In such a situation, the question asto the genesis of the fight, that is to say, the events leading to thefight and which party initiated the first attack assumes greatimportance in reaching the ultimate decision. It is here that theneed to explain the injuries of serious nature received by theaccused in the course of same occurrence arises. Whenexplanation is given, the correctness of the explanation is liable tobe tested. If there is an omission to explain, it may lead to theinference that the prosecution has suppressed some of the relevantdetails concerning the incident. The Court has then to considerwhether such omission casts a reasonable doubt on the entireprosecution story or it will have any effect on the other reliableevidence available having bearing on the origin of the incident.Ultimately, the factum of non-explanation of injuries is onecircumstance which has to be kept in view while appreciating theevidence of prosecution witnesses. In case the prosecution versionis sought to be proved by partisan or interested witnesses, thenon-explanation of serious injuries may prima facie make a denton the credibility of their evidence. So also where the defenceversion accords with probabilities to such an extent that it is difficultto predicate which version is true, then, the factum of non-explanation of the injuries assumes greater importance. Muchdepends on the quality of the evidence adduced by the prosecutionand it is from that angle, the weight to be attached to the aspect ofnon-explanation of the injuries should be considered. The decisionsabove-cited would make it clear that there cannot be a mechanicalor isolated approach in examining the question whether theprosecution case is vitiated by reason of non-explanation of injuries.In other words, the non-explanation of injuries of the accused isone of the factors that could be taken into account in evaluatingthe prosecution evidence and the intrinsic worth of the defenceversion.”

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A13. At this stage, it is required to be noted that in the present caseeven considering the defence on behalf of the accused when the deceasedcame near the door of the house of the one of the accused MurlidharPathak, he was using abusive language and there were a quarrel and theother village people might have caused injuries on the deceased.Therefore, the incident is not disputed by the accused. The place ofBoccurrence of the incident has been established and proved by theprosecution as per the case of the prosecution. The accused have failedto lead any evidence that the incident had occurred near the door of thehouse of one of the accused. Even the place of incident suggested bythe accused, if the Panchama is concerned, it does not support the caseCof the defence. The aforesaid aspect has been elaborately dealt with bythe High Court in the impugned judgment and order. It has been establishedand proved by the prosecution by leading the evidence that the incidenthad taken place on the road near Primary Pathshala. The dead bodywas recovered from the road near Primary Pathshala and the bloodstained Gamchha and tahmad were also recovered from that place. OnDthe point of place of recovery of the dead body and recovery of theblood stained etc. is unchallenged. Therefore, the prosecution has provedthe place of incident as stated in the FIR.

14. Now so far as one another ground assigned by the learnedtrial Court while acquitting the accused that there was no firearm injuryEon the person of the deceased and therefore the medical evidence isinconsistent with the ocular testimony is concerned, it is required to benoted that it was never the case of the prosecution that there was afirearm injury on the person of the deceased. Even as per the evidenceof the witnesses, when after sustaining the injuries of lathi and spear, theFdeceased fell down on the earth when other persons started coming andwhile leaving from that place, one of the accused Ramraj Pathak firedhis pistol towards the deceased. It was never the case of the witnessesthat bullet hit the deceased. On the contrary, Shatrughan Prasad Pathak,PW2 has specifically stated that the deceased has not sustained anyGfirearm injury, although Ramraj Pathak has fired at him.

15. We have carefully gone through the depositions of PW2 &PW4 who can be said to be the star witnesses and they are theeyewitnesses to the incident. From the deposition of PW2 (Hindi version,para 9), learned counsel appearing on behalf of the appellant hasvehemently submitted that the said witness has specifically admittedH

that at the night of the incident, he was at 291, Malviya Nagar and afterreceiving the information he reached at the spot. However, there is anoverwriting in para 9 and the words “not true” have been struck off bypen and what is overwriting is “it is true”. Who made this overwriting isdifficult to say at this stage? Even the aforesaid was not even pointedout and/or submitted before the learned trial Court or even before theHigh Court. However, if we read the entire para 9 as a whole, it is verydifficult to accept that he admitted that he was not present in the villagein the morning and therefore his presence can be doubted. Be that as itmay, even if for the time being evidence of PW2 is not considered and/or excluded, there is an overwhelming evidence in support of theprosecution in the form of PW4. His presence is not doubted. He isfound to be trustworthy and reliable. His deposition is consistent withthe allegations in the FIR. There is no reason to doubt his trustworthiness.Therefore, even the appellant can be and is rightly convicted relyingupon the deposition of PW4, who is an eyewitness to the incident.

16. Now let us consider the case and/or defence on behalf of theappellant – original accused no.4. It was the case on behalf of the accusedthat the incident occurred at the door of the house of the accused MurlidharPathak and that Murlidhar Pathak, another accused, was being hurdledabuses and assaulted by the deceased and the mob inflicted injuries onthe person of the deceased. Except the above statement, the same hasnot been established and proved by the defence by leading cogentevidence, more particularly when the accused have examined threedefence witnesses. Nobody from the mob has been examined by them.Even in his 313 statement, the only defence of the appellant -accusedno.4 was that he has been falsely implicated in the case due to enmityand that he was not there. He has not led any evidence to prove that hewas elsewhere.

17. Considering the aforesaid facts and circumstances of the caseand on re-appreciation of the evidence, when the High Court has cometo the conclusion that the findings recorded by the learned trial Courtwhile acquitting the accused were perverse and even contrary to theevidence on record and/or misreading of the evidence, the High Courthas rightly interfered with the judgment and order of acquittal passed bythe learned trial Court and has rightly convicted the accused. In thepresent case, the appellant – original accused no.4 was specifically namedright from the very beginning in the FIR. He has been attributed the AB

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Aspecific role. The same has been established and proved from the evidenceof PW4 (even if the deposition of PW2 is for the time being ignored).No error has been committed by the High Court in interfering with thejudgment and order of acquittal passed by the learned trial Court.

18. In view of the above and for the reasons stated above, we seeBno reason to interfere with the impugned judgment and order passed bythe High Court reversing the acquittal and convicting the accused. Weare in complete agreement with the view taken by the High Court. Thepresent appeal is accordingly dismissed.

19. As the appellant – Guru Dutt Pathak, original accused no.4Cwas granted interim bail up to 30.04.2021 and thereafter the same hasnot been extended by this Court and the present appeal is now dismissed,if the accused has not surrendered so far, he shall surrender himselfforthwith to serve out the sentence.

DDevika Gujral

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