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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.          OF 2017 (Arising out of S.L.P.(Crl.)No.8717 of 2014)

Arun Kumar            ….Appellant(s)

VERSUS

The State of Bihar & Ors.    ….Respondent(s)

                 J U D G M E N T

Abhay Manohar Sapre, J.

1) Leave granted.

2) This  appeal  is  filed  by  the  son  of  the

deceased-Sheo  Kumar  Pati  Tiwari  against  the  final

Order dated 21.04.2014 passed by the High Court of

Judicature at Patna in Criminal Appeal(D.B.) No.1030

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of 2013 whereby the Division Bench of the High Court

dismissed  the  appeal  filed  by  the  appellant  herein

under Section 372 of the Code of Criminal Procedure,

1973 (hereinafter referred to as “the Code”) against the

acquittal of respondent Nos.2-5 of the charges under

Sections  302/34,  201  and  307  of  the  Indian  Penal

Code,  1860  (hereinafter  referred  to  as  “IPC”)  vide

judgment  dated  17.09.2013  passed  by  the  Ad-hoc

Additional  District  &  Sessions  Judge-III,  Siwan  in

Sessions Trial No.32 of 1993.  

 3) The  prosecution  case,  in  short,  is  that  on

24.07.1991, after  having dinner at  9.00 p.m.,  the

informant-Uma  Pati  Tiwari  along  with  his  elder

brother Ram Tapasya Pati Tiwari and nephew Sheo

Kumar Pati Tiwari were talking with each other at

the  Bathan  situated  at  Village  Kashidat  Diara

District  Siwan,  Bihar.   At  that  time,  Ram Naresh

Chaudhary  with  Gun,  Sukhraj  Mallah  with  Gun,

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Janardan Ahir with Lathi, Chandeshwar Kurmi with

Gun, Anil Singh with Gun, Balinder Ahir with Lathi,

Naga Bhar with Lathi and Dwarika Chaudhary with

Lathi  came  there  in  group  and  attacked  them.

Janardan Ahir and Balinder Ahir hit  on the right

hand  of  the  informant  with  lathi  five  times  and

Sukhraj Mallah fired gun shot on Ram Tapsya Pati

Tiwari, the brother of the informant.  Ram Naresh

Chaudhary,  Anil  Singh  and  Sukhraj  Mallah  fired

bullets from gun at Shiv Kumar Pati  Tiwari.  The

informant and the people with him fell down being

injured.   Shiv  Kumar  Pati  Tiwari  died  and  the

accused  persons  fled  away  with  his  dead  body

towards South.  The informant had injuries on his

right hand and back and Ram Tapsya Pati Tiwari

had gun shot injury on his left eye, left ear and also

at nose.  The other villagers saw the incident.

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4) The cause of the incident was that some days

ago, the accused persons had cut and stolen away

the barbed wire of the field of the informant upon

which, they scolded the accused persons.

5) The informant stated that  he had recognized

the accused persons in moon light and torch light.

The  injured  persons  were  admitted  in  Sadar

Hospital, Siwan.

6) On  25.07.1991,  at  about  10.00  a.m.,  Mr.

Mahender  Pandey,  Thana In-charge,  after  hearing

about  the  incident,  came  in  the  Hospital  and

recorded the statement of the deceased’s father in

his  station  diary  at  entry  No.  393.   Thereafter,

sub-Inspector Mr. J.N. Prasad proceeded to inspect

the  scene  of  the  crime,  collected  sample  of  blood

stained earth etc.  and recorded the statements of

the  witnesses.   At  1.00  p.m.   Mr.  A.A.

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Khan-Sub-Inspector recorded the statement of the

deceased’s uncle in the Hospital.   

7) On the basis of the station diary entry No.393,

Sub-Inspector  Mr.  J.N.  Prasad  registered  FIR

No.42/1991 dated 25.07.1991 was lodged against

eight accused persons in Assaon Police Station.  The

accused persons were apprehended.

8) After investigation, charge-sheet No.32/91 was

filed  on  21.10.1991  against  Ram  Naresh

Chaudhary,  Balvinder  Ahir,  Anil  Singh,  Sukhraj

Mallah, Chandreshwar Kurmi, Janardan Ahir, Naga

Bhar and Dwarika Chaudhary.   

9) Subsequently,  a  supplementary  charge-sheet

No.3 of 1992 was filed on 09.06.1992 against Anil

Singh,  Naga  Bhar  and  Sukhraj  Mallah,

Chandreshwar Kurmi, Janardan Ahir and Dwarika

Chaudhary.   

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10) After  cognizance  on  17.09.1992,  the  trial  of

three accused Sukhraj Mallah, Chandreshwar Ahir

and Dwarika Chaudhary was separated.  Thereafter

the trial of Naga Bhar was also separated.

11) Thereafter,  on  the  basis  of  original  charge

sheet, Sessions Trial No.32/93 and on the basis of

the  supplementary  charge  sheet  Sessions  Trial

No.76/93 was lodged.   Both the  trials  were  tried

together.   

12) Charges  were  framed  against  the  accused

persons.  Respondent Nos. 3 & 4 were charged with

offences  punishable  under  Sections  201/302/34

IPC.  Respondent Nos. 2 & 5 were charged with the

offences  punishable  under  Sections

323/324/325/307 IPC.  All the four accused were

charged with the offences of rioting and committing

murder with common object. The  prosecution

examined 13 witnesses.   

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13) By judgment dated 17.09.2013, the Trial Court

acquitted  all  the  accused  persons  of  the  offences

charged against them.

14) Challenging the said judgment, the son of the

deceased filed appeal before the High Court.

15) By impugned order, the High Court dismissed

the appeal filed by the appellant.   

16) Hence, the appellant has filed this appeal by

way of special leave petition before this Court.

17) Having  heard  the  learned  Counsel  for  the

parties  and  on  perusal  of  the  record  of  the  case

including perusing the written submissions filed by

the respondents, we are inclined to allow the appeal

in part and remand the case to the High Court for

hearing the appeal on merits afresh in accordance

with law.

18) We  are  of  the  considered  opinion  that  the

appeal needs to be remanded to the High Court for

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its hearing on merits afresh in accordance with law.

The need to remand the case has occasioned due to

the  reason  that  we  find  that  the  High  Court

dismissed  the  appeal  cursorily  and  by  a  cryptic

order.  

19) The High Court though in the impugned order

referred  to  the  evidence  of  some  witnesses  but

neither  referred  and  nor  appreciated  much  less

discussed  the  entire  evidence  adduced  by  the

prosecution of as many as 13 witnesses in proper

perspective. In other words, we find that the High

Court  did  not  exercise  its  appellate  powers  while

hearing the appeal in the manner it ought to have

and  dismissed  the  appeal  finding  no  fault  in  the

order  impugned  before  it  by  observing  in  its

conclusion  that  since  the  view  taken  by  the

Sessions Court is a plausible view, the same does

not call for any interference by the High Court.

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20) It is true that the appeal before the High Court

was  against  the  acquittal  order  of  the  Sessions

Judge  whereby  all  the  accused  charged  for  the

offences  punishable  under  Sections  302/34,  201

and  307  of  IPC  stood  acquitted  yet,  in  our

considered view, the law laid down by this Court  on

the question of  the powers of  the Appellate Court

while  hearing  the  appeal  arising  out  of  acquittal

order  of  the  Sessions  Judge  in   Lalit  Kumar

Sharma  &  Ors.  Vs.  Superintendent  &

Remembrancer  of  Legal  Affairs,  Govt.  of  West

Bengal,  1989 Supp(2) SCC 140 should have been

kept  in  consideration  by  the  High  Court  while

hearing  the  appeal  and  further  the  High  Court

should have called for the record of the case from

the Trial Court as provided under Section 385 (2) of

the Code which it seems was not called for.  

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21) It  is  apposite  to quote the law laid down by

this Court in the case of  Lalit Kumar  (supra).

“8. Before  dealing  with  the  contentions raised by the respective learned counsel, we shall  examine whether the judgment of  the trial  court  was  manifestly  perverse  and wholly  unreasonable,  compelling  the appellate court to step in with the order of acquittal.  It  is  now  well  settled  that  the power  of  an  appellate  court  to  review evidence  in  appeals  against  acquittal  is  as extensive  as  its  powers  in  appeals  against convictions, but that power is with a note of caution  that  the  appellate  court  should  be slow  in  interfering  with  the  orders  of acquittal unless there are compelling reasons to do so.  This Court  in  Mathai Methews v. State of Maharashtra1 has pointed out that (SCC pp. 773-74, para 5):

“if a finding reached by the trial Judge  cannot  be  said  to  be  an unreasonable  finding,  then  the appellate court should not disturb that finding even if it is possible to reach a different conclusion on the  basis  of  the  material  on record.”

Regarding the power of the appellate court in dislodging  a  finding  of  acquittal  of  a  trial court, there are plethora of decisions, but we feel that it is not necessary for us to refer to all those decisions because we are of the firm view that the impugned judgment is liable to be  set  aside  even  on  the  ground  that  the appellate  court  has  gone  wrong  in  setting aside  the  order  of  acquittal  on  the re-appraisal of the available evidence.”

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22) As  mentioned  above,  since  the  High  Court

decided the appeal without keeping in view the law

laid  down  by  this  Court  quoted  supra,  it  has

committed an error and hence it is not possible for

this  Court  to  sustain  the  impugned  order  which

deserves to be set aside.

23) This  Court  cannot  undertake  the  exercise  of

discussing and appreciating the evidence as a first

Appellate Court and secondly, having regard to the

nature  of  charges  leveled  against  the  accused

persons  and  the  evidence  adduced  by  the

prosecution,  we  consider  it  just  and  proper  to

request the High Court to decide the appeal afresh

on merits keeping in view the law laid down by this

Court in the case of Lalit Kumar Sharma (supra).

24) We have also perused the written submissions

filed by the respondents as permitted by the Court.

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However,  we  are  not  persuaded  to  accept  the

submissions  of  the  respondents  urged  in  their

written  submissions  for  the  reasons  mentioned

above. In our opinion, the cursory manner in which

the  High  Court  disposed  of  the  appeal  does  not

command us to uphold the impugned order.  

25) In any event, the respondents (accused) would

have full opportunity to place their case before the

High  Court  on  remand  and  urge  all  their

submissions in support of the order of the Sessions

Judge on the merits.  

26) Before  parting  with  the  case,  we  consider  it

proper to make it clear that we have not recorded

any finding on the merits of the case having formed

an opinion to remand the case to the High Court for

hearing the appeal afresh on merits on the grounds

mentioned above.  

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27) The  High  Court  will,  therefore,  decide  the

appeal strictly in accordance with law uninfluenced

by any of our observations made in this order.

28) In  view  of  foregoing  discussion,  the  appeal

succeeds  and  is  accordingly  allowed  in  part.

Impugned order  is  set  aside.  The criminal  appeal

out  of  which  this  appeal  arises  is  accordingly

restored to its original file to enable the High Court

to decide the appeal, as directed, expeditiously.

               ………...................................J.

[R.K. AGRAWAL]             

                        …... ……..................................J.

        [ABHAY MANOHAR SAPRE] New Delhi; May 01, 2017  

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