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Non Reportable  

IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL   Nos  . 407- 408   of   2009

Mohd. Akhtar @ Kari & Ors.        .... Appellants    

Versus

State of Bihar & Anr.      …. Respondents

J U D G M E N T

L. NAGESWARA RAO, J.

1. In  these  Appeals,  we  are  concerned  with  the

correctness  of  the  judgment  of  the  High  Court  of

Judicature at Patna by which the judgment of the trial

court was set aside and the acquittal of the Appellants

was reversed.  The High Court convicted the Appellants

under Section 302 read with Sections 34 and 148 of the

Indian Penal Code, 1860 (“the IPC”) and sentenced them

to undergo life imprisonment.       

2. We are informed that the Appellant Nos. 1, 2 and 4

died during the pendency of these Appeals and so, the

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Appeals filed by them abate.  On the statement of the

informant         Md. Abu Daud (PW-6), the fardbeyan was

recorded  by  the  Officer  Incharge  of  Matihani  Police

Station  at  9.00  p.m.  on  05.01.1984.   He  stated  that

along  with  his  brother  Md.  Nadir  Sah  @  Jumma

(deceased), he had gone to the house of         Md. Mobin

(PW-4) for collecting irrigation dues.  They were basking

by the ghura (fire place) at Md. Mobin’s darwaza.     A

mob of 10-11 persons armed with pistols, rifles and gun

came there at that time.  The informant identified seven

out  of  eleven  persons.   Md.  Chamru  @ Sahadat  was

armed  with  gun,  Noor  Alam with  rifle,  Md.  Jam Alam

(Appellant  No.4)  with  gun  and  Md.  Kari  @  Akhtar

(Appellant  No.1),  Md.  Samad  and     Md.  Sanjat

(Appellant No.3) also had fire arms.  Immediately after

the mob reached, the accused Md. Chamru@ Sahadat

warned that nobody should try to escape and then Md.

Sanjat (Appellant No.3) fired one shot which did not hit

anybody.      The informant, Md. Nadir Sah @ Jumma

(deceased) and      Md. Mobin (PW-4) started running

and all  the accused chased them.  The informant hid

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himself by the side of a Simal tree from where he saw

his brother Md. Nadir Sah @ Jumma (deceased) being

surrounded by the accused near the southern wall of the

house of one Samshul.                             After being

surrounded, the deceased Md. Nadir Sah @Jumma was

shot dead by Md. Chamru @ Sahadat, Md. Jan Alam and

Noor Alam.  The accused fled towards the village and

soon after the informant and Md. Mobin rushed to where

the deceased was lying and found that he was hit by the

bullets.  They started shouting for help.  Md. Adil, Md.

Ataul  Rehman  and  several  others  came.   They  were

informed about the incident by the informant.    

3. On completion of the investigation, a charge sheet

was filed under Sections 148 and 302 read with Section

149 IPC against seven persons out of whom one of the

accused Md. Samad died and Md. Chamru @ Sahadat

and Noor Alam absconded.       The remaining accused

i.e. the  Appellants-  herein  faced  trial  for  the  charges

framed under Sections 148  and 302 read with Section

149 IPC.  According to PW-9 Bishram Das, who was the

investigating  officer,  the  information  was  received  at

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7.45 p.m. on 05.01.1984 that        2-3 shots were hurled

and one person killed in Saidpur village.  After recording

S.D. Entry No.65, he proceeded to the Saidpur village

along with other policemen.                   After reaching

the place of the incident,  he recorded            the

statement  of  Md.  Abu Daud and prepared an  inquest

report.   He  also  seized  the  blood  soaked  soil,  ash  of

ghura and             a lantern.   

4. Post-mortem examination of deceased Jumma was

conducted  by  PW-5  at  8.00  a.m.  on  06.01.1984  who

found  the  following  injuries  on  the  person  of  the

deceased Md. Nadir Sah @ Jumma :  “(i) Deep wound with irregular burnt margin, size  x  2”  x   2”  over  the  right  cheek  with surrounding  areas  with  black  stained  with comminuted  fracture  on  the  right  side mandible  and  maxilla  and  there  was laceration of the surrounding tissues of the tongue.   Multiple  pillets  and  cork  were recovered which were preserved and sealed.

(ii)  Penetrating  wound  ½”  diameter  with burnt  and  inverted  margin  over  the  right coastal  cartilage  middle  of  the  right  nipple caused fracture of the cartilage.  On further deep  dissection  the  right  lunge  was  found penetrated.  There was also blood in the left side  of  chest  cavity.   There  was  also penetration  of  lower  lobe  of  the  left  lung. There  was  hole  in  the  heart.  There  was fracture of the ninth rib.  There was wound on

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the  back  size  1”  in  diameter  with  inverted margine.”    

5. Hemorrhage  due  to  the  above  injuries  was  the

cause of  death according to PW-5 and the death had

occurred  24  hours  prior  to  the  post-mortem

examination.   Out  of  the  11  witnesses  who  were

examined by the Prosecution, PWs-3,4 and 6 were the

eye witnesses.  PW-3 deposed that he heard the sound

of  firing  near  the  house  of  Samshul  when  he  was

returning from Ghasarpur Tola and saw seven accused

who  were  chasing  the  deceased  Md.  Nadir  Sah  @

Jumma,  Md.  Abu Daud (PW-6)  and Md.  Mobin  (PW-4).

Accused- Md. Jam Alam, Md. Sahadat and Noor Alam had

fired at the deceased near the house of Samshul.  He

stated  that  he  identified  the  accused  by  flashing  his

torch light.  According to him, the police arrived at the

place of the incident at 9.00 p.m.  He testified that he

did not  tell  anybody about the incident till  the police

reached  there.   PW-4  stated  in  his  evidence  that  he

arranged a ghura (fireplace) with leaves at 6.00 p.m. on

05.01.1984.  Md. Abu Daud (PW-6) and Md. Nadir Sah @

Jumma (deceased) who came to demand the remaining

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irrigation dues from him also sat near the ghura. At that

time a  mob of  11 persons suddenly  came there.   He

could identify seven out of eleven persons in mob in the

light of ghura and of lantern which was hanging in the

oriyani  (veranda).   He  further  deposed  that  he,  the

deceased,  and  PW-6  started  running  away  from  the

mob.   The deceased was surrounded by the accused

near the southern wall of Samshul’s house.  He was shot

dead by the accused Sahadat, Md. Jam Alam and Noor

Alam.  He stated that Md. Jam Alam and Sahadat had

guns, Noor Alam had a rifle and rest of the accused had

lathis.  PW-6 who is the informant deposed that there

was  sufficient  light  cast  because  of  the  ghura  (fire

place), the lantern and the torch which he was carrying.

He witnessed the incident from behind the Simal tree

which was 15 yards from the place of occurrence.                            6. The  oral  testimonies  of  PWs-  3,4  and  6  were

examined  thoroughly  and  the  trial  court  was  of  the

opinion that it is not safe to rely on their statements.

The  trial  court  held  that  the  evidence  relating  to

identification of the accused in the available light was

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not  convincing.   There  is  reference  to  the  evidence

regarding the lantern in the varanda which was behind

the  place  where  the  mob  was  standing  and  the

improbability    of  their  being  identified  in  the  light

emitted by the lantern.  The evidence of PW-6 that he

flashed a torch light for identifying the accused persons

was disbelieved as no torch was seized by the police.

For  the  aforesaid  reasons,  the  trial  court  was  of  the

opinion that the eye witnesses could not have identified

the accused.  Previous enmity between the accused on

one  hand  and  the  informant’s  family  on  the  other

was proved.  The trial court further found that there was

a delay in lodging the FIR which provided an opportunity

to  the  informant  and  other  PWs  to  implicate  their

enemies.  Thus, false implication could not be ruled out.

Further,  the  fardbeyan was recorded in  the  village at

9.00 p.m. on 05.01.1984.  A dead body challan which

was prepared by    J.N. Singh, Sub-Inspector of Police

(S.I.)  which  shows  that  the  body  was  sent  for  post-

mortem at 11.00 p.m.  There was also an entry in the

station diary that J.N. Singh (S.I.) returned to the police

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station at 9.00 p.m.  If the fardbeyan was prepared at

9.00 p.m. at the place of incident which is six kilometers

away from the police station, J.N. Singh (S.I.) could not

have  arrived  at  the  police  station  at  9.00  p.m.   The

record  shows  that  he  prepared  the  inquest  report  at

10.00 p.m. and the dead body challan at 11.00 p.m. at

the  place  of  occurrence.   J.N.  Singh  (S.I.)  who  is  an

important witness was not examined by the prosecution.

Referring  to  the  above  circumstances,  the  trial  court

held that it  was clear that the inquest report and the

dead  body  challan  were  prepared  later  at  the  police

station.   An adverse inference was drawn against the

Prosecution.   The  trial  court  also  took  note  of  the

presence  of  the  Mangal  Tanti,  the  Chowkidar  of  the

village,  who  reached  the  place  of  the  incident  in  30

minutes  after  the  incident  took  place.   He  was  not

examined as a witness.  None of the witnesses deposed

that  they informed the Chowkidar  about  the incident.

No  independent  witness  was  examined  though  the

village  was  hardly  200  metres  from the  place  of  the

incident.  No pellet or traces of bullets were recovered

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from the  place  of  the  incident.   On  the  basis  of  the

above  findings  along  with  other  contradictions  in  the

evidence of the witnesses, the trial court acquitted the

Appellants of all the charges against them.    

7. The Appeals filed by the State and the revision filed

by the complainant,  were taken altogether.   The High

Court appreciated the evidence and found fault with the

judgment  of  the  trial  court.  The  High  Court  felt  that

apart  from minor  inconsistencies,  the evidence of  the

eye witnesses was reliable and there was sufficient light

to identify the accused.           The accused shared a

common intention of killing the deceased according to

the High Court.   The delay in registering the FIR was

found to be not fatal to the case of the Prosecution.  The

evidence of interested witnesses was also held reliable

by the High Court.  The minor errors                    in

recording  the  time  in  the  police  station  and  the

non-examination of J.N. Singh (S.I.) did not prejudice the

prosecution’s case.  By differing with the view taken by

the trial court on the above points, the High Court found

that the judgment of the trial court is perverse and that

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there is only one view possible which leads to the guilt

of the accused.     On the aforesaid findings, the High

Court convicted the Appellants under Section 302 read

with Sections 34 and 148 IPC and sentenced them to life

imprisonment.   

8. The  question  that  falls  for  determination  in  this

case is whether the High Court was right in setting aside

the acquittal of the Appellants and convicting them for

an offence of murder.   While holding that there is  no

limitation placed on the power to review the evidence in

an  appeal  against  acquittal,  Lord  Russell  in  Sheo

Swarup v. King-Emperor1  held: “9.  .. .. the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to  the  credibility  of  the  witnesses;  (2)  the presumption  of  innocence  in  favour  of  the accused,  a  presumption  certainly  not weakened  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) the  slowness  of  an  appellate  Court  in disturbing a  finding of  fact  arrived at  by  a

1 (1934) 36 BOM LR 1185 ¶9

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Judge who had the advantage of seeing the witnesses.”   

9. The  approach  of  the  High  Court  in  an  appeal

against  acquittals  was  explained  by  this  Court  in

Surajpal Singh & Ors. v. The State2 as follows:  “It  is  well-established  that  in  an  appeal under section 417 of the Criminal Procedure Code, the High Court has full power to review the  evidence  upon  which  the  order  of acquittal was founded, but it is equally well- settled that the presumption of innocence of the  accused  is  further  reinforced  by  his acquittal by the trial court, and the findings of the trial court which had the advantage of seeing  the  witnesses  and  hearing  their evidence  can  be  reversed  only  for  very substantial and compelling reasons.”

10. This  Court  in  Muralidhar  @  Gidda  &  Anr. v.

State  of  Karnataka3 referred  to  several  earlier

judgments           dealing with appeals against acquittals

and observed that the appellate court must bear in mind

the following :  

“12.  .. .. (i)  There  is  presumption  of  innocence  in favour  of  an  accused  person  and  such

2 (1952) 3 SCR 193 3 (2014) 5 SCC 730 ¶ 12 (i-iv)

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presumption is strengthened by the order of acquittal  passed  in  his  favour  by  the  trial court;

(ii)  The  accused  person  is  entitled  to  the benefit  of  reasonable  doubt  when  it  deals with  the  merit  of  the  appeal  against acquittal;

(iii)  Though,  the  powers  of  the  appellate court  in  considering  the  appeals  against acquittal  are  as  extensive  as  its  powers  in appeals against convictions but the appellate court  is  generally  loath  in  disturbing  the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanour of the witnesses. If the trial court takes a reasonable view of the facts  of  the  case,  interference  by  the appellate  court  with  the  judgment  of acquittal  is  not  justified.  Unless,  the conclusions  reached  by  the  trial  court  are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to  stand,  they  are  likely  to  result  in  grave injustice,  the  reluctance on the  part  of  the appellate  court  in  interfering  with  such conclusions is fully justified; and

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(iv)  Merely  because  the  appellate  court  on reappreciation  and  re-evaluation  of  the evidence is inclined to take a different view, interference with the judgment of acquittal is not  justified  if  the  view  taken  by  the  trial court is a possible view. The evenly balanced views of the evidence must not result in the interference  by  the  appellate  court  in  the judgment of the trial court.”

11. It is relevant to refer to another judgment of this

Court  in  Ghurey Lal v.  State of  Uttar  Pradesh4 in

which  the  principles  to  be  followed  by  the  appellate

courts to overrule or otherwise disturb the trial court’s

acquittal were crystallised as under:  

“70.  … 1. The appellate court may only overrule or otherwise disturb  the  trial  court's  acquittal  if  it  has  “very substantial and compelling reasons” for doing so.

A number of instances arise in which the appellate court  would  have  “very  substantial  and  compelling reasons” to discard the trial  court's  decision.  “Very substantial and compelling reasons” exist when:

(i) The trial court's conclusion with regard to the facts is palpably wrong;

4 (2008) 10 SCC 450

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(ii)  The  trial  court's  decision  was  based  on  an erroneous view of law; (iii)  The  trial  court's  judgment  is  likely  to  result  in “grave miscarriage of justice”; (iv) The entire approach of the trial court in dealing with the evidence was patently illegal; (v) The trial court's judgment was manifestly unjust and unreasonable; (vi)  The  trial  court  has  ignored  the  evidence  or misread  the  material  evidence  or  has  ignored material documents like dying declarations/report of the ballistic expert, etc. (vii)  This  list  is  intended  to  be  illustrative,  not exhaustive. 2.  The  appellate  court  must  always  give  proper weight and consideration to the findings of the trial court. 3. If two reasonable views can be reached—one that leads to acquittal, the other to conviction—the High Courts/appellate  courts  must  rule  in  favour  of  the accused.”

12. Interference with the judgment of the trial court in

this case by the High Court is on a re-appreciation of

evidence which is undoubtedly permissible.  Though the

High Court was aware of the well-settled principles of

law in matters relating to appeals against acquittals, it

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failed  to  apply  the  same  in  their  proper  perspective.

Interference with an order of acquittal is not permissible

on the ground that a different view is possible.  If the

acquittal is justified on a probable view taken by the trial

court,  it  should  not  be  interfered  with.   The  reasons

given by the trial court for acquittal mainly pertain to

the  delay  in  lodging  the  FIR,  untrustworthy  eye

witnesses, improbability of identification of the accused,

non-  examination  of  independent  witnesses,  previous

enmity  between the  accused and the witnesses,  non-

production  of  important  prosecution  witnesses  and

improper  investigation  of  the  case.   On  a  thorough

examination of the entire evidence on record and the

judgment  of  the  trial  court,  we are of  the considered

view that the judgment of acquittal by the trial court is

justified which ought not to have been interfered with by

the High Court. The High Court could not have reversed

a judgment of acquittal merely because another view is

possible.   The  High  Court  brushed  aside  the  findings

recorded by the trial court relating to certain omissions

as being minor and held the omissions should not have

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been  the  basis  on  which  the  Appellants  have  been

acquitted.   The  High  Court  ignored  the  fact  that  the

presumption  of  innocence         in  favour  of  the

Appellants  is  further  strengthened  by  an  order  of

acquittal.    No perversity in  the judgment of the trial

court  in  acquitting  the  Appellants  has  been

demonstrated by the High Court for interfering with the

judgment of the trial court.   

13. For  the aforementioned reasons,  the Appeals  are

allowed.  The judgment of the High Court is set aside

and the  judgment  of  the  trial  court  is  restored.   The

Appellant No.3 was released on bail on 30.01.2017. His

bail bonds are discharged.          

           ...................................J.                                              [ L. NAGESWARA RAO ]

               ..................................J.               [ R. SUBHASH  REDDY ]

New Delhi, December 04,  2018.