Khurshid Ahmed vs The State Of Jammu And Kashmir

This appeal is directed against the judgment dated 11 th

March, 2015 passed by the High Court of Jammu and Kashmir at

Jammu in Criminal Appeal No. 36 of 2012. By the said judgment,

the High Court reversed the order of acquittal passed by the

Principal Sessions Judge, Bhaderwah against the appellant, and

convicted him for the offences punishable under Sections 302/341

of the Ranbir Penal Code (hereinafter referred to as ‘RPC’) and

sentenced him to suffer imprisonment for life and to pay a fine of

Rs.1,000/- for the offence punishable under Section 302, RPC and 2

to pay a fine of Rs.500/- for the offence under Section 341, RPC,

with the direction to realize the fine amount from his estate.

2. The brief facts, as culled out from the prosecution case

are that on 18th May, 2006 a shop keeper of hardware material,

namely, Arshad Sajad accompanied by his father Sajad Ahmed

Bhat (PW9) were going to their home after closure of shop in the

evening at about 5.30 p.m., while they were on their way, near

Masjid, the appellant herein intercepted them from the opposite

direction and started hurling abuses against them. When they

ignored his abuses and moved forward, the appellant attacked

Arshad Sajad on his head from behind with an iron rod. The injured

Arshad Sajad and his father then went to the clinic of one Ali Mohd.

(PW3) and on his advise they went to the Bhaderwah police station

and informed the police about the incident. Accordingly, FIR No. 53

of 2006 was registered against the accused—appellant for the

offences punishable under Sections 341/323, RPC. Police then sent

the injured to Sub District Hospital, Bhaderwah for treatment. As

his condition was deteriorating, for better treatment, he was being 3

shifted to Government Medical College, Jammu, but on the way, he

succumbed to the injuries.

3. Nisar Ahmed, S.H.O. of police station Bhaderwah—PW 14

took up the investigation, sent the body of the deceased for

postmortem, seized his clothes, inspected the spot, collected

samples of bloodstained earth as well as normal earth and prepared

site map (Ext. PW N.A.) and seizure memos. The accused—appellant

was arrested on 20th May, 2006 and one iron rod being the weapon

of assault has been recovered at his instance and sent it for

chemical examination. Having recorded statements of witnesses

under Section 161, Cr.P.C. the I.O. carried on the investigation in

which it was revealed that the motive behind the accused

assaulting the deceased was actually related to a prior tussle

between them during the daytime at the shop of the deceased over a

financial transaction. Allegedly, basing on the guarantee and

undertaking given by the accused—appellant, the deceased

supplied some G.I. sheets to one Gias-ud-Din. When the appellant

came to the shop of the deceased, he insisted the appellant to make

payment. Over that issue, there occurred a scuffle between the 4

appellant and the deceased. The passersby including Farid Iqbal

(PW1), Sajad Ahmed—father of the deceased (PW9), Abid Hussain

(PW10) and Amjad Hanif (PW12) got them separated. While leaving

the shop, the appellant declared that he will see the deceased

anytime, and in the evening when the deceased and his father

(PW9) were going to their home, the accused met them on the way

and assaulted the deceased on his head.

4. As the head injury resulted in the death of Arshad Sajad,

charge against the accused was altered for the offence under

Section 302/341, RPC and accordingly charge sheet was laid. The

accused pleaded not guilty and claimed to be tried.

5. At the trial, in its endeavour to prove the guilt of the

accused, prosecution had examined as many as 14 witnesses,

whereas the accused in his defence has examined one witness. The

trial Court after a full fledged trial, came to the conclusion that the

prosecution has failed to prove motive and the statement of sole

eyewitness (father of the deceased) stood uncorroborated with the

other witnesses, as the prosecution has failed to establish the guilt 5

of the accused beyond reasonable doubt has acquitted the accused

from the alleged offences under Section 302/341, RPC.

6. Aggrieved by the order of acquittal passed by the trial

Court, the State of Jammu & Kashmir raised appeal before the High

Court. Upon adjudicating the same, the High Court has come to the

contrary conclusion and observed that the evidence of the sole

eyewitness (father of the deceased) was duly corroborated by oral,

documentary and expert evidence and by improperly rejecting the

same, the trial Court has committed grave miscarriage of justice.

Therefore, the High Court reversed the order of acquittal into

conviction for the charges under Section 302/341, RPC and

sentenced the accused—appellant as stated hereinabove. That is

how the accused is in appeal before this Court.

7. Before analyzing the evidence available on record and

going into the legal aspects of the same, we feel it appropriate to

first deal with the contentions advanced by the learned counsel on

either side.

8. Mohd. Aslam Goni, learned senior counsel representing

the accused—appellant has advanced his arguments strongly 6

pointing out that in the entire case there were several lapses on the

part of prosecution which were ignored by the High Court, while

reversing the well considered judgment of the trial Court. Disputing

the genesis of FIR itself, learned senior counsel argued that as per

the prosecution, on 18.5.2006, oral report was given by the

deceased at 8.30 p.m. at police station, Bhaderwah about the

occurrence, based on which FIR was registered. According to I.O.—

Nisar Ahmed (PW14), he recorded the statement of deceased at 10

p.m. in the hospital. But, the said statement is missing in the main

file which was replaced with a statement in the handwriting of ASI

—Jan Mohd (DW1), who has not been examined as a prosecution

witness. The reason behind replacing the statement of I.O. with that

of ASI Jan Mohd is only with a view to implicate the appellant in the

crime.

9. It was further contended that despite there being no

proof of strong motive for the appellant to commit the offence, nor

there being any independent eyewitness to the incident, the fact

that only one injury has been suffered by the deceased, the High

Court should not have taken a different view to the one taken by 7

the trial Court. The High Court should have dealt with the case with

high standard of presumption of innocence on the part of the

appellant. Supporting the decision rendered by the trial Court,

learned senior counsel relied on the judgments of this Court in

Rathinam @ Rathinam Vs. State of Tamil Nadu & Anr., (2011)

11 SCC 140, Bindeshwari Prasad Singh & Ors. Vs. State of

Bihar & Anr., (2002) 6 SCC 650 and Sunil Kumar Sambhudayal

Gupta & Ors. Vs. State of Maharashtra, (2010) 13 SCC 657,

submitted that interference by the High Court is not justified in the

present case inasmuch as there is no manifest error, perversity or

illegality in the trial Court’s judgment.

10. The learned senior counsel tried to impress upon this

Court that the evidence of PW9 i.e. father of the deceased, is not

trustworthy and he is an interested witness. Further, as a matter of

fact, it can be found from Page No. 64 of account (khata) that there

was nothing to establish that the accused stood as guarantor to pay

the sum due by Gias-ud-Din. Taking strength from the deposition of

PW9 that in 2007 one Villayat Goni paid him the amount due in the

name of Gias-ud-Din, it was argued that prosecution has failed to 8

prove the motive and the alleged offence beyond reasonable doubt

for the reason that it was someone else who paid the due amount

but the prosecution had wrongly projected the accused as

guarantor and unnecessarily implicated the appellant in the case.

11. Relying further on the decisions of this Court in Shivaji

Sahabrao Bobade & Anr. Vs. State of Maharashtra, (1973) 2

SCC 793, State of U.P. Vs. Kishanpal & Ors., (2008) 16 SCC 73,

Nallabothu Venkaiah Vs. State of Andhra Pradesh, (2002) 7

SCC 117 and Jarnail Singh & Ors. Vs. State of Punjab, (2009) 9

SCC 719, learned senior counsel submitted that the High Court

ignored the important legal principles while convicting the accused,

who was already declared innocent and acquitted by the trial Court,

under Section 302, RPC the circumstances should be conclusive in

nature. The prosecution stated that at the time of occurrence, one

Aslam and Zakir were also there at the spot, but they were not

named as witnesses nor were they examined. Even the alleged

eyewitness, father of the deceased, has not exactly seen at whose

hands the deceased was injured. It can be found from his own

words that he was walking one meter ahead of the deceased and 9

when he turned back on hearing the cry of his son, the appellant

disappeared from there. In such situation, the prosecution case

solely based on the evidence of PW9 cannot be believed, as his

evidence is filled with assumptions and presumptions as well as

surmises and conjectures.

12. The next contention of the learned senior counsel is that

when the deceased was taken to hospital he was in complete

consciousness, but the attending Doctor did not adopt proper

course of treatment so as to save the life of the deceased. The

Doctor did not even advise for X-ray. In fact, the death of the

deceased should have been ascribed to medical negligence.

13. On the other hand, learned counsel appearing for the

State of Jammu & Kashmir, while supporting the judgment of the

High Court, submitted that there is enough material on record to

prove the guilt of the accused which is duly supported by the

evidence of witnesses and corroborated by the medical evidence.

Immediately after the occurrence, the deceased personally visited

the police station and apprised under what circumstances the

accused attacked him. Even within three hours after the 10

occurrence, the I.O. recorded the statement of injured victim

(deceased) when he was sent to the hospital for treatment where the

deceased had further explained to the I.O. in detail about the

altercation took place during the day in connection with the

financial transaction for which the accused was a guarantor. When

there is direct evidence available on record in the form of statement

of the deceased himself and the statement of the eyewitness Sajad

Ahmed—father of the deceased (PW9), prosecution is no longer

burdened with proving motive. At the same time, it is also

immaterial to examine all the witnesses who carried the injured to

the hospital. Similarly, on the advice of Ali Mohammad (PW3) to

inform about the assault to police, when the deceased hurriedly

reached the police station, his focus would naturally be limited only

to the extent of informing the police about how he got injured and

to get immediate medical assistance, and it shall not be expected

from a seriously injured person to narrate whole episode at that

point of time. In such circumstances, the High Court has rightly

assessed the incriminating facts and circumstances and by a

prudent judgment, reversed the order of acquittal into conviction for

which the accused—appellant was liable as he had made an 11

inhuman attack on the deceased merely for demanding to pay the

money for which he stood as a guarantor.

14. Having heard the learned counsel on either side, after

going through the material available on record, we would like to

deal with the contentions one after the other. The first and foremost

contention, the learned senior counsel appearing for the

accused-appellant advanced is with regard to the credence to be

attached to the FIR No. 53 of 2006 registered on 18.5.2006, we find

from the material on record that soon after the occurrence, the

deceased as well as his father—Sajad Ahmed (PW9) rushed to the

clinic of Ali Mohammad (PW3) for first aid, then on his advice they

went to the police station at about 8.45 p.m. and lodged an oral

complaint. Based on the same, FIR No. 53/2006 was registered and

investigation has been entrusted to Ved Raj 185, Head Constable.

This fact is affirmed by the testimonies of father of the deceased

(PW9), Ali Mohammad (PW3) and PW14—Nissar Ahmed, I.O.

According to PW3, on the day of occurrence, the deceased and his

father along with 2-4 persons visited his clinic seeking treatment to 12

the injured/deceased whereupon without providing any treatment,

he advised them to go to the police station at first instance.

15. PW14—Nissar Ahmed, I.O. stated that the oral report was

written by munshi and he had put his signature on it (Parcha-53).

After completing that formality, he assigned the investigation to

Hawaldar Ved Raj. Then at the first instance, he had sent the

injured to hospital, and later on he visited the injured at about 11

p.m. in the hospital. Whereupon finding his condition to be serious,

he took up the investigation and recorded the statement of injured

and added offence under Section 307, RPC. He specifically

mentioned that the statement recorded under Section 161, Cr.P.C.

was not in his own handwriting but he has affixed his signature on

it. In our opinion, there is no doubt that the FIR was lodged in this

case on the basis of the oral complaint made by the deceased at the

police station which is a reliable document and made soon after the

incident. Time and again this Court has illustrated that the first

information report is not an encyclopaedia. It is not necessary that

it should contain each and every detail concerning the offence at

the time of lodging of FIR. Here in the present case, the informant 13

who had received a severe head injury and accompanied by his

father (PW9), went to the clinic of PW3 and later to the police

station, would have been under great tension. Their mental

condition in such a situation can be visualised. In such a state of

mind, failure on their part to disclose the entire sequence of events

in the first information report is neither unnatural nor fatal to the

case of the prosecution. The trial Court has misconstrued the two

statements of the deceased, one given at the police station

immediately after the occurrence and the other, at the hospital

while his condition was deteriorating. We are of the view that the

subsequent statement of the deceased at the hospital as recorded

by the I.O. is duly corroborated by the evidence of PW9 and

absolutely there is no reason to disbelieve the same and the

contention in this regard is meritless.

16. Another argument advanced is that there was no motive

to commit the offence and in the absence of strong motive, the

appellant cannot be held guilty under Section 302, RPC. In the

present case, motive can be traced from the evidences produced by

the prosecution with regard to the prior incident that took place 14

between the deceased and accused in connection with payment of

money over a transaction where the accused stood as a guarantor.

Because of the earlier scuffle, the subsequent incident has occurred

in which the accused hit the deceased with an iron rod due to

which the deceased lost his life. It is appropriate to observe that in

Halsbury’s Laws of England, 3rd Edition, with regard to ‘motive’, it is

stated that “the prosecution may prove, but it is not bound to prove

the motive for a crime”. ‘Motive’ is an emotion which compels the

person to do a particular act. But in all the cases, it will be very

difficult for the prosecution to prove the real motive. Motive is a

double edged weapon when there is a direct and reliable evidence

available on record, motive loses its importance. In a case of

circumstantial evidence, motive assumes greater importance than

in the case of direct evidence. In a case of direct and compelling

evidence, even assuming that no motive is attributed, still the

prosecution version has to be examined. As regards to the

importance of existence of motive in a criminal case, here it is

worthwhile to look at the ratio laid down by this Court in Shivaji

Genu Mohite v. State of Maharashtra, AIR 1973 SC 55: 15

“In case the prosecution is not able to discover an impelling motive, that could not reflect upon the credibility of a witness proved to be a reliable eye-witness. Evidence as to motive would, no doubt, go a long way in cases wholly dependent on circumstantial evidence. Such evidence would form one of the links in the chain of circumstantial evidence in such a case. But that would not be so in cases where there are eye-witnesses of credibility, though even in such cases if a motive is properly proved, such proof would strengthen the prosecution case and fortify the court in its ultimate conclusion. But that does not mean that if motive is not established, the evidence of an eye-witness is rendered untrustworthy”.

17. In the light of the above, we have to examine whether the

prosecution was successful in proving the motive and what is the

evidence available on record to prove the alleged act of the accused.

In the instant case, according to PW9, the deceased had supplied

some G.I. tin sheets to one Gias-ud-Din and the accused stood as

guarantor for its payment. On the day of occurrence, when the

deceased demanded to pay the money from the accused, he got

annoyed and caught hold of the neck of the deceased and started

beating him by which some bruises also appeared on the right side

of his neck. At that point of time, Farid Iqbal (PW1), Amzad Hanif 16

(PW12) and Abid Hussain (PW10) were present there and separated

them. The accused then threatened the deceased that he would see

him anytime. After the closure of shop, when deceased was going

home along with his father, on their way the accused holding an

iron rod in his hands, appeared from opposite direction, intercepted

their way and abused them. When they moved forward, the

accused hit the deceased on his head with the rod due to which he

fell down with bleeding. When PW9 responded to the cry of his son,

the accused disappeared from the scene. Thereafter they went to a

local doctor (PW3) for first aid and then reported the matter at

police station.

18. It is also evident from the record that the iron rod of 3

feet length and 8 centimeter circumference, used as weapon of

offence was recovered by the police at the instance of the accused

vide Ext. PW-MH I on 21.5.2006. The evidence of Mohd. Hafeez

(PW2) and Abid Hussain (PW10) also corroborate the testimony of

PW9 and prove the attack as PWs 2 & 10 having heard the same

from the deceased himself. PW10 has categorically deposed to have

witnessed the scuffle between the accused and deceased at the 17

latter’s shop in the daytime, and also the threat given by the

accused. He further stated that the deceased was taken to the

hospital on his motor cycle and he accompanied the deceased

throughout till the last rites of the deceased. PWs 2 and 10 further

stated that they have also witnessed the recovery of weapon of

offence (iron rod) at the instance of accused, as the weapon was

recovered by the police in their presence. The said recovery of

weapon in the presence of PWs 2 & 10 and their depositions would

therefore corroborate and strengthens the case of prosecution.

19. We have also given our precise consideration to the

evidence of Dr. Raj Kumar—PW 13 who conducted postmortem on

the body of the deceased on 19 th May, 2006. The postmortem report

(Annexure P/2) shows that the deceased sustained the following

injuries:

1. Lacerated wound bone deep 1.5 cm x 0.25 cm on left frontal parietal region (Stitched).

2. Three linear scratch marks on right side of neck each ½ cm. in length.

On internal examination, the Doctor found

1. Linear left temporal frontal region 18

2. Extradural haematoma on left lamprey parietal region

3. Meiurages over left temporal lobe torn

4. Underlying left temporal parietal lobe lacerated

The Doctor opined that the cause of death was head injury resulted

by a blunt object within the duration of 12 hours. It was specifically

deposed by the Doctor in his evidence that the injuries found on the

body of the deceased were sufficient to cause death. It was further

revealed that while undergoing initial treatment at the hospital, the

deceased narrated to him that when he was going towards his

home, someone had assaulted. In his cross examination, the Doctor

made it clear that when the deceased was kept in observation, he

was in full senses and a specialist surgeon was also called.

Ambulance was also provided to shift the patient to GMC, Jammu

for providing better treatment. He could not detect the fracture of

left frontal parietal bone initially due to non-availability of X-ray,

but even if it was detected, it could be fatal, but in some cases if

specialized treatment is provided life could be saved. In our

considered view, the postmortem report and the evidence of Dr. Raj

Kumar (PW13) fully corroborates with the evidence of PW9. 19

20. Considering the evidence of other prosecution witnesses,

we find that Farid Iqbal (PW1), an independent witness, proved the

scuffle that took place at the shop of the deceased, and the angered

accused admonishing and threatening the deceased that he will see

him anytime. PW4—Nazir Ahmed, deposed that police had taken his

signatures at the time of postmortem on blank paper. However, he

proved to have received the dead body of the deceased (Ext.

PW-NH). PW5—Riyaz Ahmed also while proving the receipt of dead

body of the deceased, deposed that 20-25 days after the death of

deceased, police seized a register from the shop of deceased, to

which he was the witness. PW7—Mohammad Ramzan stated that

when he visited the hospital in the year 2006, the clothes were put

off from the body of the deceased in his presence. Accordingly he

witnessed the seizure of clothes of the deceased and put his

signature on the seizure memo (Ext. PW-MR). Mohd. Saleem (PW8)

also deposed that police seized the clothes of the deceased and he

had put his signature on the seizure memo. PW11—Ishteyaq Ahmed

and PW12—Amjad Hanif also supported the prosecution case in

toto.

20

21. Upon considering the evidence of defence witness Jan

Mohd. (DW1), it appears that at the relevant time he was working as

ASI, he can very well write and read Urdu, whereas the I.O. (PW14)

could not write Urdu. Therefore, on the directions of I.O., he

prepared exhibits such as site plan (Ex. PW NA), seizure memo (Ex.

PW SH II), Fard Inkshaf (Ex. PW NH), Fard Baramdgi (Ex. PW NH I),

Fard Suprdnama (Ex. PW SH III), Fard Jama Talashi (Ex. PW NAV)

and statements of witnesses, in his own handwriting. In his

cross-examination, it has been revealed that he is a distinct relative

to the accused and educated only up to middle standard.

Investigation has not been carried out by him, but only on the

instructions of I.O. he drafted the memos wherein his integrity

remained doubtful as he tried to alter the prosecution case. In such

a case, we cannot give any weightage to his deposition.

22. It was contended that the accused was not at all a

guarantor to the alleged transaction and he had been unnecessarily

implicated in this case. In our view, there is no need for this Court

to go into the roots of the financial transaction to find out whether

the deceased, a smalltime merchant of hardware items, kept his 21

account books in proper order or not and who is debtor and who is

guarantor. Our concern is to see whether the accused has

committed the overt act that led to the death of deceased and

whether the accused is liable to be punished in accordance with

law. The trial Court appears to have misguided itself in appreciating

the evidence on record and acquitted the accused by ignoring the

material and legal aspects surrounding the case.

23. In view of the above discussion, we are of the considered

view that the direct oral evidence available on record coupled with

the medical evidence, points at the guilt of the accused and not

proving the motive for commission of the offence lost its significance

in the facts of the case.

24. The learned senior counsel submits that in the present

case, according to the prosecution, Sajad Ahmed, father of the

deceased (PW9) was the only person who was present at the scene

of offence at the time of occurrence. The entire case, therefore,

depends on the veracity of his evidence. PW9, being father of the

deceased, the appellant—accused had naturally made the allegation

that he is an interested witness and therefore his evidence is not 22

reliable. We are not able to appreciate such contentions. This Court

considered the aspect of truthfulness of an interested witness in

several cases. In Dalip Singh & Ors. v. State of Punjab, (1954) 1

SCR 145 it is observed:

“Ordinarily, a close relative would be the last to screen the real culprit and falsely implicate an innocent person. It is true, when feelings run high and there is personal cause for enmity, that here is a tendency to drag in an innocent person against whom a witness has a grudge along with the guilty, but foundation must be laid for such a criticism and the mere fact of relationship far from being a foundation is often a sure guarantee of truth”.

25. In Masalti v. State of U.P., (1964) 8 SCR 133 this Court

observed:

“There is no doubt that when a criminal Court has to appreciate evidence given by witnesses who are partisan or interested, it has to be very careful in weighing such evidence. Whether or not there are discrepancies in the evidence; whether or not the evidence strikes the Court as genuine; whether or not the story disclosed by the evidence is probable, are all matters which must be taken into account.

But it would, we think, be unreasonable to contend that evidence given by witnesses should be discarded only on the ground that it is evidence of partisan or interested witnesses. Often enough, where factions prevail in villages and murders are committed as a result of enmity between such 23

factions, criminal Courts have to deal with evidence of a partisan type.

The mechanical rejection of such evidence on the sole ground that it is partisan would invariably lead to failure of justice”.

26. There is no proposition in law that relatives are to be

treated as untruthful witnesses. On the contrary, reason has to be

shown when a plea of partiality is raised to show that the witnesses

had reason to shield actual culprit and falsely implicate the accused

[See : Harbans Kaur & Anr. v. State of Haryana, 2005 CriLJ

2199].

27. If the evidence of an eyewitness, though a close relative of

the victim, inspires confidence, it must be relied upon without

seeking corroboration with minute material particulars. It is no

doubt true that the Courts must be cautious while considering the

evidence of interested witnesses. In his evidence, the description of

the incident by PW9 clearly portrays the way in which the accused

attacked the deceased causing fatal head injury as propounded by

the prosecution. The testimony of the father of deceased (PW9) must

be appreciated in the background of the entire case. 24

28. In our opinion, the testimony of PW9 inspires confidence,

and the chain of events and the circumstantial evidence thereof

completely supports his statements which in turn strengthens the

prosecution case with no manner of doubt. We have no hesitation

to believe that PW9 is a 'natural' witness to the incident. On a

careful scrutiny, we find his evidence to be intrinsically reliable and

wholly trustworthy.

29. The argument that the evidence of PW9 cannot be

weighed with as he was walking one meter ahead of the deceased at

the time of incident and he cannot say that it was accused who hit

the deceased with iron rod, does not sound correct and it cannot be

given any weight considering the circumstance as a whole. It was

also contested that the eyewitness did not suffer any injury. It is not

necessary that to prove an offence, every eyewitness who had seen

the accused hitting the victim should also receive injuries. Such

contentions are meritless and do not fall for consideration.

30. When analyzing the evidence available on record, Court

should not adopt hyper technical approach but should look at the

broader probabilities of the case. Basing on the minor 25

contradictions, the Court should not reject the evidence in its

entirety. Sometimes, even in the evidence of truthful witness, there

may appear certain contradictions basing on their capacity to

remember and reproduce the minute details. Particularly in the

criminal cases, from the date of incident till the day they give

evidence in the Court, there may be gap of years. Hence the Courts

have to take all these aspects into consideration and weigh the

evidence. The discrepancies and contradictions which do not go to

the root of the matter, credence shall not be given to them. In any

event, the paramount consideration of the Court must be to do

substantial justice. We feel that the trial Court has adopted an

hyper technical approach which resulted in the acquittal of the

accused.

31. The learned counsel strenuously submitted that in an

appeal against acquittal, the scope of interference by the appellate

Court is very narrow and the High Court erred in interfering with

the well considered judgment of acquittal. It is appropriate to refer

Padam Singh v. State of U.P., (2000) 1 SCC 621, in which while 26

explaining the duty of the appellate court, this Court has expressed

thus:

“It is the duty of an appellate Court to look into the evidence adduced in the case and arrive at an independent conclusion as to whether the said evidence can be relied upon or not and even if it can be relied upon, then whether the prosecution can be said to have been proved beyond reasonable doubt on the said evidence. The credibility of a witness has to be adjudged by the appellate court in drawing inference from proved and admitted facts. It must be remembered that the appellate court, like the trial court, has to be satisfied affirmatively that the prosecution case is substantially true and the guilt of the accused has been proved beyond all reasonable doubt as the presumption of innocence with which the accused starts, continues right through until he is held guilty by the final Court of Appeal and that presumption is neither strengthened by an acquittal nor weakened by a conviction in the trial court.

32. The power of the appellate Court in an appeal against

acquittal is the same as that of an appeal against conviction. But,

in an appeal against acquittal, the Court has to bear in mind that

the presumption of innocence is in favour of the accused and it is

strengthened by the order of acquittal. At the same time, appellate

Court will not interfere with the order of acquittal mainly because

two views are possible, but only when the High Court feels that the

appreciation of evidence is based on erroneous considerations and 27

when there is manifest illegality in the conclusion arrived at by the

trial Court. In the present case, there was manifest irregularity in

the appreciation of evidence by the trial Court. The High Court

based on sound principles of criminal jurisprudence, has interfered

with the judgment of acquittal passed by the trial Court and

convicted the accused as the prosecution was successful in proving

the guilt of the accused beyond reasonable doubt.

33. In view of the foregoing discussion and a conspectus of

all the material would pave way to conclude that the prosecution

has proved the case beyond reasonable doubt and the appeal

preferred by the accused is bereft of any substance and accordingly

dismissed.

…………......................J. (N.V. RAMANA)

..................................J. (S. ABDUL NAZEER)

NEW DELHI, MAY 15, 2018.