Lunaram vs Bhupat Singh & Ors

Lunaram ...Appellant

Versus

Bhupat Singh and Ors. ...Respondents

JUDGMENT

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Division

Bench of the Rajasthan High Court at Jodhpur directing acquittal of the

respondents 1, 2 and 3. The learned Special Judge, SC and ST, Prevention

of Atrocities Case, Balotara had convicted the respondents and sentenced

them which was set aside by the High Court as noted above.

3. Background facts in a nutshell are as follows:

Complainant Luna Ram lodged an FIR in Police station, Bakhasar at

about 8.30 a.m. On 31.08.1998, complainant reported that almost two

months back he alongwith Sugala, Tila and Lila went to Dhanera, Gujarat,

for a job. On 30.08.1998, they came to Sanchore in a Jeep and, thereafter, by

another Jeep, they went to village Madhav. At around 7.15 P.M., they

boarded a Bus from Village Madhav and reached Sata at around 9.30 P.M.

From Sata, accused Bhupat Singh, Amrit @ Amiya, Ganu Singh @ Ganpat

Singh, Pratap Singh and Kamiya boarded the bus. After just leaving village

Sata, Bhupat Singh, Rai Singh, Pratap Singh and Ganu Singh came near

their seat, as they all four were sitting on the last seat of the bus. Rai Singh

stated that they will kill all the four. Bhupat Singh caught Lila by holding

his neck and, thereafter, Rai Singh, Pratap Singh and Ganu Singh threw Lila

out of bus. Complainant hid himself out of fear. Thereafter, Sugala and Tila

were also thrown out of bus as when he left the bus at village Bakhasar,

Sugala and Tila were not found in the bus. The reason of fight by the

accused was also stated to be that almost 10-15 days back, buffaloes

belonging to Pratap Singh and Ganu Singh damaged crop of Nagji and, at

that time, when Ladha was taking those buffaloes, then Rai Singh had

2 beaten Ladha. The complainant further stated that he reached his place at

about 12 to 1 O'clock in night and stated all those facts to Nagji and

following morning, it was found that Lila died, whereas Tila and Sugala

received injuries. On the basis of the report, FIR was lodged under Sections

302, 307 and 352, 323 read with Section 34 of the Indian Penal Code, 1860

(in short the `IPC') and Section 3(2)(5) of the Scheduled Castes and

Scheduled Tribes (Prevention of Atrocities) Act (in short `SC/ST Act').

The Police, thereafter, conducted investigation and, thereafter, filed challan

in the Court of Chief Judicial Magistrate, Barmer, from where, the matter

was committed to the trial Court. Charges were framed against four accused

under Sections 302, 307, 323 read with Section 34 of IPC and Section 3(2)

(5) of SC/ST. The charge was read over to the accused who denied the

charge and claimed trial.

At the trial, 27 witnesses were produced and thirty-six documents

were exhibited by the prosecution to prove their case, whereas, in defence,

statement of one witness was recorded and eight documents were produced.

Statements of the accused were recoded under Section 313 of the Code of

Criminal Procedure Code, 1973 (in short the `Code').

3 The learned trial Court convicted accused Bhupat Singh, Ral Singh

and Amiya under Section 302/34 of IPC and Section 3(2)(5) of SC/ST Act.

They were sentenced to life imprisonment and fine of Rs.500/- each, in

default of payment of fine, to further suffer one month's imprisonment.

They were also convicted under Section 323 IPC, and sentenced to one

month's imprisonment and a fine of Rs.50/- each, in default of payment of

fine, to further suffer one week imprisonment. These accused were,

however, acquitted from Section 307 read with Section 34 IPC. Accused

Dashrath Giri @ Baba was acquitted completely.

The High Court noted that the evidence of PWs 9, 10 and 11 did not

have any credibility. It was full of omissions and contradictions which

affected the credibility of their evidence. Contradictions and omissions were

held to be not of any minor nature.

4. In support of the appeal, learned counsel for the appellant submitted

that the evidence of PWs 9, 10 and 11 should not have been discarded by

the High Court, particularly as they were injured eye witnesses.

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5. Learned counsel for the accused on the other hand supported the

judgment, particularly with reference to the evidence of doctor who stated

that the scenario as described by the prosecution witnesses was not

physically and practically possible.

6. There is no embargo on the appellate court reviewing the evidence

upon which an order of acquittal is based. Generally, the order of acquittal

shall not be interfered with because the presumption of innocence of the

accused is further strengthened by acquittal. The golden thread which runs

through the web of administration of justice in criminal cases is that if two

views are possible on the evidence adduced in the case, one pointing to the

guilt of the accused and the other to his innocence, the view which is

favourable to the accused should be adopted. The paramount consideration

of the court is to ensure that miscarriage of justice is prevented. A

miscarriage of justice which may arise from acquittal of the guilty is no less

than from the conviction of an innocent. In a case where admissible

evidence is ignored, a duty is cast upon the appellate court to re-appreciate

the evidence where the accused has been acquitted, for the purpose of

ascertaining as to whether any of the accused really committed any offence

or not. (See Bhagwan Singh v. State of M.P, 2003 (3) SCC 21). The

5 principle to be followed by the appellate court considering the appeal

against the judgment of acquittal is to interfere only when there are

substantial reasons for doing so. If the impugned judgment is clearly

unreasonable and irrelevant and convincing materials have been

unjustifiably eliminated in the process, it is a substantial reason for

interference. These aspects were highlighted by this Court in Shivaji

Sahabrao Bobade v. State of Maharashtra (1973 (2) SCC 793), Ramesh

Babulal Doshi v. State of Gujarat (1996 (9) SCC 225), Jaswant Singh v.

State of Haryana (2000 (4) SCC 484), Raj Kishore Jha v. State of Bihar

(2003 (11) SCC 519), State of Punjab v. Karnail Singh (2003 (11) SCC

271), State of Punjab v. Phola Singh (2003 (11) SCC 58), Suchand Pal v.

Phani Pal (2003 (11) SCC 527) and Sachchey Lal Tiwari v. State of U.P.

(2004 (11) SCC 410).

7. In Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC 415),

the following general principles regarding powers of the appellate court

while dealing with an appeal against an order of acquittal were culled out:

(1) An appellate court has full power to review, reappreciate

and reconsider the evidence upon which the order of acquittal is

founded.

6 (2) The Code puts no limitation, restriction or condition on

exercise of such power and an appellate court on the evidence before it

may reach its own conclusion, both on questions of fact and of law.

(3) Various expressions, such as, "substantial and compelling

reasons", "good and sufficient grounds", "very strong circumstances",

"distorted conclusions", "glaring mistakes", etc. are not intended to

curtail extensive powers of an appellate court in an appeal against

acquittal. Such phraseologies are more in the nature of "flourishes of

language" to emphasise the reluctance of an appellate court to interfere

with acquittal than to curtail the power of the court to review the

evidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind that in case

of acquittal, there is double presumption in favour of the accused.

Firstly, the presumption of innocence is available to him under the

fundamental principle of criminal jurisprudence that every person shall

be presumed to be innocent unless he is proved guilty by a competent

court of law. Secondly, the accused having secured his acquittal, the

presumption of his innocence is further reinforced, reaffirmed and

strengthened by the trial court.

7 (5) If two reasonable conclusions are possible on the basis of the

evidence on record, the appellate court should not disturb the finding of

acquittal recorded by the trial court.

8. The High Court has noted that the prosecution version was not clearly

believable. Some of the so called eye witnesses stated that the deceased

died because his ankle was twisted by an accused. Others said that he was

strangulated. It was the case of the prosecution that the injured witnesses

were thrown out of the bus. The doctor who conducted the post mortem and

examined the witnesses had categorically stated that it was not possible that

somebody would throw a person out of the bus when it was in running

condition. Considering the parameters of appeal against the judgment of

acquittal, we are not inclined to interfere in this appeal. The view of the

High Court cannot be termed to be perverse and is a possible view on the

evidence.

9. The appeal is dismissed.

...................................J. (Dr. ARIJIT PASAYAT)

8 ....................................J. (ASOK KUMAR GANGULY)

New Delhi, February 27, 2009

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