Mohd.Akhtar @ Kari vs State Of Bihar .

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

JUDGMENT

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.

Signature Not Verified Digitally signed by CHARANJEET KAUR

2. We are informed that the Appellant Nos. 1, 2 and 4 Date: 2018.12.04 14:41:59 IST Reason:

died during the pendency of these Appeals and so, the 2

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 3

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 4

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 5

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 6

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 7

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 8

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 9

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 10

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 11

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) 12

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 13

(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 14

(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 15

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 16

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.