Sukliya vs State Of M.P.

1. The appellant and his son, Kadu were charged for the offence punishable under Section 302/34 I.P.C. for allegedly committing the murder of Jadu. The trial court acquitted the appellant but convicted the co-accused, son of the appellant. In the acquittal appeal filed by the state, the judgment of acquittal passed in favour of the appellant was set aside vide the judgement impugned in this appeal.

2. According to the prosecution, on 29th May, 1992 Vestia, PW-6 and his son Jadu (deceased) had gone to attend the marriage of Nanli, the daughter of Kekadiya, at village Mordhi where the appellant and his son had also come. When, after attending the marriage, PW-6 and his son were returning home, they were intercepted by the appellant and his son. The appellant is alleged to have fired gun shot at the deceased and his son Kadu shot arrows. Consequently, Jadu, after receiving the injury, died on the spot. The gun allegedly used by the appellant was recovered but not sent for ballistic expert opinion as to whether it had been fired or not.

3. At the trial, Kekadiya-PW 1, Mangliya-PW 2, Manu-PW 3 and Harsingh-PW 4 who were examined as eyewitnesses turned hostile, Relying upon the testimony of PW-6, the trial court found that no case was found against the appellant and acquitted him, The trial court did not

accept the testimony of PWs 6 and 7 in so far as the involvement of the appellant in the commission of the crime was concerned. It was found that the injuries caused to the deceased allegedly by gun shot were not attributable to the appellant, which probablised that he was not present on spot when the occurrence took place. While deciding the appeal against acquittal, the High Court found that in view of the testimony of PWs 6 and 7, the trial court was not justified in returning the finding of acquittal so far as the appellant is concerned.

4. We have perused the whole of the evidence and are of the opinion that the view taken by the trial court for acquitting the accused cannot said to be highly improbable. From the statements of PWs 6 and 7, it cannot be found that more than one gun shot was fired which hit the deceased. However, injuries Nos. 1 to 5 and 11 noticed on the body of the deceased clearly and unequivocally show that such injuries cannot be caused by one gun shot.

If the accused appellant was alleged to have not fired more than one gun shot, then the injuries found on the person of the deceased cannot be attributed to him. The trial court on appreciation of evidence and noticing other circumstances regarding the recovery of gun, its non-examination by the ballistic expert, non-recovery of pallets and wads on the spot concluded that the appellant was not proved to have committed the crime. The presence of the appellant at the spot was thus not established by the prosecution beyond reasonable doubt.

The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial court. The golden thread which runs through the web of administration of justice in criminal case 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.

5. Without holding that the view taken by the trial court was highly improbable or was based upon inadmissible evidence or ignoring the legal evidence or, was the result of hypothesis and conjectures, the High Court was not justified in setting aside the order of acquittal passed in favour of the appellant.

6. In the facts and circumstances of the case, this appeal is allowed and the judgment impugned is set aside. The appellant shall be set at liberty forthwith if not required in some other case.