Mia & Jinu Mia & Ors Vs. State of Assam  INSC 931 (12 December
PUNCHHI, M. SRINIVASAN
main contention of the appellants is that the High Court has chosen to reverse
the order of acquittal passed by the trial judge when the latter is not
perverse or wholly unreasonable. In support of the same the decision in Tota
Singh & Anr. Versus State of Punjab (1987) 2 SCC 529 is cited. A Bench of two judges has held that in an
appeal against acquittal, the jurisdiction of the appellate court is
circumscribed by the limitation that no interference is to be made with the
order unless the approach made by the lower court to the consideration of
evidence is vitiated by some manifest illegality or the conclusion recorded by
the court below is such which could not have been possibly arrived at by any
court acting reasonably and judiciously and is liable therefore to be characterised
as perverse. It has also been held that where two views are possible and the
view taken by the court below is plausible, the appellate court cannot legally
interfere with an order of acquittal even if it is of the opinion that the view
taken by the trial court is erroneous.
power of the appellate court in an appeal against an order of acquittal was the
subject of a decision of three member Bench of this court as early as in Sanwat
Singh & Ors. Versus State Of Rajasthan AIR 1961 S.C. 715. The Bench considered the matter in detail and said:-
"The foregoing discussion yields the following results : (1) an appellate
court has full power to review the evidence upon which the order of acquittal
is founded : (2) the principles laid down in Sheo Swarup's case, 61 Ind App
398: (A)R 1934 PC 227 (2) afford a correct guide for the appellate court's
approach to a case in disposing of such an appeal; and (3) the different
phraseology used in the judgments of this court, such as, (i) "substantial
and compelling reasons", (ii) "good and sufficiently cogent
reasons", and (iii) "strong reasons", are not intended to
curtail the undoubted power of an appellate court in an appeal against
acquittal to review the entire eavaidence and to come to its own conclusion;
but in doing so it should not only consider eavery matater on record having a
bearing on the questions of fact and the reasons given by the court below in
support of its order of acquittal in its arriving ata a conclusion on those
facts, but should also express those reasons in its judgment which lead it to
hold that the acquittal was not justified".
that case, the court also dealt with the scope of Article 136 of the
constitution and pointed out that the practice of the court is not to interfere
on questions of fact except in exceptional cases when the finding is such that
it shocks the conscience of the court.
Recently this Bench had occasion to rofer to the ruling in Betal Singh Versus
State of M. P. (1996) 8 S.C.C. 205 and point out that the High Court has full
powers i an appeal to review the entire evidence and come to its own conclusion
unless the matter depended on the demeanour of the witness.
judgment dated 9.12.1997 in Civil Appeal No. 888 of 1996 Rajendra Mahton versus
State of Bihar]
Bearing the above principles in mind, we shall now consider the facts of the
present case. The prosecution case was the following:
2.6.1987 after mid night the appellants entered the bed room in which Chand
Mia, the deaceased was sleeping with his wife Jamuna Khatun, the complainant
and killed him by hacking him with ram dao and other dangerous weapons, When
the complainant tried to save her husband, she suffered some injuries. She went
to the police station situated at a distance of 4 kilo metres by walk and
presented a complaint written with the help of PW 4, a petition-writer around 2.15 A.M. She had mentioned the names of the appellants in the
P.I.R. She was sent to a dispensary near the police station for treatment for
her injuries. After investigation, the appellants stood charged with offences
under Section 324/459/302/34 I.P.C.
prosecution examained nine witnesses. The doctor who treated the complainant
for her injuries was PW2. The complainant was examined as PW 3 and she was the
only eye witness. PW 7 was a son of the deceased and the complainant who was
sleeping in the same house in another room. The trial court acquitted the
accused. The reasons given by the trial court were as follows:
The evidence of PW3 cannot be belieaved as her version regarding a lamp in the
bedroom at the time of occurrence was discrepant. She had described it as 'chaki'
at one time and 'lamp' at another and it was not noted by the I.O. when he
prepared the sketch of the place of occurrence.
PW3 had not satisfactorily proved that she suffered injuries at the time of
eight year old son who was sleeping in the same room in another bed was not
examined. Some persons who came to the place of occurrence immediately
thereafter and some persons named in the chargesheet were not exained.
There were proceedings under Section 107 Crl. P.C. against some of the
appellants at the instance of the deceased and thus the complainant has a
motive to implicate them falsely.
The evidence of PW 4 showed that he prepared a written complaint in the first
instance which contained several other names as accused but it was torn and the
complaint which was lodged as F.I.R. was prepared.
High Court considered all the above reasons and held them to be unsustainable.
The High Court also considered the evidence on record and found that there was
no reason to disbelieave the evidence of PW3 who was the eye witness. It was
held that the findings of the Sessions Judge were unreasonable and could not be
sustained. Therefore the High Court convicted the appellants under Sections
302/34 and sentenced them to rigorous imprisonments for life, besides a fine of
Rs. 300/- each. The appellants were also convicted under Section 324 but did
not pass any separate sentence.
Learned counsel for the appellants laid stress on the reasoning of the trial
court and contended that the High Court ought not to have interferred with the
same. Before considering the contentions raised by him, it should be pointed
out that the trial court has only repeated the arguments of Mr. Sharma, one of
the advocates for the accused more and not analysed the matter itself. In
several paragraphs the trial court has only referred to what Mr.
pointed out and left it there without considering the relevant evidence on its
own. In any event, the trial court set out the crucial aspect of the matter in
the following words:- "The case, undoubtedly is a peripheral one, in the
sense that if we accept the story of identification of the accused persons o
the basis of the statements made by the solitary eye-witness P.W. 3 Mst. Jamuna
Khatun, we must hold the accused persons guilty of the charges, otherwise we
have no legal right to send them for life long incarceration or to the gallows,
for, the charges inter alia also include Section 302/34 I.P.C."
the trial court chose to dis-believe PW3 and held against the prosecution. The
High Court has accepted the evidence of PW 3 as it did not find any infirmity
Learned counsel for the appellants has contended that PW 3's evidence is
unbelievable in as much as she has given different versions with regard to the
existence of lamp in the room at the time of occurrence. He has made much of
her using the words 'chaki' and 'lamp' alternatively. It is his argument that a
'lamp' is different from 'chaki' and neither was noticed at the premises soon
after the occurrence.
to learned counsel a lamp was purchased and handed over to the police later on
the next day and that this circumstance goes a long way to make the prosecution
case doubtful. There is no basis in the evidence for this argument. The
discrepancy, if at all is insignificant. The High Court has found that the lamp
was seized by police on the next day. It is quite natural that a lamp or chaki
is kept in the room where children are sleeping. it is the evidence of PW 3 that
her children were suffering from dysentry and she had to take them frequently
outside the room for making them attend to the calls of nature and for that
reason she had kept a lamp on the table in the room. In the circumstances of
the case when the accused persons entered that room, it would have been easier
for the inmates of the room to identify the new entrants as the former were
accustomed to the dim light at that time inside the room. If the accused who
had come from outside could identify the victim, whom they hacked with the
deadly weapons, there would have been no difficulty for PW 3 in identifying the
accused. We do not find anything wrong in her evidence which makes it
incredible or unacceptable.
is next contended that the injuries suffered by her are superficial and could
not have been caused by the assailants of her husband. It is argued that she
had clasped her husband and if that was true, she would have suffered some
serious injuries. There is no merit in this contention.
assailants were only keen on attacking the deceased and not PW 3. The injuries
on her body depended on the exact position in which she was holding her
husband. There can be no doubt that she did suffer injuries and she had been
sent to the hospital near the police station immediately, after she reported
the occurrence at the police station. PW 2, the doctor examined her and noticed
the injuries. He has entered the same in the Injury Register. There were four
injuries on her body and the doctor found that the injuries were all one to two
hours old caused by sharp weapon. There is no cross- examination of the said
doctor. It is stated that the injury report was obtained from the doctor only
on 9.7.1987 i.e.
more than a month. Nothing turns on that circumstance as the evidence makes out
that the doctor examined her soon after the occurrence on 3.6.1987 itself and
entered the injuries in the injury register. The report given by him was only
copied from the injury registrer. Hence, There is no merit in this contention.
is next argued that two statements of complaint were prepared. In the first,
names of about 13 or 14 persons were mentioned and the said statement was torn
off. A fresh one was drawn and in the second statement the appellants were
implicated. For this purpose reliance is placed on the evidence of PW 4. The
said witness was declared hostile in the trial court. The High Court has
considered his evidence in detail and found that his version that two
statements were prepared and the first was torn off is not acceptable.
not find any error in this view taken by the High Court. The solitary evidence
of PW 4 cannot be accepted t hold that there were two written complaints and
the one prepared earlier was torn off.
is next argued that PW 3 had motive to implicate the appellants as there were
proceedings under Section 107 against the appellants at the instance of the
deceased. We do not accept this contention. In our opinion the evidence of PW 3
cannot be rejected on the said ground. Soon after the occurrence a son of the
deceased who was sleeping in another room of the same house rushed to the room
where his parents were sleeping. He was informed by PW3 about the assailants.
It cannot be imagined that as soon as the occurrence took place, she thought of
implication the appellants falsely. Those persons were known to her for a long
time and PW 7 also, knew them already. Thus the evidence of PW 7 corrborates
that of PW 3 and the High Court has rightly accepted the same.
is next contended that other persons mentioned in the chargesheet were not
examined by the prosecution. It is also argued that an eight year old son of
the deceased who was sleeping in the same room was not examined. Raliance is
placed upon the judgment in The State of U.P. Versus Hari Prasad & Ors. (1974)
3.S.C.C. 673. It was held on the facts of that case that failure of prosecution
to examine persons mentioned in the FIR was detrimental to the prosecution. The
question before us in the present case is only whether evidence of the eye
witness has to be accepted or not. Once it is found by the High Court that the
evidence of PW3 is acceptable, there is no merit in the contention that other
persons have not been examined.
is next argued that there is a considerable delay in forwarding the report to
the Magistrate from the Police Station. We find that the report was forwarded
on the next day i.e. 4.6.87. In the facts and circumstances of the case we do
not find that there is any delay which could create a doubt in the case of the
prosecution. Reliance is placed by the learned counsel for the appellant in Arjun
Marik & Ors.
State of Bihar, 1994 Supp. (2) S.C.C. 372 while taking into account several
circumstances which vitiated the prosecution case the Court referred also to
the delay of 3 days in forwarding the report to the Magistrate. Even in the
said case it is pointed out that quite often there are valid reasons for the
delay in the despatch of the FIR and it is not always a circumstance on the
basis of which the entire prosecution case may be said to be fabricatred but it
all depends upon the facts and circumstances of each case where the
circumstance of delay may read to serious conclusions.
present case we find that the delay of one day in forwarding the report does
not vitiate the prosecution case.
have gone through the entire record and satisfied ourselves that the reversal
of the order of acquittal by the High Court is justified. The conclusion of the
trial court has been rightly found to be unreasonable. In the result the appeal
fails and is hereby dismissed.