U.P. Vs. Nandu Vishwakarma & Ors.  INSC 1150 (6 July 2009)
SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 786
OF 2001 State of U.P. .... Appellant Versus Nandu Vishwakarma & Ors. ....
Mukundakam Sharma, J.
This appeal is directed against the judgment and order of
acquittal passed by the High Court of Allahabad whereby and whereunder the High
Court acquitted Nandu Vishwakarma, Kalu and Lalloo from the charges under
Section 302 of Indian Penal Code (hereinafter referred to as `the IPC') read
with Section 34 and also under Section 367 read with Section 34 IPC.
Before dealing with the rival contentions raised on behalf of the
parties and in order to appreciate the said contentions it would be necessary
to state a few facts leading to the registration of the aforesaid criminal
Dangar Yadav, who is the elder brother of informant PW-1 (Prithivi
Pal), and Gujrati Devi (PW-2), wife of the informant are residents of village
Samraha, Police Station Karchana. The respondents who are accused in the
present case are residents of another village namely village Dubawal, Police
Station Sarai Inayat. There is no dispute with regard to the fact that both the
informant side as also the accused are involved in litigation pertaining to
some plots of land in Kachhar village of Leelapur which is a separate village
than the village in which the informant party reside and also from the village
where the accused party reside.
There was an incident of mutual assault (marpit) on 26th February,
1979 at about 12.00 O' clock. It is alleged in the first information report
(for short `the FIR') that the informant Prithivi Pal (PW-1) and his wife
Gujrati Devi (PW-2) were engaged in harvesting their crops in village Kachhar.
noon, the three alleged accused persons namely Nandu Vishwakarma, Kalu and
Lalloo armed with Gandasa, lathi and spear respectively reached the scene of
occurrence and started assaulting Dangar Yadav. Dangar Yadav raised an alarm
whereupon the two witnesses namely Prithivi Pal (PW-1) and his wife, Gujrati
Devi (PW-2), who were present in the vicinity tried to save him but in the
process they were also assaulted by the aforesaid accused persons.
Consequent to the said assault caused by the aforesaid three
accused persons, Dangar Yadav died at the spot and Gujrati Devi (PW-2) also
fell down in the field. An oral report of the incident was lodged at about 5.30
p.m. by Prithivi Pal (PW-1) at Police Station Sarai Inayat. On the basis of the
aforesaid report, an FIR being Crime No. 50 of 1979 was recorded and the
investigation was started by the police. After completion of the investigation
the police submitted the charge-sheet against the respondents herein on the
basis of which charges were framed and they were tried. The respondents pleaded
not guilty and stated that they were falsely implicated in the said case due to
the litigation which is pending between the parties.
In the trial, the prosecution examined a number of witnesses.
After completion of the trial, the learned trial court found all the
respondents guilty of the charges against them and convicted all three of them
for the offence under Section 302 read with Section 34 IPC and also under
Section 367 read with Section 34 IPC and they were sentenced to undergo life
imprisonment for the offence under Section 302/34 IPC and for rigorous
imprisonment for five years under Section 367/34 IPC which was to run
Being aggrieved by the aforesaid judgment and order of conviction
the respondents filed an appeal before the High Court of Allahabad. After
hearing the appeal the High Court passed an order on 24.05.2000 acquitting all
the respondents of the charges under Section 302/34 IPC as also under Section
367/34. While passing the order of acquittal various reasons have been given
and recorded by the High Court
All the aforesaid grounds and the findings recorded by the High
Court are under challenge in this appeal which has been filed by the State. We
have heard Mr. Sahdev Singh, Public Prosecutor appearing for the State of U.P.
Mr. Shree Pal Singh, Advocate appearing for the respondents.
The Public Prosecutor very forcefully submitted that in view of
the clear statement of the eye-witnesses namely Prithivi Pal (PW-1) and Gujrati
Devi (PW-2) in the aforesaid assault and mutual marpit the order passed by the
High Court is not tenable on the face of it and their statement should not have
been disbelieved by the High Court. It was also submitted that the
discrepancies which are referred to by the accused persons are minor
discrepancies which do not in any manner affect the substratum of the
prosecution case. Therefore, the said minor discrepancies should have been ignored
by the High Court. He next submitted that because the 4 deceased had no Gandasa
injury on his body the same would not belie entirely the prosecution's story
particularly in view of the fact that the witnesses have explained that though
the accused persons tried to assault Dangar with Gandasa but the same did not
hit him. He further submitted that the High Court committed a manifest error of
law and facts in holding that probably the occurrence had taken place at night
and that what is put forth by the prosecution as its case is a concocted story.
The aforesaid submissions were strongly refuted by the counsel
appearing for the respondents. Having submitted before us that there is a total
contradiction of medical evidence and the ocular evidence it was also submitted
that if Gujrati Devi (PW-2) was injured in the mutual assault (marpit), she
would have been taken to the hospital and admitted thereto when the deceased
was taken to the hospital. But admittedly, she was admitted to the hospital
only on the next day in respect of which also there is some doubt. He further
submitted that in view of the contradictions in the statements of the
witnesses, the prosecution story was rightly disbelieved by the High Court. It
was also submitted by him that if two views are possible to be drawn up from
the same set of facts and the view taken by the High Court is a plausible view,
in that event the said order of acquittal should not be interfered with.
We have considered the aforesaid submissions in the light of the
record of the case and proceed to analyse the same and thereafter giving our
findings and reasons thereon.
Prithivi Pal (PW-1) is the informant/complainant and is the
brother of Dangar Yadav, the deceased whereas Gujrati Devi (PW-2) is the wife
of PW-1. These two witnesses stated that they were assaulted by the respondents
with lathi and Gandasa. The said fact is, however, not mentioned in the FIR.
The incident had taken place in the village Kachhar but neither the informant
party nor the accused are residents of the said village. There is no dispute
that there is some litigation pending between the parties in respect of the
The High Court has found on appreciation of evidence on record
that the accused-respondents had won the case against the deceased from the
court of Deputy Collector whereas the appeal against the same was won by the
deceased. It also transpires from the record that the accused-respondent No. 1
namely Nandu Vishwakarma had obtained a stay in the appeal which was continuing
till the date of occurrence. The informant (PW-1) had two plots in the village
Kachhar. There is no mention in the FIR to indicate in which of the two plots
the alleged incident had taken place.
6 What is
mentioned in the FIR is that the incident had taken place at the disputed land.
The Investigating Officer also could not enlighten and state and clarify in his
deposition in which of the two plots the incident had actually taken place. It
is disclosed from the records that there is some evidence to indicate that the
accused persons are in possession of the land where the incident had taken
The medical examination of Gujrati Devi (PW-2) was conducted on
27th February, 1979 at about 7.15 p.m. which is the next morning of the
incident. Why PW-2 was not brought to the hospital along with Dangar Yadav, the
deceased and why the Investigating Officer did not take any step to get PW-2
admitted to the hospital has not been explained at all in his statement
although he had stated that he has visited the place of occurrence at night. It
is an admitted position that Head Moharrir (PW-5) stated that he did not send
the copy of the checked FIR on 27/28.02.1979 to the Judicial Magistrate. No
thumb impression of the informant was obtained on the FIR or in the Entry made
at the time of the registration of the case. In view of the aforesaid position,
the High Court came to the finding that the FIR of the case was transcribed on
the next date, that is, after the Investigation Officer visited the site and
not at the time when the prosecution alleged to have done.
Evidence of Gujrati Devi (PW-2) was not accepted by the High Court
for various reasons. One of the grounds on which her statement was not accepted
was that she made contradictory statement in the trial in as much as she had
stated at one stage that the Investigating Officer stayed at the spot of
occurrence for two hours after fall of darkness and then again stated that he
stayed there throughout the night. In her deposition she deposed that she reached
Kotwa hospital at about 12.00 p.m. in the night but the injury report prepared
by the hospital indicates that she was medically examined in the morning. The
aforesaid statement of Gujrati Devi (PW-2) is also contradictory to the
statement made by Prithivi Pal (PW-1), her husband. There are many other vital
contradictions in her deposition which are pointed out and noted by the High
Similarly, the deposition of Shiv Murat (PW-3) was also not
believed by the High Court on the ground that his statement is also full of
contradictions. He had stated at one stage in his statement that PW-1 and PW-2
were harvesting the field and cutting the crops but at the later stage he
stated that the deceased was leveling his field for collecting harvesting crop.
If PW-1 and PW-2 were harvesting the crop they were using some instruments and
doing the same with the help of their respective instruments and, therefore,
the evidence of PW-1 and PW-2 that they had 8 no weapons in their hands could
be belied by the aforesaid statement. At another stage he stated that Dangar
Yadav was not leveling the land. His statement is also contradictory in respect
of the alleged use of weapons by the three accused persons when the same is
pitted against the statements of PW-1 and PW-2 in that regard.
The medical report placed before us clearly indicate that the
doctor did not find any Gandasa injury either on the body of the deceased or on
the body of PW-1 and PW-2 who were stated to be injured witnesses. The number
of contradictions, which are referred to by the High Court in its judgment, in
respect of all the witnesses definitely make out a case of plausible view which
could be deduced from the evidence on record. Moreover, the High Court has
given detailed reasons for disbelieving the prosecution case and for acquitting
the accused persons.
It is a settled principle of law that when on the basis of the
evidence on record two views could be taken - one in favour of the accused and
the other against the accused - the one favouring the accused should always be
accepted. This Court in the case of Chandrappa v. State of Karnataka,(2007) 4
SCC 415, at page 432 observed as follows :
"42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while dealing with
an appeal against an order of acquittal emerge:
appellate court has full power to review, reappreciate and reconsider the
evidence upon which the order of acquittal is founded.
Code of Criminal Procedure, 1973 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.
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.
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.
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
In the present case, it is also not clearly established from the
records as to who was in possession of the property in question where the
occurrence 10 had taken place. In view of the aforesaid situation and the two
possible views taken by the courts below - one taken by the trial court and the
other taken by the High Court - and the view taken by the High Court being a
plausible view, we find no ground to interfere with the order of acquittal
passed by the High Court.
Accordingly, this appeal has no merit and is, therefore,
.................................J. (Dr. Mukundakam Sharma)