MUNNI Vs. STATE OF M.P.

JUDGEMENT

(1.) Aggrieved of the divergent finding recorded on the charge by the High Court in exercise of its appellate jurisdiction, setting aside the finding of acquittal recorded by the Trial Court on the charge of murder under Section 302 read with Section 34 of the Indian Penal Code (for short, "IPC") and Section 27 of the Arms Act, the appellant is before this Court.

(2.) Shri Manoj Prasad, learned senior counsel appearing on behalf of the appellant very vehemently contended that the Trial Court despite many prosecution witnesses, except P.W. 1- Rakesh and P.W.8- Biniya Bai (son and wife of the deceased) turned hostile, considered their evidences and also the FSL report and there is no definite case rendered whether the bullet shots were fired either with weapon, Exhibit A-1 and A-2, the 12 bore country made pistols or Exhibit C-2, a 12-bore Shaktiman Express made metallic head. The Trial Court after detailed analysis of the evidence on record recorded the finding on the charge that the prosecution case suffers from infirmity that there is no cogent evidence placed on record, including the evidence of P.W. 1 and P.W. 8 coupled with medical evidence. The benefit of doubt was extended in favour of the appellant and the Trial court acquitted him for the offence punishable under Section 302 IPC read with Section 34 IPC and Section 27 of the Arms Act. It is contended by learned senior counsel for the appellant that P.W. 1 is the solitary eye-witness and P.W. 8's evidence does not support the case of the prosecution as informant of P.W. 8, namely, Birthia, who according to P.W. 8 informed her that the injury was caused by the accused to her husband, was not examined. Therefore, the Trial Court should not have recorded the finding of fact on the charge and passed the order of acquittal and having regard to the settled legal position laid down by this Court in the case of Rohtash v. State of Haryana, 2012 4 RCR(Cri) 539, the High Court should not have interfered with the finding of acquittal. The High Court can interfere with the same only in exceptional circumstances when there are compelling circumstances and the judgment in appeal is found to be perverse. The Trial Court recorded the finding on the charge after proper appreciation of evidence on record and in a stretch of imagination it was reversed by the High Court, therefore, the interference with the order of acquittal passed by the Trial Court, by the High Court in exercise of its appellate jurisdiction is erroneous in law and liable to be set aside. Learned senior counsel appearing for the appellant has also placed reliance upon another judgment of this Court in the case of V.N. Ratheesh v. State of Kerala, 2006 10 SCC 617 in support of the proposition of law that the appellate Court has got the power of review the evidence upon which an order of acquittal is based. The order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. In view of the observations made by this Court in the case of V.N. Ratheesh , the setting aside of order of acquittal passed in favour of the appellant and convicting the accused of the charge is not existed in law.

(3.) Lastly, he has contended that having regard to the medical evidence on record, particularly, the rigor mortis, as stated by P.W. 7- Dr. V.P. Mathur, the time of occurrence is totally different. Therefore, the said evidence was considered by the Trial Court in arriving at a conclusion and held that the charge is not proved against the accused, has been erroneously interfered with by the High Court in exercise of the appellate jurisdiction and set aside the order of acquittal. Therefore, he submits that it is a fit case for interference with the impugned judgment of the High Court by this Court in exercise of its jurisdiction.