AWADHESH Vs. STATE OF MADHYA PRADESH

JUDGEMENT

(1.) This appeal is directed against the judgment of the Madhya Pradesh High Court dated 3-9-1986 setting aside the trial Court's order acquitting the appellants herein and convicting them for offence under S. 302 read with S. 34 of the Indian Penal Code and sentencing each of them to undergo imprisonment for life.

(2.) The prosecution case in brief is that on 4-1-1982 Ram Pratap Singh deceased resident of village Kharoni P. S. Ajaigarh, District Panna had gone to Collectorate Panna to file reply to a show-cause notice issued to him for the cancellation of his gun licence. While he was at the Collectorate he noticed Om Prakash and Raghvendra who were enimical to him were shadowing him in the Collectorate. He requested Rajendra Singh P. W. 14, Chottey Bhaiya PW. 15, and Mohd. Tohid PW 16 to accompany him on his return journey as he sensed danger to his life. Ram Pratap Singh the deceased sent Tohid to purchase tickets for Bus with a direction that he should meet him at the Octroi Toll barrier on the Ajaigarh Road from where he proposed to take the Bus, thereafter the deceased along with Rajendra Singh, PW 14, and Chottey Bhaiya PW 15 proceeded on foot to Chungi Chowki, (Octroi Post) situate at about two furlongs away from the Collectorate on the Ajaigarh Road. While the deceased, Rajindra Singh and Chhotey Bhaiya were waiting for Tohid near the Octroi Post one bus arrived, but the deceased told Rajindra Singh and Chhotey Bhaiya not to travel by that bus as he had apprehension that Raghvendra and his associates may be inside the bus. While they were waiting for Tohid, the deceased went for drinking water from a well which was near the road at the Octroi Post. After drawing the water from the well while the deceased was in the process of drinking water at that precise moment gun shots were fired towards him from the Northern side from the Bari boundary, causing injuries to him in his chest and hand. On receipt of injuries the deceased ran towards his associates and fell on a takhat near Rajendra Singh and Chhotey Bhaiya. The prosecution further alleged that Rajendra Singh and Chhotey Bhaiya on hearing the gun shot saw the appellant Rajendra armed with a .315 rifle and Awadhesh armed with a 12 bore gun running ,away along with an other person named Kailash who was also armed with a gun. Rajendra Singh PW 14 who was armed with a .275 rifle and Chhotey Bhaiya was armed with a 12 bore gun fired shots towards the assailants. The assailants also fired towards them, but they escaped. On hearing the gun shot fire V.P. Pathak, Sub-Inspector of Police PW 20 accompanied by Constable Lakhan Singh PW 12 rushed to the spot. Rajendra Singh PW 14 gave him information about the incident which was recorded by Pathak, (Dehati Nalishi Ex. P. 12 at 3.10 p.m.). V.P. Pathak, the Sub-Inspector sent the Dehati Nalishi to Kotwali Panna through Lakhan Singh, Constable, for recording the first information report. After holding inquest, Pathak, the Sub-Inspector prepared Panchanama and sent requisition of post-mortem examination of the dead body and he also prepared the spot map Ex. p. 17 on the same day. After completion of investigation a charge sheet was submitted against five accused persons including the two appellants Brajendra and Awadhesh for trial for offences under S. 302 read with S. 34, I.P. C. and under S. 307 read with S. 34 of the Indian Penal Code. Kailash one of the accused was shown absconding. Before the trial court Rajendra Singh PW 14 and Chhotey Bhaiya PW 15 supported the prosecution case as eyewitnesses, they claimed to have witnessed the assault, they further claimed that they had recognised the accused persons. The learned Sessions Judge disbelieved the testimony of these two eye-witnesses, he referred to a number of circumstances which made the prosecution story doubtful, therefore, he acquitted the accused. On appeal by the State Government the High Court disagreed with the reasons recorded by the trial court and placing reliance on the testimony of the eye-witnesses, i.e., Rajendra Singh and Chhotey Bhaiya, it allowed the State's appeal and set aside the acquittal of the appellants and convicted them under S. 302 read with S. 34 of the Indian Penal Code and awarded sentences of imprisonment for life to each of them.

(3.) The trial court held that the prosecution had failed to prove its case beyond all reasonable doubt and no reliance could be placed on the testimony of the Rajendra Singh PW 14 and Chhotey Bhaiya PW 15. The trial court referred to a number of circumstances creating doubt on the credibility of the prosecution story but the High Court differed from those findings and on appraisal of evidence it came to the conclusion that the prosecution had proved its case beyond all reasonable doubt. The High Court referred to a number of decisions of this Court in considering the scope of its jurisdiction in interfering with an order of acquittal passed by the trial court but while applying the principles it failed to appreciate that the view taken by the trial court was reasonable and plausible. Even the High Court has not held that the view taken by the trial court was not a possible view. The High Court re-appraised the evidence and took a different view and it explained the infirmities of the prosecution pointed out by the Sessions Judge. In G. B. Patel v. State of Maharashtra, (1979) 2 SCR 94 this Court quoted with approval the principles laid down by Privy Council in Sheo Swarup v. King Emperor, AIR 1927 PC 227 (2), wherein it was held that although the power of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper weight and consideration to matters e.g. (i) the views of the trial Judge as to the credibility of the witnesses; (11) and presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been, acquitted at the trial; (iii) the right of the accused to the benefit of any doubt, and (iv) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. Sarkaria, J. speaking for the court observed "where two reasonable conclusions can be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the court below. In other words, if the main grounds on which the court below based its order acquitting the accused are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal." While considering an appeal against acquittal the High Court must keep in mind these principles in appreciating the evidence of witnesses. If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible, one as held by the trial court for acquitting the accused, and the other for convicting the accused in such a situation the rule of prudence should guide the High Court not to disturb the order of acquittal made by the trial Court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acquittal. The High Court has in the instant case made an attempt to explain away the infirmities in the testimony of eye-witnesses in setting aside the order of acquittal. The High Court has in our opinion disregarded the rule of judicial prudence in converting the order of acquittal to conviction.