Jammu & Kashmir High Court
State Of J. And K. vs Rattan Lal And Anr. on 19 April, 1999
Equivalent citations: 1999CRILJ4434
Author: R.C. Gandhi
Bench: R.C. Gandhi
JUDGMENT Bhawani Singh, C.J.
1. This Appeal is directed against the order of acquittal dated January 27, 1995 passed by Sessions Judge, Rajouri for offence under Section 302/34, RPC.
2. First Information Report dated November 29, 1993 was lodged by Gian Chand son of deceased Munshi Ram at Police Station Dharamsal (Kalakote) mentioning that his father used to treat people and charge for the same exercising supernatural powers. Smt. Armo Devi daughter of accused Krishan Lal had also been treated by him, but his charges had not been paid despite promise. Again, accused Krishan Lal came to his house 3/4 times requesting his father to treat his son, accused Rattan Lal, but his father declined to do so. On November 28,1993, Krishan Lal came to his house in the afternoon and requested his father to come to his house and treat Rattan Lal, who was seriously ill. His father went on being assured, of the payment.
3. When his father did not return, he went to the house of Krishan Lal at 11.00 p.m. and found his father lying dead in the varanda of the house of accused Krishan; Lal and Rattan Lal, while Gouri Ram was seen standing by the side of the deadbody. On inquiry, Krishan Lal and Gouri Ram could not give satisfactory reply which created suspicion that Rattan Lal in connivance with others had murdered his father, for the reason that deceased would direct evil spirits to the house of accused thereby create ground for earning money by coming to their house to free the same from bad spirits.
4. Investigation revealed commission of offence under Section 302/34, RPC and accused were committed for trial to the Court of Session by the Trial Court, where challan was filed. Number of witnesses have been produced by the prosecution. In statement under Section 342, Criminal Procedure Code, accused have denied the prosecution case against them. No evidence in defence has been led. Trial ended in the acquittal of accused by the impugned Judgment.
5. Counsel for parties were heard, record perused. Prosecution case is that on November 28,1993 the accused had conspired to kill Munshi Ram. For that purpose, they called him to their house on the day of occurrence on the pretext of conducting 'Jatar' in their house. After the 'Jatar' was over and other people had left the place except Kishoru, both the accused taking advantage of night attacked deceased with iron 'Toka' when deceased was going to the courtyard for urination. Incident was seen by Kishoru. Motive of the crime was that the accused entertained enemity with the deceased, since he was planting evil spirits in their house due to which they remained ill. Perusal of prosecution evidence clearly establishes that there is no iota of evidence against accused Krishan Lal. Even Kishoru had not said anything incriminating against him. With regard to Rattan Lal, evidence of Kishoru as an eye-witness and his disclosure statement with respect to recovery of 'Toka' at his instance and extra judicial confession made to Ram Lal has not been believed by the Trial Court. His statement has not been found trustworthy for the reason that it is not only contradictory, but also bad for giving mutually destructive version of the incident, one given examination in chief and the other in cross-examination. In examination in chief, he has stated that Munshi Ram went out at night to urinate when accused Rattan Lal attacked him with 'Toka' and gave second blow on his chest, as a result of which deceased fell down. In cross-examination, he states that Gian Chand came and inquired from,him who had killed his father, whereupon he narrated all the facts. But later, he states that deceased fell down in the Courtyard at about 11.00 p.m. and on his cries that he had been hurt, he got up and brought the deceased to the varanda with the help of Krishan Lal. He states that deceased died due to fall on the pegs. On raising hue and cry, villagers came there. Gian Chand was also called through messenger. To others, who had collected at the place of occurrence, he stated that the deceased had died due to fall on a peg. Thus, Trial Court found major contradiction in the statement of this witness which fact is supported by other witnesses like Krishan Lal, Om Parkash, Ramesh Lal having stated that when they reached the house of accused after hearing noise, on inquiry as to the cause of the death of the|deceased, they were told by Kishoru that deceased had fallen on a peg, got injured and died. Trial Court rightly concluded that in case this witness had seen the deceased being hit by Rattan Lal with 'Toka', there was no difficulty for him to explain the same properly and accurately. His absence at the spot can be noticed from the fact that Gian Chand has not mentioned about it. Disclosure statement of Rattan Lal was recorded on December 9, 1993 and recovered the 'Toka' at his instance on the same day. Prab Dayal and Ram Dayal have been produced to prove these documents, but they have stated the disclosure statement and recovery memo on 'Toka' were prepared at the place of recovery and they signed these two papers after the seizure of 'Toka' which shows that disclosure statement was not in existence at the time of recovery of 'Toka'. Further, place of recovery is accessible to all. As such, evidence for disclosure statement and recovery of 'Toka' at the instance of Rattan Lal is highly unsatisfactory and undependable.
6. Statement of Ram Lal with respect to extra judicial confession is vague, so nothing much can be read out of it. He states that accused met him on the way on 4th at 8.30 a.m. and on his inquiry stated that he had come after finishing 'Dayala'. Except these words, no other conversation took place between the two. This fact was not stated to anybody else except to the Police, where he was called after two days. Trial Court has rightly rejected his version holding that it is vague, '4th' has been mentioned without the month and only 'Dayala' is mentioned without any further identification, who 'Dayala' was, which was necessary since it was not the case of prosecution that Munshi Ram was 'Dayala' in that area. Moreover, finishing 'Dayala' did not mean killing him. As a normal person, he should have pointed out in what circumstances they met and who 'Dayala' was. He should have talked to other people about the incident and in case he had understood 'Dayala' for Munshi Ram being killed, rushed to the Police to report the matter. Therefore, it is no confession and cannot be used against him. Consequently, from the statement of Kishoru, Gouri Shanker, Krishan Lal, Gian Chand, Om Parkash, Ram Dayal, Romesh Lal, Mir Hussain, Dr. Khem Raj, Munshi Ram and Mushtaq Ahmed Mir, commission of crime by the accused has not been established. Accused has not been connected with the crime. Direct evidence is unsatisfactory and undependable, so is the extra judicial confession and recovery evidence. Motive for the crime has not been established. With this background, order of acquittal passed by the Trial Court is quite reasonable, proper and justifiable. No interference is called for.
7. After all, this is an Appeal against acquittal. Unless the Trial Court has committed serious and palpable error in dealing with the case, reversing order of acquittal into conviction would not be sound exercise of power by the Appellate Court even if two views are possible. Trial Court has recorded adequate reasons for acquitting the accused after correctly appreciating the prosecution evidence.
8. In para 11 of Antar Singh v. State of Madhya Pradesh AIR 1979 SC 1188: (1979 Cri LJ 715), the Apex Court held that:
11. This Court has repeatedly held that although in an appeal against acquittal, the powers of the High Court in dealing with the case are as extensive as of the trial Court, but before revrsing the acquittal, the High Court should bear in mind that the initial presumption of the innocence of the accused is in no way weakened, if not reinforced, by his acquittal at the trial and further, the opinion of the Trial Court which had the advantage of observing the demeanour of the witnesses, as to the value of their evidence should not be lightly discarded. Where two views of the evidence are reasonably possible and the trial Court has opted for one favouring acquittal, the High Court should not disturb the same merely on the ground that if it were in the position of the trial Court, it would have taken the alternative view and convicted the accused accordingly. In the instant case, by any reckoning, the view of Diwakar's testimony taken by the trial Court could not be said to be unreasonable or erroneous.
Similar view has been taken in K. Lakshmana Rao v. Public Prosecutor, State of Andhra Pradesh AIR 1979 SC 1324 : (1979 Cri LJ 1067), Chowdikodlu Asuralli Dyavappa v. State of Mysore AIR 1979 SC 1533 : (1979 Cri LJ 957) and Harijan Megha Jesha v. State of Gujarat AIR 1979 SC 1566 : (1979 Cri LJ 1137).
9. In para 14 of Sirajuddin v. State of Karnataka AIR 1981 SC 113 : (1980 Cri LJ 1498), it has been held that:
14...It is well settled that if the view of the evidence taken by the Trial Court is reasonably possible, the High Court should not, as a rule of prudence, disturb the acquittal. We are, therefore, of opinion that in the circumstances of this particular case, the High Court was not justified in reversing the acquittal of the appellant.
10. In Babu v. State of Uttar Pradesh AIR 1983 SC 308: (1983 Cri LJ 334) the Apex Court said (para 18, p. 311):
18. About the time of occurrence, also the High Court reversed the finding of the Sessions Court that the possibility was that Dhani Ram was done to death in the early hours of 8th October before he had gone to ease himself. The reasons given by the Sessions Court appear to be more plausible on the materials on the record. In any case, even if two views were possible, the High Court should not have interfered with the conclusions arrived at by the Sessions Court unless the conclusions were not possible. If the finding reached by the trial Judge cannot be said to be unreasonable, the Appellate Court should not disturb it even if it were possible to reach a different conclusion on the basis of the material on the record because the trial judge has the advantage of seeing and hearing the witnesses and the initial presumption of innocence in favour of the accused is not weakened by his acquittal. The appellate Court, therefore, should be slow in disturbing the finding of fact of the trial Court and if two views are reasonably possible of the evidence on the record, it is not expected to interfere simply because it feels that it would have taken a different view if the case had been tried by it. This Court in State of U. P. v. Samman Dass (1972) 3 SCR 58: AIR 1972 SC 677 : (1972 Cri LJ 487) dealing with a similar situation laid down the following postulates (para 32 of AIR):
There are, however, certain cardinal rules which have always to be kept in view in appeals against acquittal. First, there is a presumption of innocence in favour of the accused which was to be kept in mind, especially when the accused has been acquitted by the Court below; secondly, if two views of the matter are possible, a view favourable to the accused should be taken; thirdly, in case of acquittal by the trial Judge, the appellate Court should take into account the fact that the trial Judge had the advantage of looking at the demeanour of witnesses; and fourthly, the accused is entitled to the benefit of doubt, the doubt should, however, be reasonable and...should be such which rational thinking men will reasonably, honestly and conscientiously entertain and not the doubt of a timid mind which fights shy - though unwittingly it may be - or is afraid of the logical consequences, if that benefit was not given.
11. In Ram Kumar v. State of Haryana AIR 1995 SC 280 : (1994 Cri LJ 3836), the Apex Court said (Para 15, p. 284):
15. Learned Counsel for the appellant contended that the trial Court had recorded the order of acquittal of all the accused persons including the appellant giving sound and cogent reasons for disbelieving the prosecution case and, therefore, the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379, Cr. P. C. are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial Court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of the accused to the benefit of any doubt and the slowness of appellate Court in justifying a finding of fact arrived at by a Judge who had the advantage of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusion recorded by the trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterised as perverse.
11A. In Ramesh Babulal Doshi v. State of Gujarat AIR 1996 SC 2035: (1996 Cri LJ 2867), the Court held (Paras 7 and 15, PP. 2037 and 2040):
7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial Court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above quoted conclusions. This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial Court can be legitimately arrived at by the appellate Court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial Court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in Judgment over an acquittal the appellate Court is first required to seek an answer to the question whether the findings of the trial Court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate Court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate Court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above, infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial Court are sustainable or not.
15. For the foregoing discussion we unhesitatingly hold that the reasons given by the trial Court for recording the order of acquittal in favour of the appellate are cogent and convincing" and the High Court was not at all justified in disturbing the same by reappraising the evidence. The appeal is, therefore, allowed. The appellant, who is on bail, is discharged from his bail bonds.
12. In Dhanna v. State of Madhya Pradesh AIR 1996 SC 2478 : (1996 Cri LJ 3516), the Court held (Para 11, P. 2481):
11. Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate Court are concerned, certain unwritten rules of adjudication have consistently been followed by Judges, while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal, the appellate Court has to bear in mind; first that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial Court acquitted him, he would retain that benefit in the appellate Court also. Thus, appellate Court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed Durgacharan Naik v. State of Orissa AIR 1966 SC 1775 : (1966 Cri LJ 1491); Caetano Piedade Fernandes v. Union Territory of Goa, Daman and Diu AIR 1977 SC 135 : (1977 Cri LJ 167); Tota Singh v. State of Punjab AIR 1987 SC 1083 : (1987 Cri LJ 974); Awadhesh v. State of M. P. AIR 1988 SC 1158 : (1988 Cri LJ 1154); Ashok Kumar v. State of Rajasthan AIR 1990 SC 2134 : (1990 Cri LJ 2276).
13. What emerges out of the aforesaid discussion is that there is no merit in this appeal against acquittal and the same is accordingly dismissed. Bail bonds and Surety bonds, if any executed by the accused, are hereby terminated.