The State Of Maharashtra vs Khurshid Ahmed @ Lallu Dada Haji ...
2017 Latest Caselaw 2700 Bom

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             IN THE HIGH COURT OF JUDICATURE AT BOMBAY
                  CRIMINAL APPELLATE JURISDICTION


                       CRIMINAL APPEAL NO. 1074 OF 2003


      The State of Maharashtra                                         .. Appellant
                                                                     (Orig. Complainant)
               Vs.
      1)       Khurshid Ahmed alias Lallu
               Dada Haji Khairuddin Ansari;

      2)       Shabbir Ahmed Haji Khairuddin
               Ansari;                                                   .. Respondents
                                                                         (Orig. Accused
      3)       Rafique Ahmed Abdul Latif                                     Nos.1 to 3)

                                       ......
      Mr. Arfan Sait, Addl. P.P. for Appellant - State.
      Mr. A.R. Shaikh, Advocate for Respondent Nos.1 to 3.
                                       ......

                               CORAM : PRAKASH D. NAIK, J.

DATED : JUNE 2, 2017.

ORAL JUDGMENT :

The appellant - State have challenged the judgment

and order dated 23rd May, 2003, passed by the Judicial Magistrate

First Class, IV Court, Malegaon, acquitting the respondents. The

respondents were prosecuted for the offences punishable under

Sections 323, 325, 504, 506 read with Section 34 of the Indian

Penal Code ("IPC", for short) and Sections 37(1) and 135 of the

Bombay Police Act.

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      2                 The brief facts of the prosecution case are as follows:



      (a)      On     13th May,    1997   at     about           11.30     p.m.    when       the

complainant was present at his residence situated at

Rounakabad Takiya Area, Malegaon, accused Lallu came to

his house and questioned him as to why he has purchased

the house of Quadir Baba. He also abused and threatened

him. However, the persons in the vicinity separated the

quarrel.

(b) On 14th May, 1997 at about 3.30 p.m., the complainant had

visited his house for taking lunch and after that he

proceeded to carry out his hawking business. At that time,

the accused intercepted him and was assaulted by wooden

dandas.

(c) Accused nos.1 and 2 are brothers and and accused no.3 is

their servant. All of them assaulted the complainant. The

wife of the complainant intervened, however, she was also

assaulted by the accused. The complainant then went to

the police station and lodged the First Information Report

("FIR", for short).

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      3                 On completing the investigation, charge-sheet was

filed against the respondents-accused before the competent

Court. Charge was framed against the accused on 24 th October,

2002 for the offences punishable under Section 325 read with

Section 34 of IPC, 323 read with Section 34 of IPC, Section 504

read with Section 34 of IPC, Section 506 read with Section 34 of

IPC and Section 37 (1) along with Section 135 of the Bombay

Police Act. The accused pleaded not guilty.

4 The prosecution examined eight witnesses in support

of its case. P.W.1 Rashid Gani is the complainant/injured person.

P.W.2 Ms. Banobi Sayyed, the wife of the complainant, P.W.3 Mrs.

Fatima Bee is the sister of the complainant, P.W.4 Mobin Ansari

and P.W.5 Noorkha Shamsherka were the panch witnesses for the

spot panchanama. P.W.6 Bharat Wagh is the medical Officer who

had examined the complainant and issued the medical certificate

at Exhibit-31. P.W.7 Baby Shaikh is a hawker in the area and

neighbour of the complainant. P.W.8 Ravindra Pawar is the

investigating officer. The prosecution relied upon the oral

evidence of the said witnesses as well as the documents in

support of the charge framed against the respondents-accused.

The said witnesses were cross-examined at the instance of the

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accused. The accused did not examine any witness in their

defence. The trial Court after recording the evidence and

statement of the accused under Section 313 of the Code of

Criminal Procedure delivered the impugned judgment acquitting

the respondents- accused of all the charges. The trial Court after

analyzing the evidence concluded that the prosecution has failed

to establish the guilt of the accused beyond reasonable doubt

and, therefore, the accused are entitled to get the benefit of

doubt.

5 Against the judgment and order of acquittal, the State

has preferred this Appeal by invoking Section 378(1) of the Code

of Criminal Procedure.

6 Mr. Arfan. Sait, learned APP for the appellant - State

made the following submissions:-

(a) The trial Court has committed an error in acquitting the

accused;

(b) The prosecution has established the case beyond doubt on

the basis of the ocular evidence of the witnesses as well as

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the documents which were exhibited in evidence;

(c) The trial Court has overlooked the evidence of the

witnesses which clearly prove the offence being committed

by the accused persons;

(d) P.W.1, P.W.2, P.W.3 and P.W.7 are the eye witnesses to the

incident and their evidence was genuine which ought to

have been considered by the trial Court;

(e) The prosecution qua the evidence of the witnesses had

established the presence of the accused at the scene of

offence and also proved the overt-act committed by the

said accused persons;

(f) The witnesses have categorically stated that the

respondents - accused had assaulted the complainant and

two witnesses and the said evidence has not been shaken

by way of cross-examination conducted by the defence.

Hence, the trial Court has erroneously acquitted the

accused. Although P.W.4 and 5 appears to be the panchs to

the spot panchanama, they did not support the prosecution

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case and turned hostile, they have admitted their

signatures in the cross-examination conducted by the

prosecutor and P.W.4 has given certain admissions while

supports the prosecution;

(g) The evidence of medical officer clearly establish that the

complainant had sustained injuries which corroborates the

ocular evidence of the eye witnesses to the incident;

(h) The witnesses were knowing the accused persons and their

identity is not doubted and the witnesses have clearly

assigned the role to the accused person while committing

the said crime and, therefore, the accused ought to have

been punished for the said offences;

(i) The judgment and order of acquittal is perverse as the trial

Court has completely ignored the evidence of the

witnesses which clearly establishes involvement of the

accused in the said crime. Apart from the evidence of

P.W.1, P.W.2 and P.W.3, the prosecution has strongly relied

upon the evidence of P.W.7 who is an independent witness.

The evidence of the said witness is not shaken in the cross-

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examination by the defence and, therefore, the said

evidence should have been relied upon by the trial Court.

There is no reason to discard the evidence of the said

independent witness;

(j) Reliance was placed on the decision of the Supreme Court

of India in the case of Manjit Singh & Anr. Vs. State of

Punjab and Anr.1 and another decision of the Apex Court

in the case of Jodhan Vs. State of Madhya Pradesh2 as

well as the decision of the Supreme Court in the case of

Rameshbhai Mohanbhai Koli & Ors. Vs. State of

Gujarat3.

7 Mr. A.R. Shaikh, learned advocate appearing for the

respondents - accused made the following submissions:

(i) The evidence of the witnesses does not inspire confidence

and, therefore, the trial Court has rightly acquitted the

accused;

       (ii)    The evidence suffers from serious infirmities like omissions
      1 2013 AIR SCW 6049
      2 2015 Cr.L.J. 3291
      3 AIR 211 SC Supp. 577





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               and      contradictions   which         creates            doubt     about       its

genuineness and, therefore, there is no need to interfere

with the decision of the trial Court;

(iii) P.W.1, P.W.2 and P.W.3 has deposed before the Court about

the occurrence of incident. However, on perusal of evidence

of the said witnesses it can be seen that there is doubt

about the veracity of evidence of said witnesses. Their

depositions are contrary to each other and contradictory to

their statement before the police;

(iv) P.W.7 is purportedly independent witness is examined to

support the prosecution case. It is not clear as to how the

said witness was present at the scene of the offence, on the

previous day as well as on the date of incident;

(v) The medical evidence was not sufficient to convict the

accused persons. In the cross-examination, the medical

officer has stated that the major injuries could be possible

as accidental injury by traffic or it is possible if the person

falls on the rough surface;

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       (vi)    He submitted that the spot panchanam viz. P.W.4 and 5 has

not supported the prosecution case. The recovery evidence

is required to be discarded. He relied upon the decision of

the Supreme Court of India in the case of C. Mangesh &

Ors. Vs. State of Karnataka4 and A. Shakher Vs. State

of Karnataka5;

(vii) He also submitted that respondent no.3 has expired on 15 th

November, 2009. He tendered the death certificate issued

by the Health Department, Malegaon Municipal

Corporation on 31st May, 2017. The death certificate is

taken on record and marked "X" for identification;

(viii) Although, the incident had occurred in a crowded place, the

prosecution has not examined any independent witness.

8 In the light of the submissions advanced by both the

parties, it would be appropriate to analyze the evidence of the

witnesses:

      9                 P.W.1 is the complainant and injured witness. He has

      4 AIR 2768
      5 2011 (4) Mh.L.J. (Cri.) SC 19





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deposed that he knows all the accused. The incident took place

prior to 4 to 5 years. On the date of incident, he was selling

cucumber. He returned home to take lunch. At about 3.00 p.m.

after having lunch when he was proceeding to resume his

hawking business, there were 40 to 50 persons gathered in front

of his house including the accused. All the accused and their

associates assaulted him in front of his house. Accused had

brought wooden danda from the timber mart and started

assaulting him with the wooden danda. On account of the

assault, his teeth became loose and the accused thought that he

is dead and ran away from the place of incident. At that time, his

sister and wife came to the spot. While they tried to rescue the

complainant from the assault, accused also assaulted them.

Thereafter, they went to the police station to lodge the complaint

and on the basis of his statement FIR was recorded. He was

treated at N.M.Wadia hospital. He further deposed that accused

no.3 was having "Gupti" in his possession. He did not know the

name of accused no.3, but he identified him before the Court.

10 P.W.2 is the wife of the complainant. She has stated

that on the previous day of the incident of assault, the accused

had visited her residence. The accused asked them as to why

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they have purchased the house of one Kadir Baba. The persons in

the vicinity came and pacified the accused no.1 and his assailants

and, thereafter, they left the spot. She deposed that on the next

date at about 3.30 p.m. all the accused came and intercepted her

husband. Accused no.1 brought a stick of Babhool and assaulted

the complainant. All the accused assaulted the complainant

mercilessly and took away him by catching his two legs pulling

towards public toilet. The accused assaulted the complainant by

using Babhool stick. Due to assault, he sustained bleeding injury

and was unconscious. She snatched the wooden dandas from the

hands of the accused and went to the police station. During the

panchanama, she handed over the said wooden danda to the

police. She also identified the said article in the Court.

11 P.W.3 is the sister of the complainant. She stated that

she knows all the accused. On the previous day of assault she

was present in the house of the complainant. Accused no.1 told

her brother to vacate the plot which had been purchased by him

from Kadir Baba. The persons in the vicinity separated the

quarrel and, thereafter, the accused left the said place. On the

next date at about 3.00 p.m., while the complainant was

proceeding somewhere for his business, the accused and their

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assailants assaulted the complainant in the lane due to which he

fell down. Thereafter, the accused took her brother towards

public toilet. The accused assaulted the complainant by means of

wooden danda of Babhool. When she intervened in the quarrel,

she was also assaulted.

12 P.W.4 is the panch witness for the spot panchanama.

He did not support the prosecution case and was declared hostile.

In the cross-examination conducted by the prosecutor, he stated

that the complainant's house is situated in front of the timber

mart of Hasan Sheth. He also stated that he is acquainted with

the accused. However, other factual aspects put forth by the

prosecutor in the cross-examination were denied by him. P.W.5 is

another panch witness who also did not support the prosecution

case and was declared hostile. In the cross-examination, however,

he has stated that he is acquainted with the accused.

13 P.W. 6 is the medical officer who had examined the

complainant and had issued the medical certificate Exhibit-31.

He deposed that he had noted several injuries on the person of

the complainant. He has deposed that injury no.2 viz. Detachment

of nail of right middle finger, swelling and deformity over finger

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clinically fracture phalangeal bone is grievous and other injuries

were simple in nature.

14 P.W.7 stated that complainant is her neighbour. The

accused are conducting video business. Prior to the incident of

assault, on the previous day there was a quarrel between the

accused and the complainant. The accused were abused the

complainant and the persons from the locality had intervened.

On the next day, the accused came to the house of the

complainant, the accused assaulted the complainant. They caught

hold of him and took him towards public toilet. The accused

assaulted the complainant by means of stick. They had brought

wooden dandas from timber mart. Due to pulling of the

complainant by the accused, he had sustained scratches on his

body. The complainant was assaulted all over his body by the

accused. The wife of the complainant and his sister had

intervened and they separated the quarrel. Thereafter, police

came to the spot and took away the injured persons to the

hospital.

15 P.W.8 is ASI who has conducted the investigation. He

stated that after completion of investigation, charge-sheet was

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filed against the accused. During the investigation, he recorded

the statements of the witnesses and collected the documents

including the injury certificate of the complainant. He stated that

the charge-sheet was filed against the accused on the ground that

the accused had assaulted the complainant and his wife by means

of wooden danda due to which he had sustained grievous injuries.

He deposed that on account of the said injury, he added the

charge under Section 325 of the IPC.

16 I have perused the evidence on record. P.W.1 has

referred to the incident of assault. He has attributed the overt-

act by the accused. In the substantive evidence, however, he has

not referred to the incident which was purportedly occurred on

the previous day. The said incident of previous quarrel had been

referred to by P.W's. 2,3 and 7 in their evidence. In his evidence

he also stated that there were about 40-50 persons gathered in

front of his house. He had also stated that the accused and their

associates assaulted him. In the cross-examination of the said

witness, several omissions were brought on record which are as

follows:

(i) 40-50 persons had gathered and came to assault him;

      (ii)     All the accused had brought wooden danda from the timber





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                mart;

      (iii)    On account of assault his teeth became loose;

      (iv)     The      accused ran   away after the                       assault     under the

                impression that he is dead;

      (v)      Accused no.3 was having Gupti in his possession;

      (vi)     His sister came on the spot to rescue him.


      17                Apart from the aforesaid omissions, the said witness

has stated that he had not stated the name of the accused no.3 to

the police. He was not having knowledge about his name as

Rafique. He does not know the names of the accused even today,

but, identified them on the basis of their faces. He stated the

name of accused "Lallu Radiowala" to the police and also the

name of Shabbir to the police. He also stated that all the

members in the crowd at the time of incident were the associates

of the accused persons. He further deposed that accused no.3 is

the servant of accused no.1. He had identified him at the police

station. He has not stated the motive for the said crime. The

previous quarrel which has been referred to by the other

witnesses is not reflected in his evidence. The omissions which

were brought on record at the instance of the defence creates

doubt about the veracity of the evidence of this witness. The

presence of P.W.3 is brought on record for the first time in the

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substantive evidence by this witness. It is not clear as to why

about 40 to 50 persons had been gathered at the scene of the

offence to assault the complainant. The motive which has been

put forth by the other witnesses was the previous quarrel on

account of purchase of the house from one Kadir Baba. However,

beyond that, it is not clear as to why several persons were

gathered. All the accused and their associates assaulted him in

front of his house. This fact is not corroborated by the other

witnesses.

18 From the evidence of P.W.2, it is brought on record

that he had tried to rescue the complainant from being assaulted.

The complainant had stated in his evidence that after he being

assaulted and when he fell down, the accused gathered an

impression that he is dead and ran away. However, he further

stated that his wife had intervened in the assault and she was

beaten by the accused persons. The said two version appears to

be contrary to each other which creates doubt about the version

of P.W.1. P.W.2 has referred to previous day's quarrel which had

occurred at the residence of the said witness. The said quarrel is

not reflected in the evidence of P.W.1. She has also stated that

the accused assaulted the complainant mercilessly and took him

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by catching his two legs and pulled him towards the public toilet.

The accused assaulted the complainant by means of Babhool

stick. He became unconscious. The said deposition of P.W.2 that

the complainant being dragged away towards the toilet and she

being assaulted at the said place is not appearing in the evidence

of the complainant who is the injured person. In the cross-

examination, she admitted that the previous day incident is not

appearing in the statement recorded by the police. She also

stated that she did not know the name of the servant of accused

no.1 Rafique. However, she stated that she had disclosed the

name of accused "Rafique Ahmed" as "Kalya" to the police. She

did not see whether 50-60 persons were present at the time of

the incident. She has admitted that all the accused had assaulted

her husband but the said fact is not appearing in her statement.

Analyzing her evidence, it is apparent that her deposition is

contrary to the evidence of P.W.1.

19 P.W.3 is the sister of the complainant. In her evidence,

she has stated that on the previous day, accused no.1 had

threatened the complainant by stating that he should vacate the

plot which he had purchased from Kadir Baba. It is pertinent to

note that presence of P.W.3 is neither stated by P.W.1 nor by P.W.2

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on the previous day's incident or on the day of the incident of

assault. The threat issued to the complainant as per her version is

contrary to the one which is deposed by P.W.2. In the evidence of

P.W.2, it is stated that previous day quarrel was on account of

purchase of house belonging to one Kadir Baba. Thus, the

evidence of P.W.3 is contrary to the evidence of P.W.1 and P.W.2.

She has also stated that the complainant was dragged towards

the public toilet and was assaulted by the accused at the said

place which is not deposed by P.W.1. In the cross-examination,

she had admitted that the version deposed by her in respect to

the previous day's quarrel with regard to the fact that accused

no.1 had threatened the complainant on account of purchase of

plot of one Kadir Baba is not appearing in her statement. Thus,

the quarrel which had purportedly occurred on the previous day

of the incident is not reflected in her statement and therefore, the

said deposition is in the form of omission. She further stated in

the cross-examination that the fact that accused had pulled her

brother towards public toilet is also not reflected in her statement

before police. The evidence that after throwing her brother by the

accused near the toilet, he was again assaulted is also not

appearing in her statement recorded by police. Analysing the

evidence of these three witnesses, it is apparent that it is

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contrary to each other. The presence of P.W.3 at the scene of

offence is under the shadow of doubt. She is residing separately

as is appearing from the address mentioned in her evidence. It is

not clear as to how she was present on the previous day in the

house of the complainant and on the date of incident when the

complainant was assaulted. In any case, her presence was not

established clearly in the evidence of P.W.1 and P.W.2. It is

further noted that although it is the case of P.W.2 and P.W.3 that

they were also assaulted by the accused persons, there is no

medical evidence to support the said fact. These three witnesses

are purportedly the eye witnesses to the incident. Their evidence

is not inspiring and, therefore, the trial Court could not have

convicted the accused person on the basis of the such evidence.

Although, the witnesses knew the accused nos.1 and 2, the fact

remains that the overact attributed to them and the role in

commission of crime has to be established beyond reasonable

doubt. The nature of evidence of these three witnesses does not

inspire confidence and, therefore, the benefit of doubt is given to

the accused persons by the trial Court. I do not find that this is a

case where this Court should interfere in the order of acquittal.

      20                Learned   APP   had     vehemently                 argued   that     the





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      evidence        of       these   three   witnesses            clearly       establishes      the

commission of the crime by the accused persons. The presence of

the accused is established and the role assigned to them is also

corroborated by each of the witnesses. He submitted that P.W.7 is

an independent witness and he has no intention to falsely

implicate the accused persons. Therefore, in the light of the

evidence of P.W.7 and P.W.1 to 3, the trial Court should have

convicted the accused persons. However, in the light of the

observations made in the earlier paragraph, I am of the opinion

that no reliance can be placed on the evidence of these witness. It

is a cardinal principle of the criminal jurisprudence that the

prosecution has to establish its case beyond all reasonable doubt.

The benefit of doubt, if any, always go to the accused person.

P.W.7 is allegedly an independent witness. According to the

prosecution, he supports the prosecution case being independent

witness. From the evidence of the said witness, it is disclosed that

the complainant is her neighbour. From her evidence, it also

appears that there is a common wall in between her house and

the house of the accused. It appears that the deposition that the

common wall in between the house of the said witness and the

house of the accused has been wrongly recorded by the trial

Court since the address of the said witness is reflected in the

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evidence and the address of the other witnesses makes it clear

that P.W.1 is neighbour of the complainant. It is also pertinent to

note that the presence of this witness is not referred by P.W.1,

P.W.2 and P.W.3 as a person was present near the place of

incident. It is also stated in the evidence of P.W.1 that after the

assault, he went to police station and lodged the complaint. This

witness, however, states that after the incident of assault, police

had arrived at the scene of offence and, thereafter, they took the

complainant to the hospital. The presence of this witness at the

scene of the offence appears to be doubtful. Also considering the

fact that the evidence of P.W's.1 to 3 as observed hereinabove, is

under the shadow of doubt, no reliance can be placed on the

evidence of these witnesses.

21 In the case of Manjit Singh & Anr. Vs. State of

Punjab & Anr. (Supra) relied upon by learned APP, the Supreme

Court in paragraphs 24 and 25 has observed that it is not the

number and quantity, but the quality that is material. It is the

duty of the Court to consider the trustworthiness of the evidence

on record which inspires confidence and the same has to be

accepted and acted upon and in such a situation no adverse

inference should be drawn from the fact of non-examination of

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other witnesses. It is also to be seen whether such non-

examination of a witness would carry the matter further so as to

affect the evidence of other witnesses and if the evidence of a

witness is really not essential to the unfolding of the prosecution,

it cannot be considered a material witness. This decision was

relied upon by the learned prosecutor on account of the

submissions made by the learned advocate for the respondents

that incident had occurred in a crowded locality and the

prosecution has not examined the independent witness. The

learned prosecutor, therefore, submitted that the evidence which

is brought on record is sufficient to hold the conviction, there

need not be any other evidence. It is the quality of the evidence

which is material and not the quantity. However, in the light of

the observations made by me hereinabove, I am of the opinion

that the prosecution has failed to establish its case.

22 In the case of Rameshbhai Mohanbhai Koli & Ors.

Vs. State of Gujarat (Supra), the Supreme Court has

considered the issue of hostile witness. In the said decision, it

was observed that it is a settled legal proposition that the

evidence of a prosecution witness cannot be rejected in toto

merely because the prosecution chose to treat him as hostile and

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cross-examine him. The evidence of such witnesses cannot be

treated as effaced or washed off the record altogether but the

same can be accepted to the extent that their version is found to

be dependable on a careful scrutiny thereof. The decision also

refers to the importance of the evidence of the investigating

officer. In paragraph 23 of the said decision, it was observed that

the Courts of law have to judge the evidence before them by

applying the well recognized test of basic human probabilities.

Prima facie, public servants must be presumed to act honestly

and conscientiously and their evidence has to be assessed on its

intrinsic worth and cannot be discarded merely on the ground

that being public servants they are interested in the success of

their case. In the present case, it is noted that P.W's 4 and 5 have

not supported the prosecution case. The learned APP, however,

stressed upon the fact that P.W.4 in his evidence has referred the

existence of timber mart. He, therefore, submitted that the

prosecution case that accused had brought the wooden danda

from the timber mart is established in the cross-examination of

the said hostile witness. He further stated that both these

panchas had deposed in the evidence that they are acquainted

with the accused persons. In the light of the said deposition, the

learned APP had submitted that the admission given by the said

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witness and the fact that the investigating officer had proved the

spot panchanama in his evidence clearly establishes the evidence

of seizure of the articles which were purportedly used by the

accused persons. It is pertinent to note that the said witnesses

were declared hostile. The witnesses have stated that the wooden

dandas were brought from the timber mart by the accused

persons. It is also pertinent to note that the witnesses have also

deposed that the accused had come armed with wooden dandas.

The witnesses have also referred to this wooden danda as

Babhool sticks. It is not clear as to how the Babhool sticks can be

found in the timber mart. The prosecution has not examined the

owner of the timber mart to support its case. It is also pertinent

to note that the medical officer who was examined by the

prosecution have not stated in his evidence that the injuries

sustained by the complainant were possible by Babhool stick.

Assuming that the seizure panchanama is proved, it does not

establish the fact that the accused had assaulted the complainant

with the said Babhool stick or that the said injuries were possible

by use of the said article.

23 Learned APP has relied upon the decision in the case

of Jodhan Vs. State of Madhya Pradesh (Supra). The said

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decision is based on the principle to be followed by the Court

while dealing with the Appeal against acquittal. In paragraph 12

of the said decision, the Apex Court has referred to the earlier

decision of the Supreme Court in the case of Ramesh Babulal

Doshi Vs. State of Gujarat6. In the said earlier decision, the

Supreme Court had taken a view that while considering the

appeal against 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 and if the Court answers the above question in the

negative, the acquittal cannot be disturbed. In the same

paragraph, the Supreme Court has also considered its earlier

decision in the case of Ganpat Vs. State of Haryana7 wherein it

was observed that the following principles have to be kept in

mind by the Appellate Court while dealing with appeals,

particularly, against an order of acquittal:

(i) There is no limitation on the part of the appellate

Court to review the evidence upon which the order of

acquittal is founded and to come to its own

conclusion.

6 (1996) 9 SCC 225 :

      7 (2010) 12 SCC 59





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      (ii)     The appellate court can also review the trial Court's

conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the State,

it is the duty of the Appellate Court to marshal the

entire evidence on record and by giving cogent and

adequate reasons as may set aside the judgment of

acquittal.

(iv) An order of acquittal is to be interfered with only when

there are "compelling and substantial reasons" for

doing so. If the order is "clearly unreasonable", it is

compelling reason for interference.

(v) When the trial Court has ignored the evidence or

misread the material evidence or has ignored material

documents like dying declaration/report of ballistic

experts, etc., the Appellate Court is competent to

reserve the decision of the trial Court depending on

the materials placed."

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In the light of the aforesaid observations, the learned

APP had submitted that the trial Court in the present case has

misread or misinterpreted or overlooked the evidence on record.

He, therefore, submitted that the impugned judgment of acquittal

needs to be interfered in the light of the law laid down by the

Apex Court. I have already made observations hereinabove that

the infirmities in the evidence of the witness goes to the root of

the matter and the prosecution has failed to establish its case

and that the trial Court has rightly given benefit of doubt to the

accused persons.

24 Learned advocate for the respondents had placed

reliance upon the decision of the Supreme Court in the case of A.

Shankar Vs. State of Karnataka (Supra) in which it was

observed in paragraph 19 that it is settled legal proposition that

in exceptional circumstances the Appellate Court under

compelling circumstances should reverse the judgment of

acquittal of the Court below if the findings so recorded by the

Court below are found to be perverse, i.e., the conclusions of the

Court below are contrary to the evidence on record or its entire

approach in dealing with the evidence is found to be patently

illegal leading to miscarriage of justice or its judgment is

unreasonable based on erroneous law and facts on the record of

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the case. While dealing so, the Appellate Court must bear in mind

the presumption of innocence of the accused and further that

acquittal by the Court below bolsters the presumption of his

innocence.

25 In another decision of the Supreme Court in the case

of C. Mangesh & Ors. Vs. State of Karnataka (Supra) relied

upon by the learned advocate for the respondent. In paragraph

39, it was observed thus:

"39 In an appeal preferred under Section 378 of the Cr.P.C., no doubt, it is true that High Court has ample powers to go through the entire evidence and to arrive at its own conclusion but before reversing the finding of acquittal, following conditions should be always kept in mind namely,

(i) the presumption of innocence of the accused should be kept in mind;

(ii) if two views of the matter are possible view favourable to the accused should be taken;

(iii) the appellate court should take into account the fact that the trial judge had the advantage of looking at the

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demeanor of witness; and

(iv) the accused is entitled to benefit of doubt. But the doubt should be reasonable that is the doubt which rational thinking man with reasonable honesty and consciously entertained, more so, when the larger question with regard to treating Exh. P29 and Exh.

P30 as dying declarations itself had become questionable."

26 Taking into consideration the principles enumerated

hereinabove in the said decision cited by both the parties, it is

clear that the Appellate Court can interfere into the decision of

the trial Court, if it is perverse or completely contrary to the

evidence on record. It is also clear that even if two views are

possible, the view favourable to the accused should be taken. It is

also observed that the presumption of innocence of the accused

should be kept in mind and that the accused is entitled to benefit

of doubt. After scanning the evidence of the witnesses examined

by the prosecution and in the light of the observations made

hereinabove, I am of the opinion that the impugned judgment of

acquittal has to be confirmed and does not require any

interference by this Court. It is apparently stated hereinabove

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that the evidence does not prove that the alleged crime is

committed by the accused, beyond all reasonable doubt and the

prosecution has failed to discharge its burden.

27 Although, the learned advocate for the respondents

had placed on record the death certificate of respondent no.3, in

the absence of verification of the said documents, I am not

invoking provisions of Section 394 of the Cr.P.C. However,

considering the fact that the impugned judgment does not require

any interference by this Court, there is no necessity of going into

the aspect of the abatement of the Appeal qua respondent no.3.

      28                Hence, I pass the following order:



                                      :: O R D E R ::


               (i)      Criminal     Appeal       No.1074              of       2003    stands

                        dismissed;

               (ii)     No order as to costs.



                                              (PRAKASH D. NAIK, J.)