State vs Umed Singh & Anr.
2011 Latest Caselaw 1190 Del

*      IN THE HIGH COURT OF DELHI AT NEW DELHI

                                                             Reserved on: 14.02.2011
                                                              Decided on: 28.02.2011

+                                     CRL. A. 25/1998

       STATE                                                                ..... Appellant
                       Through: Sh. Jaideep Malik, APP for the State.

                       Versus

       UMED SINGH & ANR.                                     ..... Respondents

Through: Sh. Ramesh Gupta, Sr. Advocate with Sh. Bharat Sharma, Advocate.

Respondents in person.

CORAM:

       MR. JUSTICE S. RAVINDRA BHAT
       MR. JUSTICE G. P. MITTAL

1.     Whether the Reporters of local papers          YES
       may be allowed to see the judgment?

2.     To be referred to Reporter or not?             YES

3.     Whether the judgment should be                 YES
       reported in the Digest?


       MR. JUSTICE S.RAVINDRA BHAT

1. This is a state appeal, by leave granted by this Court, directed against a judgment and order of the learned Additional Sessions Judge, Delhi. By the said impugned judgment, one accused Raj Singh, was convicted of the charge under Sections 302/307/34 IPC. His co-accused Brahm Singh, Umed Singh and Randhir Singh, the respondents in the present appeal, were however, acquitted. Raj Singh had appealed against his conviction. The said appeal was disposed of as having abated, due to death of the said appellant.

2. The case of the prosecution as alleged was that the complainant Kapur Singh, resided at village Issa Pur, with his father Chander Bhan and his three sons and one daughter. The accused, Raj Singh and his brothers, i.e. Respondents Brahm Singh and Umed Singh were also residents of the same village. Respondent Randhir Singh was also resident of the village. According to the

CRL. A. 25/1998 Page 1 prosecution, Kapur Singh had previous enmity with accused Raj Singh, Umed Singh and Brahm Singh over a thoroughfare since 1988; civil litigation was pending between the parties. It is alleged that Randhir Singh too nursed a grudge against Kapur Singh and his family members, from the time he (Kapur Singh) purchased a piece of land of 200 Sq. yds. from Randhir Singh‟s close relative, as the land was situated near his ancestral land. Kapur Singh‟s Gher was at a distance of about 150 yds from his house. On the night intervening 26/27.06.1992 deceased Chander Bhan and PW-6 Sandeep Kumar, (father and son of complainant Kapur Singh) were sleeping in the Gher on separate cots. Sandeep Kumar‟s sleep was disturbed, when he heard commotion near his cot. Upon waking up, he allegedly found that all four accused were standing near their cots. When Sandeep Kumar tried to get up, he was caught hold of by Brahm Singh and Umed Singh. On hearing the noise, Chander Bhan, Kapur Singh‟s father also woke up. Immediately, Raj Singh had fired at him from his country made pistol. Chander Bhan was hit on the chest, as a result of which he started to bleed profusely; he also fell down from the cot. When Sandeep Kumar tried to run away from extricating himself from the clutches of accused Brahm Singh and Umed Singh, Randhir Singh allegedly exhorted accused Raj Singh to fire at him (Sandeep Kumar) by saying "Mar Goli Raj phir kya Le Gaa, Ise Goli Mar". Upon this exhortation, Raj Singh fired at Sandeep Kumar and hit him on the back of the head. As a result, Sandeep fell down due to dizziness.

3. The prosecution further alleged that on hearing the noise, Sher Singh, (Sandeep Kumar‟s brother) reached the spot and on seeing him, all the four accused fled. On seeing his grandfather dead, Sher Singh started crying; this attracted the attention of the complainant Kapur Singh, who had reached the spot, from his house. He found his father dead and his son Sandeep Kumar in unconscious state. He informed the Police Control Room about the incident. With the help of Jagdish, he had shifted his injured son Sandeep Kumar in a Maruti Car to DDU Hospital but since the doctor there did not admit Sandeep Kumar seeing his critical condition, Kapur Singh rushed him to Safdarjung Hospital and got admitted him there about 5.15 AM. On the way, Sandeep Kumar had narrated the whole incident to his father Kapur Singh and his brother Sher Singh.

4. HC Ved Rattan, who was working as Wireless Operator at Police Station Jafarpur Kalan on the night intervening 26/27.06.1992 received a message from PCR at about 3.04 AM regarding the incident having taken place in village Issa Pur. He passed on the information to HC

CRL. A. 25/1998 Page 2 Phool Chand, who was working as duty officer at P.S. J.P. Kalan, who then recorded it by DD entry No.24-A (Ex.PW14/A) at P.S. Jafarpur Kalan and handed it over to SI Joginder Singh, for investigation. Consequently, SI Joginder Singh reached the spot accompanied by Constable Mehar Singh. Inspector Rohtash Singh Yadav, then posted as SHO, P.S. Jafarpur Kalan was also informed about the incident. On reaching the spot, Inspector Rohtash Singh Yadav saw SI Joginder Singh. He found that the dead body of Chander Bhan was lying in a pool of blood with bullet injuries on his chest. A lot of blood was lying on the ground near the dead body. Two cots were found lying near the dead body of deceased Chander Bhan. The bed spreads on the two cots were also blood stained. The IO/SHO observed that one Hukka and one pair of Juti (local shoes) and a pair of chappals was lying near the cot. Near the deceased‟s head, a spent green colour cartridge of .12 bore with the inscription „KF‟ was found. Cardboard wads were also lying near the cartridge. A blood stained mosquito net was also found lying near the cot. In addition, a blood stained shirt was found lying near the head of the dead body of deceased Chander Bhan.

5. Police came to know that the injured Sandeep Kumar was removed to some unknown hospital. Meanwhile, Inspector Rohtash Singh was handed over the copy of DD entry when he learnt that Sandeep was in Safdarjung Hospital. Rohtash Singh left for Safdarjung Hospital leaving SI Ram Dulare and other police staff there to safe-guard the spot. The crime team and dogs squad were also summoned at the spot. Inspector Rohtash Singh accompanied by SI Joginder Singh and Constable Mehar Singh had reached Safdarjung Hospital. There, he obtained the MLC of injured Sandeep Kumar. After Sandeep Kumar was declared fit for making statement by the doctor concerned, Inspector Rohtash Singh recorded his statement. In the statement, Sandeep named all the accused, as having shot dead Chander Bhan and injuring him with bullet fired from a country made pistol. He narrated the whole incident, on the basis of which a case against the accused u/s 302/307/34 IPC was registered at P.S. Jafarpur Kalan at about 9.45 AM.

6. The prosecution alleged that Inspector Rohtash Singh had then reached the spot and he had held inquest proceedings on the dead body of deceased Chander Bhan, which was sent for post-mortem examination. Dr. L.K. Baruwa conducted the post-mortem examination on 28.06.1992 and opined that the injury found on the chest of deceased Chander Bhan was the result of a gun shot fired at a close range. The dead body of the deceased was handed over to his relatives after post-mortem. The Investigating Officer had got the place of occurrence

CRL. A. 25/1998 Page 3 photographed, and also got a rough sketch prepared; he further lifted the blood stained earth and sample earth from near the deceased‟s cot. Blood stained earth samples were lifted from near Sandeep‟s cot; the spent cartridge of .12 bore was also seized by him. The blood stained clothes of the deceased, along with other articles, and also mosquito net, blankets, etc were seized by Inspector Rohtash Singh Yadav. All the articles were converted into parcels and were sealed with the seal "RSY" and taken into possession by Inspector Rohtash Singh Yadav.

7. It was further alleged that on 30.06.1992 accused Raj Singh and Umed Singh were arrested from the house of Raj Singh while accused Randhir Singh and Brahm Singh were arrested from near the tubewell of Randhir Singh from village Issa Pur. They had allegedly made disclosure statements. However, the police were unsuccessful in getting the weapon of offence recovered at the instance of accused. All the exhibits were deposited with MHC (M) and subsequently sent to CFSL for expert opinion. The scaled site plan was prepared by police. After recording the statements of the witnesses and after completion of other formalities, a challan against accused was completed by Inspector Rohtash Singh and all the accused were sent up to face trial for the offences punishable u/s 302/307/34 IPC. Upon committal, charges were framed by the Court on 16th March, 1993 to which all the four accused pleaded not guilty and claimed trial.

8. By the impugned judgment the learned Additional Sessions Judge convicted Raj Singh of the charges under Section 302; it acquitted the other accused, of all charges, reasoning that there were grave inconsistencies in the prosecution evidence, which was therefore insufficient to implicate their presence. Raj Singh had filed an appeal (Crl. Appeal No. 267/1997). During its pendency, he expired; the appeal, consequently, abated.

9. The State argues, in the appeal that the trial court erred in ignoring vital evidence, and giving importance to inconsequential facts and discrepancies. Expanding on the submission, it was argued that the trial court was needlessly persuaded to hold that the presence of the respondents was doubtful, because there was no occasion for them to be there. It was urged that PW-6 is an injured eyewitness, and there was no reason for the Court to disbelieve his testimony, particularly when the role ascribed to Raj Singh by him was accepted by the trial court. Furthermore, submitted the APP, the Court was impressed by a so-called improbability of small distance between PW-6‟s cot and that of the deceased - a fact deposed by him. It was argued here that it is common practice in villages and rural areas in the North for menfolk to sleep in the

CRL. A. 25/1998 Page 4 open area, such as Ghers, on charpoys, which can be easily moved. Therefore, the presence of the accused other than Raj Singh was very much probable, and it was quite possible for them to move the cot easily, while trying to hold down Sandeep. In this context, the APP relied on Ex. PW-20/C, the site plan prepared at the earliest point in time, to say that there was ample space for two persons to hold down PW-6 when Raj Singh tried to shoot him. It was next submitted that Sandeep‟s version was consistent, and recorded at the earliest point in time, after he was removed to the hospital. This was corroborated by testimony of the official witnesses, as well as his brother, Sher Singh. It was lastly argued that all the three respondents had a grudge against Chander Bhan, which constituted motive for them to join hands with Raj Singh in the deed. Further, the injuries on the person of Sandeep were also testimony to his being shot at. Since he deposed that there was sufficient light in the Gher, his deposition was credible and trustworthy.

10. The respondents argue that the trial court arrived at the right conclusions, and did not rely on the so called eye-witness testimony of PW-6. It was urged, in this context that though the witness stated that he could identify the respondents, as he was conscious after the attack, this fact was contradicted by his brother Sher Singh‟s testimony, who stated that as soon as he reached the spot, he saw that Sandeep was lying unconscious. It was argued, moreover that even the prosecution version about the whole sequence of attack is highly improbable, because there would have been no occasion for the assailants to hold down one man, while attacking the other. If the prosecution story were correct, the assailants were armed and had the element of surprise, in which event they merely had to fire at both the sleeping individuals, and flee the spot. It was next argued that Sher Singh‟s house was very near the spot of occurrence; he deposed about having reached the spot upon hearing a gunshot. He significantly did not mention about two gun shots. It was emphasized that the rukka was sent at 8:50 AM, which betrays unexplained delay, considering that the incident was reported by PW-17 Kapur Singh, almost immediately; the evidence corroborates this, as the police logs indicate 3:04 AM to be the time of intimation. It was next submitted that the deposition of Kapur Singh indicates that Sandeep was operated upon at 6:00 AM; the latter was, by the deposition of Sher Singh, unconscious. Yet, Kapur Singh was told about the attack. These are utterly improbable facts. It was argued that According to PW-6 Sandeep, the four assailants fled the spot, when Sher Singh reached there; the latter did not say so, and merely said that Sandeep was unconscious when he reached there. Apart from this contradiction, PW-17 said that Sher Singh was at the spot of the incident. The improbabilities of

CRL. A. 25/1998 Page 5 these apart, if indeed Sher Singh was present and Sandeep had seen him, there was no reason for Kapur Singh to withhold the assailants‟ identity when he reported the attack, to the police, in the early hours of the morning. It was submitted that PW-17, significantly did not mention about adequacy of light at the spot of occurrence, since concededly the attack took place when there was no natural light. He mentioned about sufficient light, in a separate supplementary statement recorded by the police, which suggests at improvement of his original version. It was submitted that the sketch plan prepared in this case, could not have been relied on. Summing up, Appellants‟ senior counsel submitted that the trial court‟s reasoning was sound and logical, and this Court should not, in line with settled principles, substitute its findings on the mere availability of another view.

11. It is a matter of record that Kapur Singh and his family members were residing in village Issa Pur. The trial court recorded that his Gher was about 150 yards, from his house. Umed Singh‟s house was at a distance of 100 yds from the Kapur Singh‟s Gher; the house of accused Brahm Singh was at a distance of 10/15 yards from the said Gher. Raj Singh‟s house was at a distance of 50 yards. The trial court also held that there was long drawn out litigation between deceased Chander Bhan and villagers on the other side over the thoroughfare, which passed through the houses of the accused. Copies of representations Ex. PW17/M, (by deceased Chander Bhan and other villagers) and Ex.PW17/L (by one Umed Singh) the concerned SDM was told that the thorough-fare blocked by Raj Singh should be opened up. By Ex. PW-17/K, the prosecution brought on record a DD entry of 25.02.1988 of P.S. Najafgarh; it was a complaint by deceased Chander Bhan against Raj Singh and Brahm Singh regarding obstruction of the thoroughfare. Apparently, a compromise of sorts had been effected on 07.05.1988 between Raj Singh, Umed Singh and Brahm Singh with their adversaries regarding use of thoroughfare; yet PW17 Kapur Singh deposed that despite its terms the accused and they had not cleared the passage. Therefore, one Umed Singh S/o Soni Ram, had again filed a case against accused in which Kapur Singh was the second party along with said Umed Singh. In that said case, the ld. SDM had directed the accused persons to clear the passage of 11x66 ft; that order was not complied fully. In this case, the key witnesses to the incident are family members, closely related to the deceased; his son, Kapur Singh (PW-17); and two grandsons Sandeep (PW-6) and Sher Singh (PW-12).

CRL. A. 25/1998 Page 6

12. PW6 Sandeep Kumar deposed that on the night intervening 26/27.06.1992 he and Chander Bhan were sleeping on separate cots in the Gher; they had gone to bed at about 10 PM. At about 2.30/3 AM his sleep was disturbed by commotion, due to which he woke up. He then found that all the four accused were present near the cots. When he tried to get up, he was pinned down by Brahm Singh and Umed Singh. Chander Bhan also woke up due to the commotion. Raj Singh had fired at him with his country made pistol and the bullet hit him in his chest; he started bleeding profusely and fell down from the cot. Sandeep Kumar tried to flee, after freeing himself from the clutches of accused Brahm Singh and Umed Singh. Upon this Randhir Singh had exhorted accused Raj Singh to fire at him by saying „Mar Goli Phir Qya Le Ga‟. On this, Raj Singh aimed and fired at Sandeep Kumar; he was hit on the back of his head. He therefore, fell, due to dizziness. Sandeep Kumar deposed that his brother Sher Singh then reached the spot and upon seeing him, all the four accused persons fled towards „Dada Budha Mandir‟; his grandfather had in the meanwhile, died at the spot due to bullet shot received by him on his chest. According to him, his father PW Kapur Singh also reached the spot, who then informed the police and took him to Safdarjung Hospital in a Maruti Car belonging to PW Jagdish. He had also narrated the whole incident to his father while being taken to the Hospital. Later on, police had reached the Hospital and had recorded his statement Ex.PW6/A.

13. This testimony was sought to be corroborated by PW-12 Sher Singh, who also claimed that on hearing the noise of gunshot on the night intervening 26/27.06.1992 at about 2.30 AM, he reached his Gher where his grandfather and brother were sleeping and on seeing him, all the four accused persons standing in the Gher fled away from the scene and that he found Sandeep Kumar bleeding from his head and was unconscious and his grandfather was lying on the ground having bullet injuries on his chest. He started crying; on hearing his cries, his father Kapur Singh also reached the spot and called up the PCR and brought a Maruti Car and he and his father took his brother Sandeep Kumar to Safdarjung Hospital and on the way, his brother Sandeep Kumar, who had become conscious, had narrated the whole incident to him and to his father. According to him, police arrived at the spot and they took one empty cartridge of .12 bore, one blood stained kurta of his grandfather, one blood stained chadder, one pair of juti, one pair of chappals, one mosquito net, one Hukka, two mattresses and two cots by seizure memo Ex.PW2/C and that police also took the blood stained earth and sample earth from the spot in his presence. PW17 Kapur Singh deposed in a similar vein. He attributed the incident to the previous enmity, which

CRL. A. 25/1998 Page 7 he had with the accused. He deposed that respondent Randhir Singh nursed a grudge against him since he purchased a plot of 200 yds from his close relative, with whom he (Randhir Singh) was in litigation.

14. The trial court did not believe or place credence on the version put forward by the prosecution about the attack, and the presence of various witnesses. It felt that if indeed Sher Singh had come to the spot, there was no reason why the respondents would have spared him, particularly since they allegedly fired at and injured Sandeep. It also noticed that the prosecution did not show any traces of Sandeep‟s blood, or produce any earth sample seized from the spot; more importantly, even the sketch relied on did not show where he had fallen, after being injured. The trial court further noticed that the version of PW-6, PW-12 and PW-17 about Sandeep being taken to the hospital from the spot, was falsified and contradicted by PW-18, who deposed that he had taken them in his Maruti car from PW-17‟s house, when he was accompanied by PW-17 and the mother of Sandeep. The learned Additional Sessions Judge found corroboration for his conclusion, about Sher Singh‟s absence by noting that PW6 Sandeep Kumar, in his cross-examination deposed that Sher Singh reached the Hospital in the police vehicle and that he was with the SHO in the Hospital. It reasoned that if Sher Singh were present immediately after the occurrence, he would have also accompanied PW-18 in his Maruti Car to the hospital.

15. Discussing whether the respondents, in furtherance of a common intention, had caused fatal injuries to Chander Bhan, the trial court recorded its conclusions as follows:

"36. Now, the question arises whether all the accused persons in furtherance of their common intention had caused fatal injuries on the person of deceased Chander Bhan and had also attempted to kill PW Sandeep Kumar. As already stated, PW Sandeep Kumar was the only eye-witness to the whole incident which took place on the night intervening 26/27.6.92. Although, PW Sandeep Kumar had named all the four accused persons but in my opinion, his testimony cannot be taken on its face value so far as regard the involvement of accused Umed Singh, Brahm Singh and Randhir Singh was concerned. If the evidence of said witness is critically analyzed and dissected, the presence of accused Umed Singh, Brahm Singh and Randhir Singh at the spot appears to be improbable. It is pertinent to add that it has been deposed by this witness that on the crucial night he and his grandfather Chander Bhan were sleeping on separate cots in their Gher. The distance between the cots was about 3/4 ft. According to him, when he was woken up on hearing the noise, he had found all the four accused persons standing near their cots. When he had tried to get up, he was caught hold of by accused Brahm Singh and Umed Singh. When on hearing the noise his grandfather Chander Bhan woken up, he was fired upon by accused Raj Singh with his country made pistol which hit him in his chest.

CRL. A. 25/1998 Page 8

37. It was further deposed by this witness that when he tried to run away after freeing himself from accused Brahm Singh and Umed Singh, at the exhortation of accused Randhir Singh, accused Raj Singh had fired the bullet from his country made pistol which hit him on the back side of his head. In his cross-examination, it was revealed by him that when accused Raj Singh had fired on him, accused Umed Singh and Brahm Singh were still catching hold of him and at that time, he was in between the space of two cots. Now, if this part of evidence is further analyzed the said part of testimony of this witness becomes doubtful and does not inspire confidence. In this connection, it will not be out of the place to mention that it is admitted case that both the above accused had gone unarmed in the Gher, as it is not the case of the prosecution that these two accused persons were armed with any weapon at that time. So, it does not appeal to the reason that if any person would go to his enemy‟s camp with a view to kill him, he would go there unarmed. Secondly, if this witness was sitting in between the two cots as was claimed by him. It was not possible for about two accused person to have caught hold of him in such limited space of 3/4 ft. At the same time, it may also be added that admittedly, both the accused persons namely Brahm Singh and Umed Singh were fully grown up persons and were stronger than PW Sandeep Kumar and it was quite impossible that he could have run away from the spot after extricating himself from the clutches of both the accused persons. Moreover, there is no evidence on record that both the accused persons had chased PW Sandeep Kumar in order to catch hold of him. There is also no evidence worth the name that both the accused persons had inflicted any injury on the person of Sandeep Kumar at that time. It is unnatural that if the accused persons having enmity with Sandeep Kumar had come to his Gher, in order to kill him, they will deal with him softly in a friendly atmosphere.

38. Apart from that, if Sandeep Kumar was fired upon at a time when he was being caught hold of by these two persons, naturally he would fallen down then and there and his blood would have been lying near in between two cots but no such blood of Sandeep Kumar was found lying and no such blood was lifted by Inspector Rohtash Singh from the Gher and no such blood was sent to CFSL for chemical analysis.

In addition to it, if PW Sandeep Kumar would have been fired upon from a close range when he was being caught hold of by accused Brahm Singh and Umed Singh, naturally, accused Brahm Singh and Umed Singh would have also sustained some pellet injuries but no such pellet injuries were found on their person at the time of their arrest.

39. It was held by the Hon‟ble Supreme Court in Judgments Today, 1991 (5) (SC) 109, in case Shyam Sunder and Ors. Vs. State of U.P. „that the prosecution version was that the third appellant fired a shot at the deceased when the second appellant was hold the deceased. It is highly artificial and improbable because if the deceased had been shot at the time when the second appellant was hold the deceased, the second appellant would also have received some pellets.‟ Consequently, on this ground also the presence of both these accused persons at the spot appears to be improbable and doubtful in the absence of any corroborative evidence on record. It appears that the names of both these accused persons have been added in order to take revenge by the complainant party from them with whom they have history of enmity. In these circumstances, both the accused persons have to be given the benefit of doubt.

40. Similarly, the presence of accused Randhir Singh at the spot also appears to be highly doubtful. He was admittedly unarmed and was not carrying any weapon of offence

CRL. A. 25/1998 Page 9 at the time of incident. He has no personal enmity either with Kapur Singh or with his family members. He had not played any part at that relevant time and had not caught hold of either PW Sandeep Kumar or his grandfather Chander Bhan. The only part attributed to him was that he had exhorted accused Raj Singh to kill PW Sandeep Kumar. Now, if accused Raj Singh had also come to the spot armed with country made pistol in order to seek revenge and in order to settle the old score with the members of the family of complainant Kapur Singh, there was no reason for him to have exhorted in order to inspire him to kill PW Sandeep Kumar. He does not appear to have even touched the victim. It appears that his name has been dragged after due deliberation as he appears to be sympathizer of accused Raj Singh and his brothers. Consequently, his presence at the spot, in my opinion, is quite doubtful and suspicious and, therefore, he has also to be given the benefit of doubt."

16. It is, thus evident that the trial court discarded the prosecution version so far as the role ascribed to the respondents herein was concerned; they were consequently acquitted. The question is, whether the State‟s appeal has presented features in the impugned judgment, which warrant interference by this Court in appeal.

17. The facts show that there was previous enmity between the family members of the deceased and Raj Singh, over a patch of land, used as a thoroughfare. The trial court took care that Raj Singh‟s role was examined separately, and the evidence carefully weighed, while recording its conclusions. In this context, the Court notices the judgment of the Supreme Court, reported as Eknath Ganpat Aher v. State of Maharastra, 2010 (3) AD (Cr) 197, where it was held that:

"It is an accepted proposition that in the case of group rivalries and enmities, there is a general tendency to rope in as many persons as possible as having participated in the assault. In such situations, the Courts are called upon to be very cautious and sift the evidence with care. Where after a close scrutiny of the evidence, a reasonable doubt arises in the mind of the Court with regard to the participation of any of those who have been roped in, the Court would be obliged to give the benefit of doubt to them."

The present case, is one such where the rule of caution indicated by the Supreme Court needs to be followed. The trial court‟s approach, in this regard cannot be faulted.

18. The Court notices that there are unexplained and irreconciliable gaps and contradictions, in the prosecution story. First, the presence of PW-12 Sher Singh at the spot, at or immediately after the incident is highly suspect. He does not mention in his deposition about having heard two gunshots. He says that upon reaching the spot, he found Sandeep unconscious. The latter,

CRL. A. 25/1998 Page 10 however, in his evidence, says that he saw Sher Singh, and that when he reached there, the assailants fled. The two versions cannot stand together. It has also come on the record that Sher Singh actually reached the hospital, when Sandeep saw him. The contradictions in the prosecution version about the manner in which Sandeep was taken to the hospital, are also glaring; whereas PW-17 suggests that he was removed immediately, from the site, PW-18 says that he was taken from Kapur Singh‟s house. Another important aspect, which the Court cannot overlook is that the role ascribed to the respondents does not inspire confidence. It is alleged that Raj Singh fired at the deceased, and that Umed Singh and Brahm Singh caught hold of him, and Randhir exhorted Raj Singh to kill Sandeep. Furthermore, Randhir‟s presence at the site is suspect, since he is not mentioned in the sketch plan Ex. PW-4/A, which was prepared upon the pointing out, of PW-6. Lastly and importantly, the presence of the respondents is implausible, because if indeed they stayed back to kill Sandeep, after killing his grandfather for the purpose of killing him, there was no need for exhortation by Randhir. This, coupled with the conflicting versions by PW-17 about the state of the light, cast grave doubts about the fairness and reliability of the prosecution version.

19. In Ghurey Lal v. State of UP, 2008 (10) SCC 450, the Supreme Court, after reviewing the previous decision reported as Chandrappa & Others v. State of Karnataka, (2007) 4 SCC 415 indicated what ought to be the correct approach that an Appellate Court should adopt, while dealing with appeals against orders of acquittal. The relevant discussion is as follows:

"In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court's acquittal :

1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so.

A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court's decision. "Very substantial and compelling reasons" exist when :

(i) The trial court's conclusion with regard to the facts is palpably wrong;

(ii) The trial court's decision was based on an erroneous view of law;

(iii) The trial court's judgment is likely to result in "grave miscarriage of justice";

CRL. A. 25/1998 Page 11

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court's judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.

3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.

Had the well settled principles been followed by the High Court, the accused would have been set free long ago. Though the appellate court's power is wide and extensive, it must be used with great care and caution."

In the present case, this Court is of the opinion that the findings and conclusions of the trial court are based on a correct appreciation of the evidence led by the prosecution. The record does not disclose any substantial or compelling reason, warranting interference with the acquittal recorded by the impugned judgment. The appeal therefore, has to fail; it is accordingly dismissed.

                                                                          S. RAVINDRA BHAT, J




                                                                                  G. P. MITTAL, J
FEBRUARY 28, 2011




CRL. A. 25/1998                                                                               Page 12