Judgment:
R.C. Mishra, J.
1. The State is in appeal against acquittal of all the respondents in respect of the offences punishable under Sections 120-B, 302 and in the alternative of 302 read with 34 of the IPC and Sections 25 and 27 of the Arms Act. The corresponding judgment passed on 09.11.1992 by Additional Sessions Judge, Harda in Sessions Trial No. 207/1991 is the subject matter of challenge in this appeal.
2. The prosecution case, in short, may be stated thus:
(i) At the relevant point of time, Ramesh (since deceased) and respondents were residing in Village Chhoti Harda falling within the local jurisdiction of Police Station Harda. However, their relations were strained as they were the supporters of the rival political groups in the Panchayat Elections held in the year 1990 and also in the Lok Shaba Elections. Against this backdrop, counter cases were registered against the members of these rival groups on 28.03.1991.
(ii) On 22.06.1991, Ramesh along with his elder brother Har Narayan (PW1) and co-villagers Mahesh (PW2) and Narayan (PW4) had come to Harda to purchase fertilizer from the Co-operative Bank. Before that, Sita Bai (PW3), the wife of Har Narayan had already come to Harda and was staying at the house of her brother Hari Prasad (PW5) that was situated at Annapura, Harda. On being informed about nonavailability of the fertilizer, Ramesh and his companions went to the house of Hari Prasad and asked Sita Bai to accompany for their return home and, for the purpose, these five persons reached the Bus Stand at about 4 p.m.
(iii) At the Bus Stand, Ramesh and Mahesh entered into a Hotel known as Mama Hotel whereas the other members of the group stayed on the opposite side of the road affront the hotel. After taking tea, Ramesh was first to come out of the hotel and was followed by Mahesh. At this point of time only, accused/respondent Nos. 1 and 2 namely Mohan and Prahlad (hereinafter shall be referred to as 'A1 and A2') came there on a motorcycle, that was being driven by A2. Name of the respondent No. 3 Jagdish (for short 'A3') was written on the vehicle. A2 exhorted and the pillion rider viz. A1 fired at Ramesh through a katta (a country made pistol) and, immediately thereafter, they fled away from the spot on the motorcycle.
(iv) Sustaining gunshot injury in the abdomen, Ramesh fell down and was immediately taken on a hath thela (handcart) to the Government Hospital. After a preliminary examination, Dr. Kailash Narayan (PW10) advised X-ray of Ramesh's abdomen and referred the case to Surgical Specialist Dr. Rajendra Kumar Patel (PW14) for further opinion and treatment.
(v) It was upon the information given by Dr. Kailash Narayan by sending a Memo (Ex.P-10) through wardboy Devanand (PW12) that a case under Section 307 of the IPC was registered by SHO M.K. Shrivastava (PW17) by scribing the FIR (Ex.P-18).
(vi) Observing deteriorating condition of unconscious Ramesh, the medical experts advised his family members to shift him to any Medical College for further treatment. Accordingly, injured Ramesh was put in a jeep for being taken to Indore by constable Shivshankar (PW15). However, in the transit near Bijawad, Ramesh breathed his last. His dead body was brought back to Harda in the same jeep.
(vii) On receipt of information regarding death of Ramesh from constable Shivshankar, ASI P.N. Bharti (PW16) recorded the marg initiation (Ex.P-13). After inquest proceedings, the dead body was sent to Civil Hospital, Harda for post-mortem. Autopsy Surgeon Dr. Rajendra Kumar Patel opined that Ramesh's death was caused due to shock resulting from firearm injury to vital organs. In the light of finding of the marg inquiry, the case was converted into one of murder.
(viii) During investigation, the respondents were apprehended. At the instance of A1, the weapon of offence viz. katta and the motorcycle used for commission thereof were recovered.
(ix) Upon completion of the investigation, charge sheet was submitted before JMFC, Harda who committed the case to the Court of Session for trial.
3. All the respondents were charged with offences punishable under Sections 120-B, 302 and in the alternative 302 read with Section 34 of the IPC and Sections 25 and 27 of the Arms Act. They abjured the guilt. In their examinations, under Section 313 of the Code of Criminal Procedure (for short 'the Code'), they specifically pleaded false implication due to prevailing animosity in view of party bandi (group rivalry).
4. The prosecution sought to prove the charges by examining as many as 17 witnesses including Har Narayan (PW1), Mahesh (PW2), Sita Bai (PW3) as eyewitnesses to the alleged murder and Chheetar (PW7), a rickshaw puller, as the witness to involvement of A3 as the instigator thereof. On the request of defence, Superintendent of Police was directed to produce relevant entries of the Rojnamcha in evidence, which were proved by ASI D.R. Mehra (DW1). This apart, a practicing Advocate Suresh Chand Verma (DW2) was also called in evidence to prove the Court proceedings relating to release of the seized motorcycle in favour of its registered owner Babulal (PW11).
5. The disturbing feature of this case is that judgment under challenge does not fulfill the mandatory requirements of Section 354(1)(b) of the Code and the corresponding instructions contained in Rule 240 of the Rules and Orders (Criminal) and particularly, in Sub-rule (7) thereof for guidance of the Criminal Courts. Moreover, a bare perusal of the record would reveal that the judgment, containing a plethora of as many as 23 precedents, was pronounced immediately after recording the statement of Suresh Chand Verma (DW2). Although in Para 35 of the judgment, learned trial Judge had expressed his disinclination to enumerate the contradictions, omissions and other infirmities in the prosecution evidence due to time-constraint yet, as indicated already, the judgment was delivered on the date fixed for defence evidence. This apart, use of word 'judicial inquiry' in the opening paragraph of the judgment is also indicative of the hot haste in which the judgment was composed.
6. Learned Deputy Advocate General, while criticizing the approach of learned trial Judge, has contended that the matter should be remanded for writing a judgment afresh in view of the fact that it does not contain any discussion regarding the evidence on record.
7. After examining the judgment in question, we entirely agree with the learned Deputy Advocate General that the learned trial Judge cited decisions of the Apex Court on various aspects of appreciation of evidence even without discussing the prosecution evidence on record. The question, therefore, arises as to whether the case should be remanded to the trial Court for writing a fresh judgment in accordance with law ?
8. Having given an anxious consideration to the prayer made by the learned Deputy Advocate General, we are of the opinion that remanding the case, that relates to an incident taken place as early as on 22.06.1991, to the trial Court for a decision afresh would not be necessary as this Court being a final Court of facts is vested with the jurisdiction to reappraise the evidence while hearing the appeal against acquittal also (Mohinder Singh v. State of Punjab : 1986CriLJ834 followed).
9. In this view of the matter, we have heard the learned Deputy Advocate General and learned Senior Counsel for the respondents at length and have carefully examined the record in the light of the arguments advanced and the limits circumscribing jurisdiction of this Court in an appeal against acquittal.
10. Legality and propriety of the order of acquittal have been challenged primarily on the ground of what is termed as an apparent mis-appreciation of the incriminating pieces of evidence on record particularly the eyewitness' account. In response, learned Senior Counsel, while making reference to the reasoning assigned by learned trial Judge for arriving at various findings, has submitted that the acquittal of each one of the respondents is well-merited. He is further of the view that even if the prosecution evidence is re-appreciated, the outcome would remain unaltered in the face of serious infirmities as highlighted in the judgment.
11. In order to appreciate the merits of the rival contentions in a proper perspective, it would be necessary to first advert to the medical evidence available on record. Dr. Kailash Narayan (PW10), who had examined Ramesh immediately after the incident, proved the existence of the following injury:
Firearm wound on left side abdomen vertically oven in shape, 6 cm x 5 cm in size, location on lateral side abdomen, the middle border of wound 5 cm in size to the umbilicus and upper border of wound is 5 cm above the level umbilicus, tattooing of 2.5 cm encircling the wound also present, loop of large gut with omuntum protruding through the wound, size 10 cm x 8 cm, margins of wound lacerated and profusely bleeding.
In his opinion, the injury was dangerous to life and was likely to cause death of Ramesh. According to him, after advising radiological examination of abdomen, he referred the case to Surgical Specialist Dr. Rajendra Kumar Patel (PW14) for further examination, opinion and treatment. The contents of bed-head ticket (Ex.P-14) not only corroborated the evidence of Dr. Kailash Narayan but also reflected the line of treatment adopted by Dr. Rajendra Kumar Patel. In the radiological examination, as suggested, multiple pellets were seen. The X-ray plates (Ex.P-9) and the corresponding report (Ex.P-10) were also tendered in evidence. The bed-head ticket also contained the fact that Ramesh was referred to Medical College Hospital for further treatment.
12. Substantiating the fact that Ramesh, in a seriously injured condition, was taken in a Jeep to Indore, his brother-in-law Hari Prasad (PW5) stated that he had also started for Indore by a bus but, in the transit between double chowki and chapda found the jeep returning to Harda and was informed about death of Ramesh. According to him, since tube of the jeep punctured, dead body of Ramesh could be brought to Harda at about 3.30 a.m. The marg intimation (Ex.P-13) also indicated that Ramesh had succumbed to the injuries at Vijaybad Distt. Dewas while being taken to Indore for necessary treatment.
13. Dr. Rajendra Kumar Patel testified that the following antimortem external injuries were found on the body of Ramesh:
'Stitched wound 4' vertical 13/4' left to umbilicus in which rubber drain is present, through which blood mixed with bile stained fluid coming out with gases. Lower end of the wound is 40' above the left heel. Venesechon wound on left leg medial side. The abdomen was distended and stomach was empty having hole of 6' x 4'.
According to him, on internal examination, he further noticed:
(i) a big hole in the size of 6' x 4' on the stomach at the upper surface of ureter.
(ii) hilum of spleen burnt and blood clot & pellets present.
The autopsy surgeon also testified that the clothes of Ramesh reflected corresponding marks of the gunshot. According to him, white small shirt worn by Ramesh was burnt below left pocket in 6' x 4' area whereas his white vest contained mark of pellets 6' x 3' in size and blood spots were also noticed on vest as well as on paijama. His evidence further suggested that these clothes and shell of bullet, cotton wool and pellets extricated from the dead body were preserved for forensic examination. In his opinion, the death was caused due to shock resulting from firearm injury to vital organs.
14. From the medical evidence, it was clearly established that Ramesh had met with a homicidal death and this fact was also not disputed.
15. The reasons ascribed by the learned trial Judge for recording the finding of not guilty may be enumerated as under:
(i) The eyewitnesses were not only related witnesses but were also chance witnesses. There were material omissions and contradictions in the statements of alleged eyewitnesses. Even after asserting in their case diary statement that Ramesh was fired from a distance of 4 to 5 paces, the eyewitnesses changed the version in their sworn testimony apparently in the light of the ballistic report by deposing that the shot was fired from a distance of nearly 18 inches. No explanation was given by the eyewitnesses as to why corresponding information was not given to police or to Dr. Kailash Narayan (PW10) by any one of them.
(ii) Although, Sitabai (PW3) had stated that she had narrated the incident to a police officer in the hospital yet, in the corresponding letter of request for postmortem, name of Jagdish was written as the author of gunshot injury.
(iii) The statements of witnesses recorded by ASI P.N. Bharti (PW16) during marg enquiry were not placed on record.
(iv) Occupiers of the hotel and shops situated at the bus stand could have been the natural and probable witnesses to the incident but they were not produced in evidence and handcart puller was not examined.
(v) Though declared hostile, the statement of Narayan (PW4) and Chheetar (PW7) contradicting the evidence of other eyewitnesses could be taken into account to discard the prosecution version.
(vi) The evidence as to involvement of A3 in the conspiracy leading to murder of Ramesh given by Ram Avtar (PW13), a near relative of the deceased, did not inspire confidence. The motorcycle was not proved to be belonging to Jagdish.
(vii) The investigation was tainted with soft peddling and indifferent attitude of the investigating officer. Although, he claimed to have visited the spot immediately after registering the case under Section 307 of the IPC against unknown persons but nonseizure of blood and other articles from the spot coupled with non-preparation of spot map completely belies his statement. There were material interpolations in the corresponding entries in the Roznamcha. These entries as well as the admissions made by Investigating Officer M.K. Shrivastava (PW17) reflect that some other persons were also involved in the incident.
16. In addition to the medical evidence, the case of the prosecution against the respondents was based on:
(i) Ocular testimony as to the involvement of A1 and A2 in causing death of Ramesh.
(ii) Evidence regarding complicity of A3 as the mastermind behind killing of Ramesh.
(iii) Recovery of the weapon of offence and vehicle used for commission thereof at the instance of A1.
17. Har Narayan (PW1) vividly described as to how in the wake of enmity due to panchayat election, his younger brother Ramesh was shot dead. According to him, on the fateful day, he had come to Harda along with Ramesh, Mahesh and Narayan to take delivery of fertilizer from the Co-operative Bank and on being informed about non-availability thereof, went to house of his brother-in-law Hari Prasad where his wife Sita Bai was staying and after taking her, had reached the bus stand for returning home. He categorically stated that, at the Bus Stand, while standing with his wife Sita Bai at the other side of the road, he was able to witness the incident. He clearly deposed that Ramesh was shot at through a katta by A1, who had arrived at the spot sitting as a pillion rider on the motorcycle, bearing name of A3 and driven by A2 at the moment when Ramesh was coming out of Mama Hotel along with Mahesh. It also came in his evidence that the shot was fired from a distance of only Sava Hath (one and quarter hand) and, thereafter, both A1 and A2 had fled away towards Handiya on the same motorcycle.
18. Sita Bai (PW3) substantially corroborated the abovementioned facts as stated by her husband Har Narayan on oath. Her brother Hari Prasad (PW5) also came forward with a corroborative statement asserting that he had gone to the Bus stand to send her and her family members off.
19. It is true that other eyewitnesses namely Har Narayan (PW1), his wife Sitabai (PW3) and her brother Hari Narayan (PW5) are apparently interested witnesses but their interestedness is confined to bring the real culprit to book. In other words, they were not interested in implicating innocent persons absolutely on false grounds. As the incident had taken place suddenly and had ended within couple of minutes, the eyewitnesses were not expected to get a clear and lasting impression of what had happened. The minor inconsistencies, as highlighted by learned trial Judge, in their statements, were not sufficient to make the eyewitnesses unreliable (Kedar v. State of M.P. : (1982)2SCC112 referred to).
20. Amongst the independent eyewitnesses, Narayan (PW4) was declared hostile but nothing incriminating could be brought against any one of the accused in the cross-examination by the public prosecutor. Admittedly, Narayan, though prosecuted at the instance of A3, is a distant relative of the respondents. However, no direct relationship could be brought on record between the deceased and Mahesh (PW2), who fully corroborated the prosecution version by asserting that Ramesh was only a few paces ahead of him when A1 had fired the shot that proved fatal to Ramesh. As per his statement, A1 had come there from the side of Handiya by riding on a motorcycle driven by his nephew A2 and after shooting at Ramesh from a distance of only 1 feet had returned with A2 on the same vehicle only.
21. Chheetar (PW7), a rickshaw puller, was called in evidence to prove the previous and subsequent conduct of A3 of bringing A1 and A2 on a motorcycle upto a nearby place; of handing over presumably the firearm to A1; of imparting necessary instructions to go to the spot and carry out the plan cautiously and of leaving the place after the execution of the plan on the motorcycle driven by A2. But Chheetar who, on the first occasion, appeared in a drunken condition before the trial Court, did not support the corresponding version as reflected in his case diary statement (Ex.P-11). As per his statement, he had only heard the gunshot near Mama Hotel but was not able to see either the person who had fired the shot or any one running away from the spot was apparently not natural. Chheetar also admitted that as many as 10 supporters of the respondents were present in the Court premises at the time of recording of his statement.
22. According to Mahesh (PW2), immediately after the firing incident, nearby shops situated at the Bus Stand were closed. He further stated that he was amongst the persons who had carried Ramesh to the Hospital on a handcart that was found lying at the spot.
23. Dr. Kailash Narayan (PW10) corroborated the fact, as reflected in his report (Ex.P-7), that it was Mahesh only who had brought injured and unconscious Ramesh before him. Thus, Mahesh was not a planted eyewitness but learned trial Judge discarded his eyewitness' account primarily on the ground that in the police statement (Ex.D-2), he had deposed that Ramesh was shot at from a distance of 4 or 5 paces. But, in the surrounding circumstances, Mahesh (PW2), who is a witness from rural area, could hardly be expected to have marked the precise distance at which the person shooting the Katta was standing (Janak Singh v. State of U.P. : 1972CriLJ1177 relied on).
24. Dr. Rajendra Kumar Patel (PW14), who had the occasion to examine the gunshot injuries internally, did not give a definite answer to the question as to whether the firearm was discharged from a distance of 1 to 3 inches. In the cross-examination, attention of Dr. Kailash Narayan (PW10) was also invited to the relevant excerpts from Modi's Medical Jurisprudence and Toxicology as well as Taylor's Authoritative work on the subject. However, even after admitting that the firearm injury was a 'nearcontact' wound, the medical expert stated that the exact distance of muzzle and situs of the injury could only be ascertained by the ballistic expert. The conclusive opinion on the point was, ultimately expressed by the ballistic expert in his report (Ex.P-19). Accordingly, the presence of blackening in the shirt and vest of the deceased was suggestive of the inference that the corresponding gunshot was fired from a distance of less than 18 inches.
25. Although, sounds improbable yet even if it is assumed that the name of the assailant was not disclosed by Mahesh (PW2) to Dr. Kailash Narayan (PW10), the eyewitness' account rendered by Mahesh would not be discarded on this count (Pattipati Venkaiah v. State of A.P. : 1972CriLJ1177 referred to). Further, if the other probability that even after being apprised of the identity of the assailants, the medical expert did not prefer to record the same in the medico-legal report (Ex.P-7) is accepted, it would also not be fatal to the veracity of the prosecution case as the doctor was not under duty to enquire about the actual assailant and the inquiry was to confine to the question as to how Ramesh had received the injury, namely the weapon used for causing it etc. so as to enable him to determine the correct line of treatment (See P. Babu v. State of A.P. : 1993CriLJ3547 ).
26. Non-production of the statements recorded during the inquest proceeding by ASI P.N. Bharti (PW16) leading to scribing of an unnecessary remark in the requisition for the post-mortem (Ex.P-15) that A3 was the author of the gunshot injury did not assume any significance simply because Mahesh (PW2) was not cross-examined with reference to any inconsistent statement said to have been recorded during marg inquiry.
27. As rightly observed by the learned trial Judge, the investigation was not only defective but also suffered from indifference. Even though, Investigating Officer M.K. Shrivastava (PW17) asserted that the FIR (Ex.P-18) was recorded by him on the basis of memo (Ex.P-10) forwarded by Dr. Kailash Nayaran (PW10) yet, his evidence is silent on the point as to wherefrom he gathered the information, not mentioned in the memo submitted by the ward boy Devanand Patodiya (PW12), that the offence was committed at Handiya Bus Stand. This unexplained discrepancy was indicative of a tainted investigation right from the beginning.
28. Learned Senior Counsel strenuously contended that the conduct of the eyewitnesses in not disclosing the identity of the assailants even after coming into contact with the police was apparently unnatural. According to him, the fact that Har Narayan (PW1), the elder brother of Ramesh, did not name the assailants while describing cause of death in the inquest report (Ex.P-2) was also sufficient to doubt his presence and also that of his wife Sita Bai (PW3) and brother-in-law Hari Prasad (PW5) on the spot. To buttress the contention, reference has been made to a decision of the Apex Court in Suresh Rai v. State of Bihar : 2000CriLJ3457 .
29. However, as laid down by the Supreme Court in Podda Narayana v. State of A.P. : AIR1975SC1252 and reaffirmed by a three Judge Bench in Radha Mohan v. State of U.P. : 2006CriLJ1121 :
the proceedings under Section 174 have a very limited scope. The object of the proceedings is merely to ascertain whether a person has died under suspicious circumstances or an unnatural death and if so what is the apparent cause of the death. The question regarding the details as to how the deceased was assaulted or who assaulted him or under what circumstances he was assaulted is foreign to the ambit and scope of the proceedings under Section 174. Neither in practice nor in law was it necessary for the police to mention those details in the inquest report.
30. Accordingly, no significance could be attached to nonmention of names of the assailants in the inquest report.
31. The Investigation means collection of evidence and starts at the moment the police officer, having come to know about the commission of a cognizable offence takes necessary steps for the same. It obviously consists of proceeding to the spot. But, to our utter dismay, the Investigating Officer did not bother to visit the place of occurrence. Absence of crime number on the formal application for medical examination of Ramesh also reflects that the FIR (Ex.P-18) was recorded subsequently. We do not intend to burden this judgment with a detailed note pointing out various defects in the investigation as it is well settled that a defective investigation can not, by itself, be a ground of acquittal if the prosecution case is established by other cogent evidence. The only requirement is that in such a case, the Court has to circumspect in evaluating the evidence (See. Dhanraj Singh v. State of Punjab : 2004CriLJ1807 ). The contaminated conduct of police officials should not stand in the way of evaluating the evidence by the Court otherwise the designed mischief would be perpetuated and justice would be denied to the complainant party (Paras Yadav v. State of Bihar : 1999CriLJ1122 relied on).
32. Non-production of any shopkeeper or any passenger or any witness from the locality or the handcart owner was also not sufficient to discredit the prosecution version as against A1 and A2 merely due to remissness of the Investigating Officer (Ashok Kumar v. State of Rajasthan : 1990CriLJ2276 followed).
33. Seizure of blood from the spot could only have corroborative value. As such, non-seizure of blood from the spot or non-ascertainment of the exact spot of incident was not fatal in view of the categorical statement of Mahesh (PW2), the companion of the deceased at the relevant point of time (State of Punjab v. Hakam Singh : 2005CriLJ4111 referred to).
34. The panch witnesses selected for proving the recovery of Katta and motorcycle as per disclosure statement given by A1 were also not independent in the real sense of term. Ramdin (PW8) is the cousin of A3, the maternal uncle of A1, who happens to be the real uncle of A2. Hari Ram (PW9) also had a grudge against Ramesh as, admittedly, he was convicted under Section 326 of the IPC for causing grievous hurt to Ramdin, the brother of Ramesh. In these circumstances, it was not possible to reject testimony of M.K. Shrivastava (PW17) as to recovery of Katta and the motorcycle. According to him, he prepared the memorandum (Ex.P-4) as per information given by A1 and recovered one deshi katta and a motorcycle at the instance of A1 only. The katta thus, seized was sent for forensic examination along with the pellets and clothes of the deceased preserved by the autopsy surgeon Dr. Rajendra Kumar Patel (PW14). The ballistic expert Dr. J.K. Agrawal opined with certainty that the gunshot injury causing holes in the shirt and vest of the deceased could be caused by fire through katta. It was also observed that the pellets were compatible to a 12-bore cartridge capable of being fired through the katta.
35. To sum up, none of the reasons assigned by learned trial Judge to discard the overwhelming incriminating evidence against A1 and A2 regarding their respective overt acts in causing death of Ramesh, is worthy of acceptance.
36. Coming to the role attributed to A3 as the person devising the plan of murder and facilitating its execution, it may be observed that the prosecution evidence was rightly found to be deficient. While saying so, we are keeping in mind the wellestablished principle that direct evidence, being extremely rare, criminal conspiracy can be proved by the circumstantial evidence. In-fact because of the difficulties in having direct evidence of criminal conspiracy once reasonable ground is shown for believing that two or more persons have conspired to commit an offence then, anything done by anyone of them in reference to their common intention after the same is entertained becomes, according to Section 10 of the Evidence Act, relevant for proving both conspiracy and the offences committed pursuant thereto (Noor Mohammad v. State of Maharashtra : 1971CriLJ793 referred to).
37. But, as pointed out already, Chheetar (PW7) examined to give direct evidence as to involvement of A3 in the murder of Ramesh had turned hostile. Further, statement of Kailash (PW6), the brother-in-law of Ramesh, to the effect that about an hour before the murder, he had seen all the three respondents proceeding towards Harda on a motorcycle driven by A3 also did not inspire confidence. Ramavtar (PW13), a watchman, is another witness examined to establish the criminal conspiracy. However, his assertion that nearly 3 days prior to the incident in question, A3, while seeing Ramesh and Mahesh passing by on a motorcycle, had asked A1 in presence of A2 to kill Ramesh, by itself, was not trustworthy.
38. The seized motorcycle, bearing registration No. MB1-2456, was found to be registered in the name of Babulal (PW11). According to him, he had transferred the vehicle in favour of A3 as early as in the year 1986. Even if this statement is taken to be true, mere possession of motorcycle used by his relative for commission of murder of his political rival Ramesh would not be sufficient to prove the involvement of A3 as the conspirator or mastermind behind the murder.
39. In the face of these serious infirmities in the evidence relating to conspiracy, A3 was rightly given benefit of doubt.
40. In G.B. Patel v. State of Maharashtra : 1979CriLJ51 , the Apex Court quoted with approval the following principles laid down by Privy Council in Sheo Swarup vd. King Emperor 0043/1934 :
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 matter e.g. (i) the views of the trial Judge as to the credibility of the witnesses; (ii) the 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.
It was further explained that this Court should not disturb the order of acquittal unless the conclusions drawn on the evidence of record are found to be unreasonable, perverse or unsustainable.
41. Thus, although complicity of A3 in the murder of Ramesh could not be established beyond a reasonable doubt yet, acquittal of A1 and A2 for the offence was not justified. The obvious reasoning is - even if it is concluded that the interested witnesses were not able to view the incident as being standing at a considerable distance, the ocular testimony of Mahesh coupled with the medical and forensic evidence concerning the firearm seized from A1 and the recovery of the motorcycle from his possession was sufficient to prove complicity of A1 and A2 and the benefit of certain inconsistencies in the prosecution case caused due to apparent laxity of investigating officer could not be given to them. Nevertheless, their acquittal in respect of the offences under the Arms Act does not call for any interference in view of the fact that the prosecution sanction given by DM was not proved.
42. In the result, the appeal is allowed in part. The impugned order of acquittal, so far as it relates to A1 Mohan and A2 Prahlad, for the offence of murder and sharing common intention therefor, is hereby set aside. Instead, A1 and A2 are convicted under Sections 302 and 302 read with Section 34 of the IPC respectively and each one of them is sentenced to undergo life imprisonment. However, the acquittal of A3 Jagdish of all the charges and that of A1 and A2 for other charges are affirmed.
43. A1 and A2 are on bail. They are directed to surrender to their bail bonds before the trial Court on or before 15.07.2009 for being committed to the custody for undergoing remaining part of sentences. The bail bonds of A3 shall stand discharged. Appeal partly allowed.