State of U.P. (Now Uttarakhand ). Vs. Haridas Rai and ors. - Court Judgment

Excerpt:
1. questioning the acquittal of the respondents by the learned district & sessions judge, nainital vide order dated 16.05.1998 in sessions trial no. 319 of 1993, under section 302 read with section 34 of the indian penal code, 1860 (for short i.p.c.), this state appeal has been filed by the state of uttarakhand as well as criminal revision is filed by complainant-kripa sindhu vishwas. it would be worth mentioning that during the pendency of the appeal one of the appellants namely, haridas rai has expired, therefore, appeal against him stands abated.2. the facts, as highlighted by the prosecution version, are that complainant kripa sindhu vishwas (pw-1) and accused haridas rai and his brothers were having dispute with regard to the title of five bighas of land for many years. litigation was pending in the courts at khatima and those cases were pursued on behalf of the accused by accused ravindra nath sarkar. it has been further stated that civil litigation had been decided in favour of the complainant and since then the complainant was in possession of the land in question. on 1st july 1993 at about 7:00 a.m. complainant's father kalidas and his two brothers, namely, shukracharya and sudarshan were cultivating their other land. at about 8:30 a.m. four persons, namely, haridas rai, pranav, prashant sons of bhairavanand and ravindra nath armed with 'dao' came there and started causing injuries to his brothers. on raising an alarm by his father kalidas, the complainant along with ranjeet mandal and jai prakash challenged the accused persons. the accused along with their respective weapons ran away towards the southern side. the dead bodies of the brothers of the complainant were lying in the field. the matter was reported to the chowki in-charge, sitarganj vide written complaint ex. ka-1, on the basis of which chick f.i.r. (ex. ka-4) was recorded at 9:15 a.m. on 1st july 1993 and the g.d. entry (ex. ka-5) in this respect was also recorded.3. the investigation was handed over to inspector raj veer singh (pw-6), who inspected the spot and prepared the scaled site plan (ex. ka-6). he also took into possession the bloodstained earth and simple earth from the place of occurrence, which was sealed in a parcel vide memo ex. ka-7. panchnama of deceased shukracharya (ex. ka-8) along with other police papers including ex. ka-9 to ex. ka-12 was prepared by the investigating officer. similarly, thereafter inquest report of deceased sudarshan (ex. ka-13) along with other police papers (ex. ka-14 to ex. ka-17) was prepared. the dead bodies were sent for the postmortem.4. on 2nd july 1993 at 10:40 a.m., dr. s.s. kanyal (pw- 2) conducted the postmortem on the dead bodies of deceased shukracharya and sudarshan and prepared the postmortem reports ex. ka-2 and ex. ka-3 respectively.5. on completion of the investigation, the challan (ex. ka-18) was presented and the learned sessions judge charge sheeted the accused persons under sections 302 read with section 34 of the i.p.c., to which they pleaded not guilty and claimed trial.6. the prosecution, in order to prove its case, examined complainant-kripa sindhu vishwas (pw-1), the brother of deceased shukracharya and sudarshan, ranjeet mandal (pw-3), kalidas (pw-4), father of deceased and jai prakash (pw-5), the eye witnesses. dr. s.s. kanyal (pw-2) conducted the postmortem on the persons of the deceased and raj veer singh (pw-6) is the investigating officer.7. when examined under section 313 cr.p.c. the incriminating evidence was put to the accused persons by the prosecution, which they denied in toto and pleaded false implication. accused pranav stated that he suffers handicap of being lame and cannot run. accused ravindra nath stated that he is gram sabhapati and had appeared as witness in the civil litigation in favour of the accused persons, therefore, he has been falsely implicated. in defence accused produced mahendra singh as dw-1, who produced medical examination report (ex. kha-1) of ravindra nath and judgment of the additional civil judge (ex. kha-2) and copy of interim order (ex. kha-3). the disability/handicap certificate was also produced with regard to accused pranav rai.8. before adverting to the other details, the injuries on the persons of both the deceased are reproduced. as per the postmortem report (ex. ka-2) following injuries were found on the person of shukracharya: -rigor mortis was not present in the neck and jaw while it was present in the rest of the body. the skin of the back was peeled off. the upper lid of the left eye was found cut and there was hemorrhage found under the right eye, which has been described as injury no. 3 and the following injuries were found:-(i) incised wound 3 c.m. x .5 c.m. x bone deep on the forehead 3 c.m. above the lefteyebrow.(ii) incised wound 3 c.m. x 1 c.m. x bone deep on the right side of forehead 1 c.m. above the right eye.(iii) incised wound 4 c.m. x .5. c.m. x muscle deep on the left orbit.(iv) incised wound 1 c.m. x .5 c.m. x bone deep in the middle of nose.(v) incised wound 3 c.m. x .5 c.m. x muscle deep right side of chin.(vi) incised wound 18 c.m. x 2 c.m. x skin deep on the front of the neck from both sides 4 c.m. below the chin. on internal examination both the chambers of the heart were found empty. on the person of sudarshan (deceased), as per the postmortem report (ex. ka-3), the following ante mortem injuries were found: -9. rigor mortis had passed from the jaw and neck; however, it was present rest of the body. the skin of the right leg and upper arm was peeled off. right eye was redish and the following ante mortem injuries were found: -(i) incised wound 4 c.m. x .5 c.m. x bone deep on the right side of forehead obliquelyplaced just above right side of the eyebrow. (ii) incised wound 20 c.m. x 2 c.m. x bone deep on the right side of the face and the lower part.(iii) incised wound 6 c.m. x 1.5 c.m. x bone deep back side of the neck 4 c.m. of below injury no. (iv) incised wound 1 c.m. x .5 c.m. x bone deep on the index finger of right hand.on internal examination, both the chambers of heart were found empty. as per opinion of the doctor, injuries on the person of both the deceased were caused by sharp edged weapons and cause of death was due to ante mortem injuries.10. the trial court after taking into consideration the evidence and documents available on record acquitted all the accused persons mainly on the following grounds: -(i) the testimony of the eyewitnesses is contradictory and manner of occurrence stated by them does not appear to be plausible. (ii) the f.i.r. appears to have been recorded ante timed. there are over writings in the body of the f.i.r.(iii) as per the statement of complainant kripa sindhu vishwas (pw-1) there were severalhouses near the place of occurrence but no independent witness has been examined.(iv) the investigation in the present case is tainted and defective. the trial court pointed out that the sample of the bloodstained earth and simple earth lifted from the place of occurrence was not sent for the chemical examination.(v) the prosecution has failed to prove the motive on the part of the accused respondents rather complainant party had a strong motive to falsely implicate the accused persons.11. we have heard mr. nandan arya, learned a.g.a. for the state, mr. m.s. pal, learned sr. advocate assisted by mr. mukul singh, rajesh sharma and lalit sharma, learned counsel for the respondents and perused the entire material available on record.12. mr. nandan arya, learned a.g.a for the state contended that the f.i.r. was lodged with promptitude wherein the names of all the accused and the manner of occurrence has been clearly mentioned by the complainant. he further pointed out that the evidence of eyewitness ranjeet mandal (pw-3) is fully supported by kripa sindhu vishwas (pw-1) and kalidas (pw-4), brother and father of the deceased, who were present at the place of occurrence. therefore, their testimonies have not been shaken on any material account during the cross- examination. the findings of the trial court are perverse and the court has misinterpreted the evidence on record. the court below has erred in law in holding that the presence of ranjeet mandal (pw-3) and complainant kripa sindhu vishwas (pw-1) at the place of occurrence was doubtful.13. the learned a.g.a. vehemently contended that it is well proved from the record that kalidas (pw-4) was present in the field when shukracharya and sudarshan were ploughing their fields and complainant along with ranjeet mandal reached the place of occurrence on hearing the alarm raised by his father kalidas (pw-4). the learned a.g.a. further submitted that the prosecution has proved its case beyond reasonable doubt against the accused-respondents by examining the three eyewitnesses who were present at the place of occurrence and their testimony is consistent and reliable. learned a.g.a. further argued that occurrence took place in the broad daylight and the accused as well as complainant party were known to each other.14. on the other hand learned counsel for the accused- respondents vehemently opposed the argument raised by learned a.g.a. according to him, the first information report has been lodged much later than the time mentioned in the said chick f.i.r. he referred to the documents ex. ka-9 and ex. ka- 15 where the time of death in column no. 3 is mentioned as 7:30 a.m. whereas the time of occurrence as mentioned in the f.i.r. is 8:30 a.m. he further pointed out that there is overwriting with regard to the time of recording of the chick f.i.r. in inquest reports ex. ka-8 and ex. ka-13. from the above facts it appears that while preparing the panchnama and other papers chick report was not recorded. the prosecution has not given any explanation with regard to the above overwriting and the incorrect time of death mentioned in the police papers. thus genesis of occurrence as per the first information report is doubtful. the learned counsel for the respondents argued that testimonies of all the eyewitnesses are contradictory to each other and suffer from discrepancies. he referred to the statement of complainant kripa sindhu vishwas (pw-1), who stated that his father and brothers were ploughing the fields with the help of bullock whereas in the first information report, he mentions that they were ploughing the fields with a hired tractor. even ranjeet mandal (pw-3) stated that there was no tractor and kalidas was ploughing the field with the help of bullock. learned counsel for the accused- respondents argued that the investigating officer did not care to enquire as to how the fields were being ploughed whether with a tractor or with the help of bullocks. however, the discrepancies, such as, whether the field was being ploughed by the tractor or with the help of bullock and that, jai prakash had reached the place of occurrence later are minor and does not go to the root of the case. the above discrepancies are not material, as they are not referring to the manner of occurrence. moreover, some discrepancies are found to occur in the statements with the passage of time and also due to mental disposition such as shock at the time of occurrence. such normal discrepancies do not adversely affect the credibility of an eyewitness.15. learned counsel for the respondents further argued that jai prakash has totally demolished the prosecution case by stating that he had accompanied complainant-kripa sindhu vishwas to the police station for recording the f.i.r. he stated that he had seen the dead bodies of shukracharya and sudarshan at 4:00/4:30 a.m. in the field and had not seen any of the accused causing injuries to them. on the other hand complainant-kripa sindhu vishwas stated that jai prakash had reached later on, whereas ranjeet mandal (pw-3) stated that he had not seen jai prakash during the entire duration of occurrence. kalidas (pw-4) father of the deceased stated that he had not noticed whether jai prakash was present or not. learned counsel for the respondents urged that the presence of all the eyewitnesses at the place of occurrence is highly doubtful.13. on careful consideration of the rival submissions raised by learned counsel for the parties and on perusal of the entire material available on record, we are of the opinion the judgment passed by the learned trial court is perverse and the court below has misinterpreted the evidence available on record. it also reflects the misreading and misinterpretation of the evidence. the learned trial court has given too much importance to the minor lapses committed by the investigating officer while preparing the papers during the investigation. the death of shukracharya and sudarshan is homicidal on account of injuries sustained by the accused persons. from the perusal of the postmortem reports (ex. ka-2) and (ex. ka-3) and statement of dr. s.s. kanyal (pw-2), who conducted the postmortem on the person of deceased, the death was caused due to shock and hemorrhage resulting from ante mortem injuries. the inquest reports (ex. ka-8) and (ex. ka-13) also supported the prosecution case. however, from the evidence available on record, we have to ascertain as to whether the accused-respondents had caused the injuries on the person of the deceased or not. the prosecution adduced the evidence, in the form of eyewitness account, by examining complainant kripa sindhu vishwas (pw-1), kalidas (pw-4) brother and father of the deceased respectively and ranjeet mandal (pw-3). kalidas (pw-4) was present along with his two sons who had since died in the incident. he categorically stated that they were ploughing the fields at about 8:00/8:30 a.m. when suddenly both the sons raised alarm and he saw that all the four accused carrying 'dao' in their hands had encircled his both the sons. he raised an alarm but the accused gave a push to the eyewitness and thereafter started causing injuries with the help of 'dao' to his sons. meanwhile his son kripa sindhu and ranjeet mandal also reached the place of occrrence. he further stated that after seeing his both the sons having died, he became unconscious. kalidas (pw-4) has been strenuously cross-examined, however, the eyewitness has stood the test of the entire cross- examination but his testimony has not been shaken on any account. he categorically stated that all the four accused had caused injuries to his sons shukracharya and sudarshan. this witness has further stated that he had not seen any other person except complainant kripa sindhu vishwas and ranjeet mandal at the time of occurrence. according to him, initially he alone was present at the place of occurrence thereafter his son and ranjeet mandal came. similarly kripa sindhu vishwas and ranjeet mandal thoroughly withstood the test of cross- examination and categorically stated that on hearing the alarm raised by kalidas, they had reached the place of occurrence as they were only at a distance of 100 paces when they heard the hue and cry raised by kalidas and he had seen all the four accused causing injuries to deceased shukracharya and sudarshan with the help of 'dao' as a result of which they died at the spot. he denied the suggestion that he falsely implicated the accused persons on the asking of his son kripa sindhu vishwas. he categorically stated that he was at a distance of 5-6 paces from his sons when his sons were assaulted by the accused persons. after going through the testimony of all the three witnesses, we are of the view that their deposition has not been shaken at all during their deposition before the court.15. learned counsel for the respondents argued that there were houses of kiran sarkar, chhote thakur, prabhas rai and many other persons near the place of occurrence but none of them was examined by the prosecution. even the investigating officer stated that the other houses were situated at a distance of one kilometer or two furlong but there are no house towards the eastern and northern side of the occurrence. there is only one residence of kiran sarkar, which was at a distance of about 40 paces from the place of occurrence. a perusal of the site plan ex. ka-6 shows that some huts are located at some distance from the field of kalidas and there is dry river and kachcha passage between the field and those huts. however, there is no evidence that any one was living in those huts except in one hut which belonged to kiran sarkar. however it is not proved on record that kiran sarkar or anyone else was present in the hut at the time of occurrence. kalidas (pw-4) categorically stated that no other person except himself was present at the time of occurrence and thereafter ranjeet mandal and kripa sindhu vishwas had reached the spot. therefore, we find that testimony of the prosecution witnesses that no other person except the eyewitnesses was present appears to be credible and cogent. the observation of the trial court that no independent person from the neighbourhood have been produced, is not substantiated from any evidence on record. in fact it is not necessary to multiply the witnesses on the same point. it is not quantity but the quality of the evidence, which is important to be adduced by the prosecution. moreover, whatever evidence is available on record and the same is otherwise found satisfactory and trustworthy to establish the guilt of the accused-respondents beyond reasonable doubt, there is no need to multiply further witness. thus, the testimony of those witnesses, who have testified cannot be thrown outrightly on the ground that the other witnesses who could be produced, have not been produced. learned counsel for the respondents further submitted that accused pranav rai is lame and he could not participate in the commission of the crime as suggested by the prosecution. the argument of learned counsel for the respondents does not have any force as there is nothing on the record to prove that accused pranav rai was unable to walk.16. the apex court in the case of babu ram v. state of u.p. reported in [2002 scc (cri) 1400]; komal and others v. state of u.p. reported in [2002 scc (cri) 1666] duly supports the above proposition. the apex court in the case of komal (supra) held as under: - "learned counsel next contended that though, according to the statements of witnesses, some villagers had arrived at the place of occurrence when the members of the prosecution party were begin assaulted and they intervened in the matter, none of them has been examined in the case on hand. in our view, non-examination of these witnesses by itself would not affect the veracity of the prosecution case when the evidence of pws 2 and 4, the two injured eye witnesses who had received multiple injuries, has been found to be trustworthy and their evidence is corroborate by the informant pw 5 and supported by medical evidence as well as objective finding to the investigating officer."17. it is also contended that both kripa sindhu vishwas and kalidas are the interested and related witnesses, therefore, their testimony should not be relied upon. we do not find any force in the submission made by learned counsel for the accused-respondents. there is no rule of law or prudence, which requires that evidence of a related person must be discarded. moreover, it is normally seen that the related person witness would not like to spare the real culprits in place of some other person simply because of the murder of near and dear has been caused. it is also normally seen that the witnesses from the public are reluctant and avoid to appear and depose before the court. in the present case, on a careful scrutiny of all the three eyewitnesses, we find the same to be consistent and nothing has been elicited from their testimony, which could lead to the inference to make their testimony unreliable.18. learned counsel for the accused-respondents further argued that jai prakash (pw-5) has demolished the prosecution case. kripa sindhu vishwas (pw-1) in the first information report has mentioned the name of ranjeet mandal (pw-3) as well as jai prakash (pw-5) who were accompanying him when he reached the spot and all three of them had challenged the accused, however, he totally improved his statement while appearing before the court. he deposed before the court that jai prakash had reached later on. it is true that in the first information report, kripa sindhu vishwas stated that jai prakash had also reached the place of occurrence with him, however while deposing before the court, he categorically stated that jai prakash reached later. he has been fully supported on this account by ranjeet mandal (pw-3), who deposed that he had to go with kripa sindu vishwas to sitarganj together and they were at a distance of 100-200 paces when they heard an alarm raised by kalidas. kalidas also categorically stated that he had not seen anyone else except kripa sindhu vishwas and ranjeet mandal at the place of occurrence. we may mention that sometimes due to shock on account of having witnessed ghastly murder of two of his brothers, the complainant may not have been in proper frame of mind, thus few facts got jumbled up when he got the f.i.r. recorded immediately after the occurrence.19. the ocular testimony produced by the prosecution is fully supported by the medical evidence. as per the postmortem report (ex. ka-2) of shukracharya there are six incised wounds and as per postmortem report (ex. ka-3) of sudarshan, there are four incised wounds on their dead bodies. these injuries upon the person of the deceased persons could be caused by some sharp edged weapon. dr. s.s. kanyal stated that the death could have been caused on 1st july 1993 at 8:30 a.m. in the cross-examination, he stated that there could be variation of 4-6 hours in the duration of the death and therefore, it could be possible the death could occur at 4:00 a.m. however, this reply of the doctor is itself controverted by his further deposition that small intestine contained semi digested food. it could not be possible if death had occurred at 4:00 a.m. as meals taken by them on the previous night must have been fully digested and both of them must have also defalcated in the morning. it could be possible that both of them thereafter had eaten their breakfast in the morning before going to the fields i.e. around 5-6 a.m., thus, semi digested food was found at about 8:30 a.m. in the small intestine. the above circumstance belies the argument of learned counsel for the accused respondents that the death might have occurred at 4:00 a.m. in the morning.20. learned counsel for the accused-respondents submitted that the prosecution has not explained the injuries on the person of accused ravindra nath sarkar. he referred to the statement of dw-1 mahendra singh pharmacist posted in the jail hospital haldwani, who stated that the injuries on the person of accused ravindra sarkar were recorded by dr. s.m. pant. he was medically examined on 3rd july 1993 when he was admitted in the jail. however, this witness could not say that the injuries on his person were 6 or 7 days old or 6 hours old as he was not an expert. as per the statement of investigating officer raj veer singh (pw-6), accused ravindra sarkar was arrested on 1st july 1993 at 3:40 p.m. and g.d. no. 27 in this respect was recorded at 5:25 p.m. thus the medical examination of accused ravindra sarkar on 3rd july 1993 does not at all prove that those injuries were caused by the police at the time of his arrest on the asking of kalidas. thus, the findings of the trial court that the prosecution has not explained the injuries on the person of accused ravindra sarkar is misconceived as the accused had already been arrested on 1st july 1993, therefore, injuries on his person could be self-suffered or caused by a friendly hand.21. with regard to the argument of learned counsel for the accused-respondents that there are lapses in the investigation, which creates dent in the present case, we may say that due to fault of the investigating officer perpetrators of such a ghastly offence cannot be allowed to go scot-free. all the accused were armed with deadly weapons and they attacked the victims who were totally unarmed and more so when the prosecution version is fully proved by the consistent, credible and cogent eyewitness account. simply because the bloodstained earth was not sent for chemical examination, would not demolish the prosecution case. the occurrence admittedly took place in the field of kalidas. there is not even a suggestion to any of the witness that the occurrence took place at some other place.22. the above discussions clearly indicate that the prosecution has been able to establish the guilt of the accused persons. now, it is to be seen as to whether in the circumstances and evidence discussed above, this court can interfere with the judgment of the acquittal passed by the trial court in favour of the accused or not. the apex court in the case of allarakha k. mansur v. state of gujrat reported in [2002 (1) rcr (cri) 748] has held as under: -"the paramount consideration of the court should be to avoid miscarriage of justice. a miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. in a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the high court to re- appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the high court under all circumstances should not disturb such a finding."23. in the case of ramanand yadav v. prabhunath jha reported in [2003(12) scc 606], the apex court has held as under: -"there is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. the golden tread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. the paramount consideration of the court is to ensure that miscarriage of justice is prevented. a miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. in a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not."24. learned counsel for the accused-respondents referred to the judgment of apex court in the case of chandrappa and others v. state of karnataka reported in [2007 cri.l.j. 2136] and state of punjab v. gurnam kaur and others reported in [2009 (11) scc 225] to supplement his argument that if two views are possible, the judgment of acquittal should be not interfered with. an appeal against an order of acquittal will not be interfered with, merely because a different view is possible. there is presumtion of innocence in favour of accused, which is further strengthened by the acquittal in the present case.25. there is no dispute with the proposition submitted by the learned counsel for the accused-respondents. however, in view of the legal proposition as indicated above, while deciding the appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing the appeals against conviction. the appellate court has full power to review and re-appreciate and reconsider the evidence if the findings of the court in the judgement under appeal, were perverse and based on misreading of evidence. the dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and the principle of acquittals are always good regardless of justice to the victim, but the society demands special emphasis in the context of escalating crime and escape. the evil of acquitting a guilty person light heartedly goes much beyond the simple fact that just one guilty person has gone unpunished but if unmerited acquittals become general, they tend to lead to a cynical disregard of the law. too frequent acquittals of the guilty may lead to a public demand for harsher legal presumptions against indicted persons and more severe punishment for those who are found guilty. the judicial system has accountability towards the society and our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice realistic. now by the latest judgments, the power of the appellate court is consistently recognized to review the entire evidence and come to its own conclusion while considering the appeals against acquittal.26. after appraising the entire evidence, this court is of the opinion that the judgment passed by the trial court is perverse and contrary to the evidence available on record. the trial court has given too much importance to the minor discrepancies in the statements of the eyewitnesses, which are otherwise reliable and trustworthy. the presence of the eyewitnesses at the place of occurrence has been proved to be quite natural and plausible. in view of the above discussion, the state appeal as well as criminal revision is allowed. judgment and order dated 16.05.1998 passed by the district & sessions judge, nainital is set aside. however, accused-respondents are convicted under section 302 read with section 34 of the i.p.c. and sentenced to undergo imprisonment for life. they shall be taken into custody forthwith to serve out the sentence awarded by this court. the registry is directed to send back lower court record for compliance of the order passed by this court.

Judgment:
1. Questioning the acquittal of the respondents by the learned District & Sessions Judge, Nainital vide order dated 16.05.1998 in Sessions Trial No. 319 of 1993, under Section 302 read with Section 34 of the Indian Penal Code, 1860 (for short I.P.C.), this State appeal has been filed by the State of Uttarakhand as well as criminal revision is filed by complainant-Kripa Sindhu Vishwas. It would be worth mentioning that during the pendency of the appeal one of the appellants namely, Haridas Rai has expired, therefore, appeal against him stands abated.

2. The facts, as highlighted by the prosecution version, are that complainant Kripa Sindhu Vishwas (PW-1) and accused Haridas Rai and his brothers were having dispute with regard to the title of five bighas of land for many years. Litigation was pending in the courts at Khatima and those cases were pursued on behalf of the accused by accused Ravindra Nath Sarkar. It has been further stated that civil litigation had been decided in favour of the complainant and since then the complainant was in possession of the land in question. On 1st July 1993 at about 7:00 a.m. complainant's father Kalidas and his two brothers, namely, Shukracharya and Sudarshan were cultivating their other land. At about 8:30 a.m. four persons, namely, Haridas Rai, Pranav, Prashant sons of Bhairavanand and Ravindra Nath armed with 'Dao' came there and started causing injuries to his brothers. On raising an alarm by his father Kalidas, the complainant along with Ranjeet Mandal and Jai Prakash challenged the accused persons. The accused along with their respective weapons ran away towards the southern side. The dead bodies of the brothers of the complainant were lying in the field. The matter was reported to the Chowki In-charge, Sitarganj vide written complaint Ex. Ka-1, on the basis of which Chick F.I.R. (Ex. Ka-4) was recorded at 9:15 a.m. on 1st July 1993 and the G.D. entry (Ex. Ka-5) in this respect was also recorded.

3. The investigation was handed over to Inspector Raj Veer Singh (PW-6), who inspected the spot and prepared the scaled site plan (Ex. Ka-6). He also took into possession the bloodstained earth and simple earth from the place of occurrence, which was sealed in a parcel vide memo Ex. Ka-7. Panchnama of deceased Shukracharya (Ex. Ka-8) along with other police papers including Ex. Ka-9 to Ex. Ka-12 was prepared by the Investigating Officer. Similarly, thereafter inquest report of deceased Sudarshan (Ex. Ka-13) along with other police papers (Ex. Ka-14 to Ex. Ka-17) was prepared. The dead bodies were sent for the postmortem.

4. On 2nd July 1993 at 10:40 a.m., Dr. S.S. Kanyal (PW- 2) conducted the postmortem on the dead bodies of deceased Shukracharya and Sudarshan and prepared the postmortem reports Ex. Ka-2 and Ex. Ka-3 respectively.

5. On completion of the investigation, the challan (Ex. Ka-18) was presented and the learned Sessions Judge charge sheeted the accused persons under Sections 302 read with Section 34 of the I.P.C., to which they pleaded not guilty and claimed trial.

6. The prosecution, in order to prove its case, examined complainant-Kripa Sindhu Vishwas (PW-1), the brother of deceased Shukracharya and Sudarshan, Ranjeet Mandal (PW-3), Kalidas (PW-4), father of deceased and Jai Prakash (PW-5), the eye witnesses. Dr. S.S. Kanyal (PW-2) conducted the postmortem on the persons of the deceased and Raj Veer Singh (PW-6) is the Investigating Officer.

7. When examined under Section 313 Cr.P.C. the incriminating evidence was put to the accused persons by the prosecution, which they denied in toto and pleaded false implication. Accused Pranav stated that he suffers handicap of being lame and cannot run. Accused Ravindra Nath stated that he is Gram Sabhapati and had appeared as witness in the civil litigation in favour of the accused persons, therefore, he has been falsely implicated. In defence accused produced Mahendra Singh as DW-1, who produced medical examination report (Ex. Kha-1) of Ravindra Nath and judgment of the Additional Civil Judge (Ex. Kha-2) and copy of interim order (Ex. Kha-3). The disability/handicap certificate was also produced with regard to accused Pranav Rai.

8. Before adverting to the other details, the injuries on the persons of both the deceased are reproduced. As per the postmortem report (Ex. Ka-2) following injuries were found on the person of Shukracharya: -

Rigor mortis was not present in the neck and jaw while it was present in the rest of the body. The skin of the back was peeled off. The upper lid of the left eye was found cut and there was hemorrhage found under the right eye, which has been described as injury no. 3 and the following injuries were found:-

(i) Incised wound 3 c.m. x .5 c.m. x bone deep on the forehead 3 c.m. above the left

eyebrow.

(ii) Incised wound 3 c.m. x 1 c.m. x bone deep on the right side of forehead 1 c.m. above the right eye.

(iii) Incised wound 4 c.m. x .5. c.m. x muscle deep on the left orbit.

(iv) Incised wound 1 c.m. x .5 c.m. x bone deep in the middle of nose.

(v) Incised wound 3 c.m. x .5 c.m. x muscle deep right side of chin.

(vi) Incised wound 18 c.m. x 2 c.m. x skin deep on the front of the neck from both sides 4 c.m. below the chin. On internal examination both the chambers of the heart were found empty. On the person of Sudarshan (deceased), as per the postmortem report (Ex. Ka-3), the following ante mortem injuries were found: -

9. Rigor mortis had passed from the jaw and neck; however, it was present rest of the body. The skin of the right leg and upper arm was peeled off. Right eye was redish and the following ante mortem injuries were found: -

(i) Incised wound 4 c.m. x .5 c.m. x bone deep on the right side of forehead obliquely

placed just above right side of the eyebrow. (ii) Incised wound 20 c.m. x 2 c.m. x bone deep on the right side of the face and the lower part.

(iii) Incised wound 6 c.m. x 1.5 c.m. x bone deep back side of the neck 4 c.m. of below injury no.

(iv) Incised wound 1 c.m. x .5 c.m. x bone deep on the index finger of right hand.

On internal examination, both the chambers of heart were found empty. As per opinion of the doctor, injuries on the person of both the deceased were caused by sharp edged weapons and cause of death was due to ante mortem injuries.

10. The trial court after taking into consideration the evidence and documents available on record acquitted all the accused persons mainly on the following grounds: -

(i) The testimony of the eyewitnesses is contradictory and manner of occurrence stated by them does not appear to be plausible.

(ii) The F.I.R. appears to have been recorded ante timed. There are over writings in the body of the F.I.R.

(iii) As per the statement of complainant Kripa Sindhu Vishwas (PW-1) there were several

houses near the place of occurrence but no independent witness has been examined.

(iv) The investigation in the present case is tainted and defective. The trial court pointed out that the sample of the bloodstained earth and simple earth lifted from the place of occurrence was not sent for the chemical examination.

(v) The prosecution has failed to prove the motive on the part of the accused respondents rather complainant party had a strong motive to falsely implicate the accused persons.

11. We have heard Mr. Nandan Arya, learned A.G.A. for the State, Mr. M.S. Pal, learned Sr. Advocate assisted by Mr. Mukul Singh, Rajesh Sharma and Lalit Sharma, learned counsel for the respondents and perused the entire material available on record.

12. Mr. Nandan Arya, learned A.G.A for the State contended that the F.I.R. was lodged with promptitude wherein the names of all the accused and the manner of occurrence has been clearly mentioned by the complainant. He further pointed out that the evidence of eyewitness Ranjeet Mandal (PW-3) is fully supported by Kripa Sindhu Vishwas (PW-1) and Kalidas (PW-4), brother and father of the deceased, who were present at the place of occurrence. Therefore, their testimonies have not been shaken on any material account during the cross- examination. The findings of the trial court are perverse and the court has misinterpreted the evidence on record. The court below has erred in law in holding that the presence of Ranjeet Mandal (PW-3) and complainant Kripa Sindhu Vishwas (PW-1) at the place of occurrence was doubtful.

13. The learned A.G.A. vehemently contended that it is well proved from the record that Kalidas (PW-4) was present in the field when Shukracharya and Sudarshan were ploughing their fields and complainant along with Ranjeet Mandal reached the place of occurrence on hearing the alarm raised by his father Kalidas (PW-4). The learned A.G.A. further submitted that the prosecution has proved its case beyond reasonable doubt against the accused-respondents by examining the three eyewitnesses who were present at the place of occurrence and their testimony is consistent and reliable. Learned A.G.A. further argued that occurrence took place in the broad daylight and the accused as well as complainant party were known to each other.

14. On the other hand learned counsel for the accused- respondents vehemently opposed the argument raised by learned A.G.A. According to him, the first information report has been lodged much later than the time mentioned in the said Chick F.I.R. He referred to the documents Ex. Ka-9 and Ex. Ka- 15 where the time of death in Column No. 3 is mentioned as 7:30 a.m. whereas the time of occurrence as mentioned in the F.I.R. is 8:30 a.m. He further pointed out that there is overwriting with regard to the time of recording of the Chick F.I.R. in inquest reports Ex. Ka-8 and Ex. Ka-13. From the above facts it appears that while preparing the Panchnama and other papers Chick report was not recorded. The prosecution has not given any explanation with regard to the above overwriting and the incorrect time of death mentioned in the police papers. Thus genesis of occurrence as per the first information report is doubtful. The learned counsel for the respondents argued that testimonies of all the eyewitnesses are contradictory to each other and suffer from discrepancies. He referred to the statement of complainant Kripa Sindhu Vishwas (PW-1), who stated that his father and brothers were ploughing the fields with the help of bullock whereas in the first information report, he mentions that they were ploughing the fields with a hired tractor. Even Ranjeet Mandal (PW-3) stated that there was no tractor and Kalidas was ploughing the field with the help of bullock. Learned counsel for the accused- respondents argued that the Investigating Officer did not care to enquire as to how the fields were being ploughed whether with a tractor or with the help of bullocks. However, the discrepancies, such as, whether the field was being ploughed by the tractor or with the help of bullock and that, Jai Prakash had reached the place of occurrence later are minor and does not go to the root of the case. The above discrepancies are not material, as they are not referring to the manner of occurrence. Moreover, some discrepancies are found to occur in the statements with the passage of time and also due to mental disposition such as shock at the time of occurrence. Such normal discrepancies do not adversely affect the credibility of an eyewitness.

15. Learned counsel for the respondents further argued that Jai Prakash has totally demolished the prosecution case by stating that he had accompanied complainant-Kripa Sindhu Vishwas to the police station for recording the F.I.R. He stated that he had seen the dead bodies of Shukracharya and Sudarshan at 4:00/4:30 a.m. in the field and had not seen any of the accused causing injuries to them. On the other hand complainant-Kripa Sindhu Vishwas stated that Jai Prakash had reached later on, whereas Ranjeet Mandal (PW-3) stated that he had not seen Jai Prakash during the entire duration of occurrence. Kalidas (PW-4) father of the deceased stated that he had not noticed whether Jai Prakash was present or not. Learned counsel for the respondents urged that the presence of all the eyewitnesses at the place of occurrence is highly doubtful.

13. On careful consideration of the rival submissions raised by learned counsel for the parties and on perusal of the entire material available on record, we are of the opinion the judgment passed by the learned trial court is perverse and the court below has misinterpreted the evidence available on record. It also reflects the misreading and misinterpretation of the evidence. The learned trial court has given too much importance to the minor lapses committed by the Investigating Officer while preparing the papers during the investigation. The death of Shukracharya and Sudarshan is homicidal on account of injuries sustained by the accused persons. From the perusal of the postmortem reports (Ex. Ka-2) and (Ex. Ka-3) and statement of Dr. S.S. Kanyal (PW-2), who conducted the postmortem on the person of deceased, the death was caused due to shock and hemorrhage resulting from ante mortem injuries. The inquest reports (Ex. Ka-8) and (Ex. Ka-13) also supported the prosecution case. However, from the evidence available on record, we have to ascertain as to whether the accused-respondents had caused the injuries on the person of the deceased or not. The prosecution adduced the evidence, in the form of eyewitness account, by examining complainant Kripa Sindhu Vishwas (PW-1), Kalidas (PW-4) brother and father of the deceased respectively and Ranjeet Mandal (PW-3). Kalidas (PW-4) was present along with his two sons who had since died in the incident. He categorically stated that they were ploughing the fields at about 8:00/8:30 a.m. When suddenly both the sons raised alarm and he saw that all the four accused carrying 'Dao' in their hands had encircled his both the sons. He raised an alarm but the accused gave a push to the eyewitness and thereafter started causing injuries with the help of 'Dao' to his sons. Meanwhile his son Kripa Sindhu and Ranjeet Mandal also reached the place of occrrence. He further stated that after seeing his both the sons having died, he became unconscious. Kalidas (PW-4) has been strenuously cross-examined, however, the eyewitness has stood the test of the entire cross- examination but his testimony has not been shaken on any account. He categorically stated that all the four accused had caused injuries to his sons Shukracharya and Sudarshan. This witness has further stated that he had not seen any other person except complainant Kripa Sindhu Vishwas and Ranjeet Mandal at the time of occurrence. According to him, initially he alone was present at the place of occurrence thereafter his son and Ranjeet Mandal came. Similarly Kripa Sindhu Vishwas and Ranjeet Mandal thoroughly withstood the test of cross- examination and categorically stated that on hearing the alarm raised by Kalidas, they had reached the place of occurrence as they were only at a distance of 100 paces when they heard the hue and cry raised by Kalidas and he had seen all the four accused causing injuries to deceased Shukracharya and Sudarshan with the help of 'Dao' as a result of which they died at the spot. He denied the suggestion that he falsely implicated the accused persons on the asking of his son Kripa Sindhu Vishwas. He categorically stated that he was at a distance of 5-6 paces from his sons when his sons were assaulted by the accused persons. After going through the testimony of all the three witnesses, we are of the view that their deposition has not been shaken at all during their deposition before the court.

15. Learned counsel for the respondents argued that there were houses of Kiran Sarkar, Chhote Thakur, Prabhas Rai and many other persons near the place of occurrence but none of them was examined by the prosecution. Even the Investigating Officer stated that the other houses were situated at a distance of one kilometer or two furlong but there are no house towards the eastern and northern side of the occurrence. There is only one residence of Kiran Sarkar, which was at a distance of about 40 paces from the place of occurrence. A perusal of the site plan Ex. Ka-6 shows that some huts are located at some distance from the field of Kalidas and there is dry river and Kachcha passage between the field and those huts. However, there is no evidence that any one was living in those huts except in one hut which belonged to Kiran Sarkar. However it is not proved on record that Kiran Sarkar or anyone else was present in the hut at the time of occurrence. Kalidas (PW-4) categorically stated that no other person except himself was present at the time of occurrence and thereafter Ranjeet Mandal and Kripa Sindhu Vishwas had reached the spot. Therefore, we find that testimony of the prosecution witnesses that no other person except the eyewitnesses was present appears to be credible and cogent. The observation of the trial court that no independent person from the neighbourhood have been produced, is not substantiated from any evidence on record. In fact it is not necessary to multiply the witnesses on the same point. It is not quantity but the quality of the evidence, which is important to be adduced by the prosecution. Moreover, whatever evidence is available on record and the same is otherwise found satisfactory and trustworthy to establish the guilt of the accused-respondents beyond reasonable doubt, there is no need to multiply further witness. Thus, the testimony of those witnesses, who have testified cannot be thrown outrightly on the ground that the other witnesses who could be produced, have not been produced. Learned counsel for the respondents further submitted that accused Pranav Rai is lame and he could not participate in the commission of the crime as suggested by the prosecution. The argument of learned counsel for the respondents does not have any force as there is nothing on the record to prove that accused Pranav Rai was unable to walk.

16. The Apex Court in the case of Babu Ram v. State of U.P. reported in [2002 SCC (Cri) 1400]; Komal and others v. State of U.P. reported in [2002 SCC (Cri) 1666] duly supports the above proposition. The Apex Court in the case of Komal (Supra) held as under: - "Learned counsel next contended that though, according to the statements of witnesses, some villagers had arrived at the place of occurrence when the members of the prosecution party were begin assaulted and they intervened in the matter, none of them has been examined in the case on hand. In our view, non-examination of these witnesses by itself would not affect the veracity of the prosecution case when the evidence of PWs 2 and 4, the two injured eye witnesses who had received multiple injuries, has been found to be trustworthy and their evidence is corroborate by the informant PW 5 and supported by medical evidence as well as objective finding to the Investigating Officer."

17. It is also contended that both Kripa Sindhu Vishwas and Kalidas are the interested and related witnesses, therefore, their testimony should not be relied upon. We do not find any force in the submission made by learned counsel for the accused-respondents. There is no rule of law or prudence, which requires that evidence of a related person must be discarded. Moreover, it is normally seen that the related person witness would not like to spare the real culprits in place of some other person simply because of the murder of near and dear has been caused. It is also normally seen that the witnesses from the public are reluctant and avoid to appear and depose before the court. In the present case, on a careful scrutiny of all the three eyewitnesses, we find the same to be consistent and nothing has been elicited from their testimony, which could lead to the inference to make their testimony unreliable.

18. Learned counsel for the accused-respondents further argued that Jai Prakash (PW-5) has demolished the prosecution case. Kripa Sindhu Vishwas (PW-1) in the first information report has mentioned the name of Ranjeet Mandal (PW-3) as well as Jai Prakash (PW-5) who were accompanying him when he reached the spot and all three of them had challenged the accused, however, he totally improved his statement while appearing before the court. He deposed before the court that Jai Prakash had reached later on. It is true that in the first information report, Kripa Sindhu Vishwas stated that Jai Prakash had also reached the place of occurrence with him, however while deposing before the court, he categorically stated that Jai Prakash reached later. He has been fully supported on this account by Ranjeet Mandal (PW-3), who deposed that he had to go with Kripa Sindu Vishwas to Sitarganj together and they were at a distance of 100-200 paces when they heard an alarm raised by Kalidas. Kalidas also categorically stated that he had not seen anyone else except Kripa Sindhu Vishwas and Ranjeet Mandal at the place of occurrence. We may mention that sometimes due to shock on account of having witnessed ghastly murder of two of his brothers, the complainant may not have been in proper frame of mind, thus few facts got jumbled up when he got the F.I.R. recorded immediately after the occurrence.

19. The ocular testimony produced by the prosecution is fully supported by the medical evidence. As per the postmortem report (Ex. Ka-2) of Shukracharya there are six incised wounds and as per postmortem report (Ex. Ka-3) of Sudarshan, there are four incised wounds on their dead bodies. These injuries upon the person of the deceased persons could be caused by some sharp edged weapon. Dr. S.S. Kanyal stated that the death could have been caused on 1st July 1993 at 8:30 a.m. In the cross-examination, he stated that there could be variation of 4-6 hours in the duration of the death and therefore, it could be possible the death could occur at 4:00 a.m. However, this reply of the doctor is itself controverted by his further deposition that small intestine contained semi digested food. It could not be possible if death had occurred at 4:00 a.m. as meals taken by them on the previous night must have been fully digested and both of them must have also defalcated in the morning. It could be possible that both of them thereafter had eaten their breakfast in the morning before going to the fields i.e. around 5-6 a.m., thus, semi digested food was found at about 8:30 a.m. in the small intestine. The above circumstance belies the argument of learned counsel for the accused respondents that the death might have occurred at 4:00 a.m. in the morning.

20. Learned counsel for the accused-respondents submitted that the prosecution has not explained the injuries on the person of accused Ravindra Nath Sarkar. He referred to the statement of DW-1 Mahendra Singh Pharmacist posted in the Jail Hospital Haldwani, who stated that the injuries on the person of accused Ravindra Sarkar were recorded by Dr. S.M. Pant. He was medically examined on 3rd July 1993 when he was admitted in the jail. However, this witness could not say that the injuries on his person were 6 or 7 days old or 6 hours old as he was not an expert. As per the statement of Investigating Officer Raj Veer Singh (PW-6), accused Ravindra Sarkar was arrested on 1st July 1993 at 3:40 p.m. and G.D. No. 27 in this respect was recorded at 5:25 p.m. thus the medical examination of accused Ravindra Sarkar on 3rd July 1993 does not at all prove that those injuries were caused by the police at the time of his arrest on the asking of Kalidas. Thus, the findings of the trial court that the prosecution has not explained the injuries on the person of accused Ravindra Sarkar is misconceived as the accused had already been arrested on 1st July 1993, therefore, injuries on his person could be self-suffered or caused by a friendly hand.

21. With regard to the argument of learned counsel for the accused-respondents that there are lapses in the investigation, which creates dent in the present case, we may say that due to fault of the Investigating Officer perpetrators of such a ghastly offence cannot be allowed to go scot-free. All the accused were armed with deadly weapons and they attacked the victims who were totally unarmed and more so when the prosecution version is fully proved by the consistent, credible and cogent eyewitness account. Simply because the bloodstained earth was not sent for chemical examination, would not demolish the prosecution case. The occurrence admittedly took place in the field of Kalidas. There is not even a suggestion to any of the witness that the occurrence took place at some other place.

22. The above discussions clearly indicate that the prosecution has been able to establish the guilt of the accused persons. Now, it is to be seen as to whether in the circumstances and evidence discussed above, this Court can interfere with the judgment of the acquittal passed by the trial court in favour of the accused or not. The Apex Court in the case of Allarakha K. Mansur v. State of Gujrat reported in [2002 (1) RCR (Cri) 748] has held as under: -

"The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re- appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding."

23. In the case of Ramanand Yadav v. Prabhunath Jha reported in [2003(12) SCC 606], the Apex Court has held as under: -

"There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden tread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not."

24. Learned counsel for the accused-respondents referred to the judgment of Apex Court in the case of Chandrappa and others v. State of Karnataka reported in [2007 CRI.L.J. 2136] and State of Punjab v. Gurnam Kaur and others reported in [2009 (11) SCC 225] to supplement his argument that if two views are possible, the judgment of acquittal should be not interfered with. An appeal against an order of acquittal will not be interfered with, merely because a different view is possible. There is presumtion of innocence in favour of accused, which is further strengthened by the acquittal in the present case.

25. There is no dispute with the proposition submitted by the learned counsel for the accused-respondents. However, in view of the legal proposition as indicated above, while deciding the appeal against acquittal, the power of the appellate court is no less than the power exercised while hearing the appeals against conviction. The appellate court has full power to review and re-appreciate and reconsider the evidence if the findings of the court in the judgement under appeal, were perverse and based on misreading of evidence. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and the principle of acquittals are always good regardless of justice to the victim, but the society demands special emphasis in the context of escalating crime and escape. The evil of acquitting a guilty person light heartedly goes much beyond the simple fact that just one guilty person has gone unpunished but if unmerited acquittals become general, they tend to lead to a cynical disregard of the law. Too frequent acquittals of the guilty may lead to a public demand for harsher legal presumptions against indicted persons and more severe punishment for those who are found guilty. The judicial system has accountability towards the society and our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice realistic. Now by the latest judgments, the power of the appellate court is consistently recognized to review the entire evidence and come to its own conclusion while considering the appeals against acquittal.

26. After appraising the entire evidence, this Court is of the opinion that the judgment passed by the trial court is perverse and contrary to the evidence available on record. The trial court has given too much importance to the minor discrepancies in the statements of the eyewitnesses, which are otherwise reliable and trustworthy. The presence of the eyewitnesses at the place of occurrence has been proved to be quite natural and plausible. In view of the above discussion, the State appeal as well as criminal revision is allowed. Judgment and order dated 16.05.1998 passed by the District & Sessions Judge, Nainital is set aside. However, accused-respondents are convicted under Section 302 read with Section 34 of the I.P.C. and sentenced to undergo imprisonment for life. They shall be taken into custody forthwith to serve out the sentence awarded by this Court. The registry is directed to send back lower court record for compliance of the order passed by this Court.