Holding

Appellate courts may re‑appreciate the evidence on which an acquittal rests and may overturn the acquittal when the trial court’s findings are based on conjecture and the prosecution case is clear, thus upholding the conviction of Anil Kumar.

Summary

Three men were tried for murder under IPC sections 302 and 34. The trial court acquitted all of them, relying on the claim of self‑defence and the prosecution’s failure to explain minor injuries on the accused. The State appealed; during the pendency two accused died and the High Court re‑appreciated the evidence, convicting Anil Kumar. The Supreme Court held that an appellate court may review the evidence on which an acquittal is based and may set aside such acquittal when the trial court’s findings are based on surmise and the prosecution case is clear. It also ruled that non‑explanation of superficial injuries does not, by itself, defeat the prosecution. Consequently, the High Court’s conviction was upheld and the appeal dismissed.

Issues considered

Whether an appellate court can re‑appreciate evidence underlying an acquittal and set it aside.
Whether the prosecution’s failure to explain injuries on the accused mandates rejection of its case.
Whether the trial court’s reliance on a private‑defence plea and surmised conclusions was justified.

Legislation cited

Subjects

appellate reviewacquittal reversalSection 313injury explanationprivate defencemurderIPC 302Section 34evidence appraisal

Judgment

ANIL KUMAR A
v.
STATE OF U.P.

SEPTEMBER 16, 2004

[ARIJIT PASAYAT AND C.K. THAKKER, JJ.] B

Penal Code, 1860-Section 302 and Section 302 r/w Seetion 34-
Murder-Trial Court acquitted all the three accused disbelieving the
Prosecution version-High Court reappreciated the evidence and convicted
only the appellant accused as the other two accused died-On appeal C
decision of High Court upheld-Criminal Procedure Code, 1973-Section
313.

Criminal Trial:

Credibility of prosecution case-Affected only when medical evidence D
totally improbabilises oral evidence.

Evidence Act, 1872-Injuries sustained by accused in the same
occurrence in which offence has been committed-Prosecution's failure to
prove-Held, will not affect the prosecution case. ·E

Accused-appellant along with two others faced trial for alleged
commission of offence under Section 302 and Section 302 read with
Section 34. All three accused were acquitted by Trial Court. State
preferred appeal before High Court. During pendency of appeal two
accused died and High Court convicted appellant accused for alleged F
offence after reviewing and re-appreciating· the evidence. Hence the
present appeal.

Dismissing the appeal, the Court

HELD, 1. There is no embargo on the appellate Court reviewing G
the evidence upon which 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 the acquittal. 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 H
449
450 SUPREME COURT REPORTS (2004] SUPP. 4 S.C.R.

A is favourable to the accused should be adopte(I. In a case of acquittal
where admissible evidence is ignored, a duty is cast upon the appellate
Court to re-appreciate the evidence, for the purpose of ascertaining as
to whether any of the accused really committed any offence or not.
(454-H; 455-A, B, CJ
B Bhagwan Singh and Ors. v. State of Madhya Pradesh, (2002) 2
Supreme 567; Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra,
AIR (1973) SC 2622; Ramesh Babula! Doshi v. State of Gujarat, (1996) 4
Supreme 167; Jaswant Singh v. State of Haryana, (2000) 3 Supreme 320;
Raj Kishore Jha v. State of Bihar and Ors., (2003) 7 Supreme 152; State
c of Punjab v. Karnail Singh, (2003) 5 Supreme 508; State of Punjab v.
Pohla Singh and Anr., (2003) 7 Supreme 17 and Suchand Pal v. Phani Pal
and Anr., JT (2003) 9 SC 17, referred to.

2.1. There is no such law that in each and every case where
prosecution fails to explain the injuries found on some of the accused,
D the prosecution case should automatically be rejected, without any further
probe. Non-explanation of injuries by the prosecution .will not affect
prosecution case where injuries sustained by the accused are minor and
superficial or where the evidence is so clear and cogent, so independent
and disinterested, so probable, consistent and trustworthy, that it
.E outweighs the effect of omission on the part of prosecution to explain the
injuries. [455-F; 457-B]

Mohar Rai and Bharath Rai ':'· The State ofBihar, [1968] 3 SCR 525;
Lakshmi Singh and Ors. v. State of Bihar, [1976) 4 SCC 394; Vijayee Singh
and Ors. v. State of U.P., AIR (1990) SC 1459 and RQm/agan Singh v.
F State of Bihar, AIR (1972) SC 2593, referred to.

2.2. It is not an invariable rule that prosecution has to explain the
injuries sustained by the accused in the same occurrence. When
prosecution comes with a definite case that the offence has been
committed by the accused and proves its case beyond any reasonable
G doubt, it becomes hardly necessary for the prosecution to again explain
how and under what circumstances injuries have been inflicted on.the
person of accused. It is more so when injuries .are simple.or superficial
in nature. In the case at hand, trifle and superficial injuries on accused
are of little assistance to them to throw doubt on the veracity of
H prosecution case. [457-D, E, F)
ANIL KUMAR v.STATE [PASAYAT, J.] 451

Hare Krishna Singh and Ors. v. State of Bihar, AIR (1988) SC 863 A
and Surendra Paswan v. State ofJharkhand, (2003) 8 Supreme 476, referred
to.

3. The Trial Court's conclusions were patently based on surmises
and conjectures and were contrary to the evidence. There was no basis
for the Trial Court to conclude that appellant-accused acted in right of B
private defence. The material on record on the contrary established that
appellant-accused fired the shot resulting in the death of one of deceased
persons. The presumption that FIR was ante-dated was on an erroneous
reading of evidence. Minor variance in statement of illiterate rustic lady
should not be given primacy when the eviaence itself was recorded long C
time after the incident. It is trite law that when oral evidence is credible
and cogent, medical evidence is contrary, is inconsequential. Only when
the medical evidence totally improbabilises the oral evidence, adverse
inference can be drawn. This is not the case of that nature. There is no
infirmity in the judgment of the High Court to warrant interference.
[457-G, H; 458-A, B, CJ D
CRIMINAL APPELLATE JURISDICTION Criminal Appeal
No. 616 of 1999.

From the Judgment and Order dated 26.2.99 of the Allahabad High
Court in Government Appeal No. 1580 of 1986. E
Ravindra Shrivastava, Kunal Venn a and Manoj Prasad for the App. Hant.

Pramod Swamp, Ms. Prema Swamp, Praveen Swarup, Imtiaz Ahmad,
Mrs. Naghma Imtiaz and V.N. Raghupathy for the Respondent.
F
The Judgment of the Court was delivered by

ARIJIT PASAYAT, J.: Acquittal of the appellant (hereinafter referred
to as the 'accused') by the trial court was reversed by the High Court hy the
impugned judgment. Three persons, namely, Akshay Kumar, Anil Kumar
and Shiv Kumar faced trial for alleged commission of offence punishable G
under Sections 302 and 302 read with Section 34 oflndian Penal Code, 1860
(in short the 'IPC').

Accusations which led to the trial of the accused persons are essentially
as follows:
H
452 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A Goverdhan Lal son of Guljari Lal lodged first information report
(hereinafter referred to as FIR) on 27.2.1980 at about 4.45 p.m. with the
allegation that about 3.00 p.m. on the same date accused AkshayKumar, Anil
Kumar and Shiv Kumar came towards their house. Accused Shiv Kumar was
driving a tractor while Akshay Kumar and Anil Kumar were sitting on the
trolley of the tractor with double barrel gun in the hands of each of them.
B
They wanted to take the tractor through the land of the complainant. In front
of the house and the land Of the complainant and his brothers, there is some
open land. Gram Pradhan Akshay Kumar wanted to make path (Rasta) over
the said land. He filed a case in the Munsifs court about 21-22 years ago
for the said purpose. He won the case. The accused persons· bore enmity
c for that reason. Before three years of the present occurrence accused Anil
Kumar and Shiv Kumar went to the plot o(the complainant and wanted to
assault by fire. The complainant had lodged a report in the police station
to this effect. On 27 .2.1980 at about 3 .00 p.m. Kunji Lal brother of the
complainant and Kali Charan, nephew of the complainant (each of them
D described as "deceased" by name) were keeping potatoes in bags in the west
of their house. They asked the accused persons that since there was no path
in front of house of the complainant where they are taking the tr~ctor. They
stopped the tractor in front of the house of deceased Kunji Lal. Accused Shiv
Kumar exhorted to kill them. On this Akshay Kumar and Anil Kumar got
down from the tractor ahd started to abuse. Accused Anil Kumar fired the
E gun and the bullet hit Kunji Lal. Akshay Kumar fired the gun and the bullet
hit Kali Charan and both of them died on the spot. The accused persons sat
on their tractor and went towards their house proclaiming that if anybody
tried to raise his head, he shall also be killed. The occurrence was said to
have been seen by Kalloo son of Sukha, Ram Beti wife of Gokaran and
F Rakesh Kumar son of Siya Ram.

Rakesh Kumar has since died. Govardhan Lal, the complainant was
examined as PW-1, Kallo as PW-2 and Ram Beti as PW-3.

In order to further its version the prosecution examined 6 witnesses. The
G accused persons pleaded innocence. The appellant took the plea that his
driver Navin Chandra was driving the tractor to plough the field of one
Virendra son of Onkar. Near the house of complainant, Kali Charan, Munshi
Lal, Hari Shankar, Siyaram etc. emerged with lathies and country made
piStols, stopped the tractor and threatened the driver and he cried out for help.
H Appellant Anil Kumar came along with licenced gun of his father to save
ANIL KUMAR v. STATE [PASA Y AT, J.] 453

them. When he reached near the tractor, Kali Charan and Kunji Lal fired at A
him as well as Navin Chandra. Both of them suffered fire-arm injuries. In
self defence, he fired twice. He was medically examined and injuries were
x-rayed.

Learned Sessions Judge came to the conclusion that it was amply clear B
that the occurrence took place at the time, place and date as claimed by the
prosecution. But accused Anil Kumar and Shiv Kumar were incapable of
committing any crime. Their presence at the spot appeared to be out of
question in view of their age. Injuries on the accused were not explained and,
therefore, the prosecution had not come to Court with clean hands. The first
information report was ante-timed and there was no immediate motive for · · C
the crime. Accused Anil Kumar and Shiv Kumar did not play any active
role in the commission of the offence. Though accused Anil Kumar had
played active role it was in exercise of right of self defence. Accordingly,
all the 3 persons were acquitted. The State of Uttar Pradesh filed the appeal
before the Allahabad High Court. During the pendency of the appeal before D
the High Court Akshay Kumar and Shiv Kumar died and the appeal was taken
to have been abated so far as they are concerned and was continued against
the accused-appellant Anil Kumar.

The High Court found that the approach of the trial court was not
correct. In view of the clear and cogent evidence of the eye-witnesses, the E
trial court should not have come to a conclusion based on sunnises and
presumptions about the inability of Shiv Kumar and Askhay Kun.ar to
commit the crime. The injuries on the accused and Navin Chandra were of
very superficial nature. Interestingly, though the incident took place on
27 .2.1980, medical records so far as accused-appellant Anil Kumar and F
Navin Chandra are concerned came into existence on 29.2.1980. The stand
that when Navin Chandra was attacked Anil Kumar came and fired in
defence, was too fragile to warrant acceptance as was wrongly done by the
trial court. High Court noticed that neither Navin Chandra nor Virendra, who
it was claimed by the defence were present all through, had not been
examined as defence witnesses. The High Court also noticed that without G
any basis the trial court held that at least four gunshots were made for causing
injuries on the two deceased persons. The plea regarding private defence was
not proved and no material was placed to substantiate the plea. Without any
material the trial court came to hold that the FIR was ante-timed. That being
so, the trial court's conclusions were erroneous. Accordingly, State's appeal H
454· SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A was allowed and accused-appellant Anil Kumar was found guilty of offence
punishable under Section 302, as well as Section 302 read with Section 34
of IPC.

In support or the appeal learned counsel for the accused-appellant
submitted that the High Court ha.s lightly interfered with the judgment of
B
acquittal. The view taken by the trial court was a possible view. Even though
the occurrence was admitted by the accused, the same was not unqualified.
High Court proceeded on the basis as if the accused accepted the prosecution·
version. The High Court should not have acted on part of the statement
recorded unde,r Section 313 of the Code of Criminal Procedure, 1973 (in short
c the 'Code') and ignored rest of the same. It should haye scanned the entire
evidence to arrive at the conclusion. The High Court may have recorded
different conclusion but that does not render the judgment of the trial court
illegal when it was reasonable and possible view. The Investigating Officer
clearly noted that the accused-appellant Anil Kumar and Virendra were
D injured, but no further inquiry was conducted. There .is no material for the
·genesis of the dispute. There was no immediat~ motive as was held by the
trial court. The medical evidence is also at variance with the oral evidence.
The FIR was rightly held to be ante-timed when the evidence of Ram Beti
(PW-3) is taken note o~. Admittedly, the litigation took place two decades
back. If there was any motive the victim would have been Girdhari Lal and
E not the two deceased persons.

In response, learned counsel for· the State submitted that the first
information rep<;>rt was lodged immediately. The evidence of the eye-
witnesses has not been shaken during the cross-examination at len·gth. The
F trial court had only held that the possibility of role played by Shiv Kumar
was not sufficient to implicate him and whatever discussions were made
related to Shiv Kumar. After having come to the conclusion that Anil Kumar
might have been responsible for the mischief, it was illogical to give any
benefit of doubt on the ground that he acted in self defence. Th~s is a
conclusion without any foundation. The High Court has rightly discarded the
G plea of the defence about non-explanation of injuries which were clearly
superfluous in nature. PWs were unarmed at the time of assaults. Accordingly
it was submitted that the High Court was justified in reversing the acquittal.

There is no embargo on the appellate Court reviewing the evidence
upon which an order of acquittal is based. Generally, the order of acquittal
H
ANIL KUMAR v.STATE [PASAYAT, J.] 455

shall not be interfered with because the presumption of innocence of the A
accused is further strengthened by acquittal. The go1den thread 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 accus.ed and the other to his innocence, the view which is
favourable to the accused should be adopted. The paramount consideration
B
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 adJUissible evidence
is ignored, a duty is cas.t upon the appellate Court to re-appreciate the
evidence where the accused has been acquitted, for the purpose of ascertaining
as to whether any of the accused really committed any offence or not. [See c
· Bhagwan Singh and Ors. v. State of Madhya Pradesh, (2002) 2 Supreme
567]. The principle to be followed by appellate Court considering the appeal
against the judgment of acquittal is to interfere only when there are
compelling and substantial reasons for doing so. If the impugned judgment
is clearly unreasonable and relevant and convincing materials have been
unjustifiably eliminated in the process, it is a compelling reason for interference.
D
These aspects were highlighted by this Court in Shivaji Sahabrao Bobade
and Anr. v. State of Maharashtra, AIR (1973) SC 2622, Ramesh Babula!
Doshi v. State of Gujarat, (1996) 4 Supreme 167, Jaswant Singh v. State of
Haryana, (2000) 3 Supreme 320, Raj Kishore Jha v. State ofBihar and Ors.,
(2003) 7 Supreme 152, State of Punjab v. Karnail Singh, (2003) 5 Supreme E
508 and State of Punjab v. Pohla Singh and Anr., (2003) 7 Supreme 17 and
Suchand Pal v. Phani Pal and Anr., JT (2003) 9 SC 17.

We shall first deal with the question regarding non-explanation of
injurie!> on the accused. Issue is if there is no such explanation what
would be its effect? We are not prepared to agree with the learned F
counsel for the defence that in each and every case where prosecution
fails to explain the injuries found on some of the accused, the prosecution
case should automatically be rejected, without any further probe. In Mohar
Rai and Bharath Rai v. The State of Bihar, [1968] 3 SCR 525, it was
observed:
G
" .. .In our judgment, the failure of the prosecution to offer any
explanation in that regard shows that evidence of the prosecution
witnesses relating to the incident is not true or at any rate not wholly
true. Further those injuries probabilise the plea taken by the
appellants." H
456 SUPREME COURT REPORTS [2004] SUPP. 4 S.C.R.

A In another important case Lakshmi Singh and Ors. v. State·of Bihar, [1976]
4 SCC 394, after referring to the ratio laid down in Mohar Rai's case (supra),
this Court observed:

"Where the prosecution fails to explain the injuries on the
accused, two results follow:
B
(1) that the evidence of the prosecution witnesses is untrue;
and (2) that the injuries probabilise the plea taken by the appellants."

It was further observed that:
c "In a murder case, the non-explanation of the injuries sustained by
the accused at about the time of the occurrence or in the course of
altercation is a very important circumstance from which the Court
can draw the following inferences:

D ( 1) that the prosecution has suppressed the genesis and the
origin of the occurrence and has thus not presented the true version;

(2) that the witnesses who have denied the presence of the
injuries on the person of the accused are lying on a most material
point and, therefore, their evidence is unreliable;
E
,
(3) that in case there is a defence version which explains the
injuries on the person of the accused assumes much greater importance
where the evidence consists of interested or inimical witnesses or
where the defence gives a version which competes in probability
F with that of the prosecution one."

In Mohar Rai 's case (supra) it is made clear that failure of the prosecution
to offer any explanation regarding the injuries found on the accused may
show that the evidence related to the incident is not true or at any rate not
wholly true. Likewise in Lakshmi Singh 's case (supra) it is observed that any
G non-explanation· of the injuries on the accused by the prosecution
may affect the prosecution case. But such a non-explanation may assume
greater importance where the defence gives a version which competes
in probability with that of the prosecution. But where the evidence is
clear, cogent and creditworthy and where the Court can distinguish the truth .
H from falsehood the mere fact that the injuries are not explained by the
ANIL KUMAR v.STATE [PASAYAT, J.] 457

prosecution cannot by itself be a sole basis to reject sucb evidence, and A
consequently the whole case. Much depends on the facts and circumstances
of each case. These aspects were highlighted by this Court in Vijayee Singh
and Ors. v. State of U.P., AIR (1990) SC 1459.

Non-explanation of injuries by the prosecution will not affect prosecution B
case where injuries sustained by the accused are minor and superficial or
where the evidence is so clear and cogent, so independent and disinterested,
so probable, consistent and creditworthy, that it outweighs the effect of the
omission on the part of prosecution to explain the injuries. As observed by
this Court in Ramlagan Singh v. State of Bihar, AIR (1972) SC 2593
prosecution is not called upon in all cases to explain the injuries received by C
the accused persons. It is for the defence to put questions to the prosecution
witnesses regarding the injuries of the accused persons. When that is not
done, there is no occasion for the prosecution witnesses to explain any injury
on the person of an accused. In Hare Krishna Singh and Ors. v. State of
Bihar, AIR (1988) SC 863, it was observed that the obligation of the D
prosecution to explain the injuries sustained by the accused in the same
occurrence may not arise in each and every case. In other words, it is not
an invariable rule that the prosecution has to explain the injuries sustained
by the accused in the same occurrence. If the witnesses examined on behalf
of the prosecution are believed by the Court in proof of guilt of the accused
beyond reasonable doubt, question of obligation of prosecution to explain E
injuries sustained by the accused will not arise. When the prosecution comes
with a definite case that the offence has been committed by the accused and
proves its case beyond any reasonable doubt, it becomes hardly necessary
for the prosecution to again explain how and under what circumstances
injuries have been inflicted on the person of the accused. It is more so when F
the injuries are simple or superficial in nature. In the case at hand, trifle and
superficial injuries on accused are of little assistance to them to throw doubt
on veracity of prosecution case. [See Surendra Paswan v. State ofJharkhand,
(2003) 8 Supreme 476].

The trial court's conclusions were patently based on surmises and G
conjectures and were contrary to the evidence. There was no basis for the
trial court to conclude that accused-appellant Anil Kumar acted in exercise
of right of private defence. Merely because such a statement was made in
_.. the statement recorded under Section 313 of the Code that was not sufficient.
The High Court did not endorse the view as this plea was not established and H
458 SUPREME COURT REPORTS [2004) SUPP. 4 S.C.R.

A the material on record was on the contrary established that Anil Kumar had
fired the shot r~sulting in the death of one of deceased persons. The
presumption that FIR was ante-timed was on an erroneous reading of the
evidence of PW-3. The trial court completely lost sight of the fact that PW-
3 was an illiterate rustic lady and minor variance in her statement should not
B be given primacy when the evidence itself was recorded long time after and
it should not have been made basis for coming to a conclusion that the FIR
was ante-timed. It is trite law that when oral evidence is credible and cogent,
medical evidence is contrary, is inconsequential. Only when the medical
evidence totally improbabilises the oral evidence, adverse inference can be
drawn. This is not a case of that nature. ·
c
Above being the position, we find no infirmity in the judgment of the
High Court to warrant interference. The appeal is dismissed.

K.G. Appeal dismissed.