STATE OF U.P.versusMUNI RAM & ORS.

                       [2010) 14 (ADDL.) S.C.R. 120


    A                          STATE OF U.P.
                                      V.
                             MUNI RAM & ORS.
                  (Criminal Appeal Nos. 909-91 O of 2002)
                            OCTOBER 26, 2010
    B
           [B. SUDERSHAN REDDY AND SURINDER SINGH
                          NIJJAR, JJ.]

           Penal Code, 1860- ss.147,323,3081304, 3081149 -
    C Cattle Trespas~ Act, 1871 - s. 24 - Prosecution under -
      Cross-version of incident given by the complainant and the
      victim parties - Conviction by trial court - Acquitted by High
      Court - On appeal, held: Order of acquittal affirmed -
      Supreme Court in its jurisdiction under Article 136, against
    D an order of acquittal, normally, would not interfere with finding
      of fact unless there has been miscarriage of justice - In the
      instant case High Court merely corrected the omissions
      committed by trial court in convicting the accused - Order of
•     High Court has not led to miscarriage of justice - High Court
    E has taken a possible view which could legitimately be taken
      on the inconsistencies in the prosecution evidence -
      Constitution of India 1950 - Article 136.

           The respondent-accused were prosecuted for
      having caused death of two persons and for causing
    F injuries to others. The prosecution case was that PW-2
      noticed that cattle of accused-respondent Nos. 3 and 4
      had trespassed his field, and he drove them away and
      was taking them to the cattle pound. At this accused-
      respondent Nos. 1-5, armed with 'lathis', attacked PW-2.
    G Hearing the hue and cry raised by PW-2, his sister-in-law
      'S', his son 'R' and his brother reached the spot. They
      were also assaulted by the accused. Other witnesses
      were also assaulted. All the five witnesses were medically

    H                                120
       STATE OF U.P. v. MUNI RAM & ORS.              121


examined. Two of the injured eye-witnesses succumbed        A
to the injuries.

    The defence gave a cross-version of the incident.
They alleged that the complainant party was the
aggressor. Both sides suffered injuries. They had also      B
got their injuries examined and when they went to lodge
the report to police station, they were arrested. They
produced four defence witnesses to support their
version. DW-1 produced the application sent to the police
containing defence version.
                                                            c
     Trial court convicted all the accused of offences
punishable u/ss. 147 and 323 IPC and u/s. 24 of Cattle
Trespass Act, 1871. Accused 1-4 were also convicted of
offence punishable u/s 304/34. Accused 'B' was acquitted
of the offence punishable u/s. 308/304 IPC and the other    D
accused were also acquitted u/ss. 308 and 149 IPC. The
accused appealed against their conviction whereas the
complainants challenged acquittal of respondent No. 5.
The High Court, acquitted all the accused, and dismissed
the criminal revision filed by the complainants. The        E
instant appeals were filed by the State.

    Dismissing the appeals, the Court

     HELD: 1. In an appeal by special leave under Article
136 of the Constitution of India against an order of        F
acquittal passed by the High Court, the Court would not
normally interfere with a finding of the fact based on
appreciation of evidence, unless the approach of the
High Court is clearly erroneous, perverse or improper and
there has been a grave miscarriage of justice. In the       G
instance case, the High Court has merely corrected the
omissions in the appreciation of evidence committed by
the trial court in convicting the respondents. The High
Court has taken a view which is plausible as well as
possible. [Paras 19 and 20] [131-G-H; 132-A-B]              H
    122   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A      2. The High Court upon a very careful appraisal of
  the entire evidence notices that this being a case of
  cross-versions, it was the duty of the court to ascertain
  which of the two versions were genuine and probable.
  Taking up the evidence of PW-1, the High Court
B concluded that the very presence of this witness is
  dubious. In coming to the aforesaid conclusion, the High
  Court has taken into consideration, the inconsistent
  versions of PW-2 and PW-3. It is also noticed that the
  name of PW-1 is not even mentioned in the FIR as a
c witness. In view of the very presence of PW-1 being
  shaky, the High Court concluded that in these
  circumstances, no authenticity can be attached to the
  version given by him in the FIR. The High Court further
  noticed that PW-1 had tried to cover up the lacunae in the
  FIR. Subsequently, he admitted in cross-examination that
0
  some portion of the FIR was narrated on the information
  given by PW-2 and PW-3. He was also unable to give any
  cogent description of the sequence of assault on injured.
  The High Court concluded that his presence on the spot,
  in the circumstances, was rendered doubtful. His
E evidence was that of an interested witness who had deep
  affinity with PW-2 and the son of village Pradhan, who
  was instrumental in the arrest of the respondents. [Paras
  14 and 15] (129-F-H; 130-A-D]

F       3. Upon a complete analysis of the entire evidence,
   the High Court concluded that the story about PW-2
   leaving the kerosene shop for answering the call of
   nature is a made up story and does not bear scrutiny. He
   even feigned to have defended himself with the vessel
G. (Iota) which got damaged during the process. The High
   Court took due notice of the fact that neither any blood-
   stained cloth nor the damaged vessel (Iota) were taken
   into custody by the investigating authorities. The High
   Court concluded that this witness had deliberately
H
        STATE OF U.P. v. MUNI RAM & ORS.               123


introduced PW1 in the case. The story about driving the       A
buffaloes to the cattle pound was disbelieved as the
animals were found going towards the house of PW-2.
The evidence given by PW-3 has also been discarded for
similar reasons. [Para 16] [130-E-H]
                                                            B
    4. The High Court noticed that the defence ,version
cannot be discarded. The injurie1s suffered by the
respondents were not superficial in nature. Three of the
respondents suffered one injury eaclil on their head. The
High Court further noticed that the three of the C
respondents had actually gone to the police station to
make a complaint about the assault on them by the
complainants. Therefore, it cannc)t be said that the
defence version is not probable. The High Court also
concluded that merely because1 the prosecution
witnesses had suffered more injuries than the D
respondents, would not be sufficiemt to hold that the
respondents were the aggressor party. The High Court
concluded that the prosecution version is so mixed up
with falsehood that any truth or semi-truth is not possible
to be distinguished therein. The High Court also noticed E
that the evidence of the prosecution witnesses was not
corroborated by any other independ,ent witness. [Para
17] [131-A-D]

     5. The conclusions reached by the High Court cannot      F
be said to be such which led to a mis1c:arriage of justice.
The High Court has taken a possible view which could
legitimately be taken on the basis of the inconsistencies
in the evidence of the prosecution. The High Court has
acted in accordance with the well-known principles that       G
if two views are possible on the evidence adduced, one
pointing to the guilt of the accused ,and the other to
innocence, the view which is favourabHe to the accused
is normally to be adopted. [Para 18] [1:31-E-F]
                                                              H
    124    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A       CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
    Nos. 909-910 of 2002.

         From the Judgment & Order dated 7.9.2001 of High Court
    of Judicature at Allahabad in Crl.A. No. 642 of 1988 and Crl.
8   Revision No. 611 of 1988.

        Ratnakar Dash, Manoj Kumar Dwivedi, Vijay Pratap Singh,
    G.V. Rao, Jatinder Kumar Bhatia for the Appellant.

          Abha R. Sharma, Susheel Tomer for the Respondents ..
c         The Judgment of the Court was delivered by

       SURINDER SINGH NIJJAR, J. 1. These appeals by the
  State of U.P. are directed against the judgment of the High
  Court of Judicature at Allahabad dated 7.9.2001 rendered in
D Criminal Appeal No. 642 of 1988 and Criminal Revision No.
  611 of 1988. By the aforesaid judgment, the High Court set
  aside the judgment of the trial court convicting Munni Ram,
  Maya Ram, Ram Ugrah and Ram Ajore (respondents herein)
  under Section 304/34, 147 and 323 IPC as well as under
E Section 24 of the Cattle Trespass Act, 1871. The criminal
  revision challenging the acquittal of Bhagirath under Section
  308/304 read with section 149 IPC was also dismissed.

       2. Briefly stated, the prosecution case was that on
F 14.6.1983, in the afternoon, Sita Ram (hereinafter referred to
  as PW-2) had noticed that the buffaloes of Ram Ugrah
  (hereinafter referred to as respondent No: 3) and Ram Ajore
  (hereinafter referred to as respondent No: 4) had trespassed
  into his field and were damaging the sugarcane crop. He,
  therefore, drove them out and was taking them to the cattle
G pound in the village. He had only gone a short distance when
  Munni Ram (hereinafter referred to as respondent No: 1) met
  him and enquired the reason why PW-2 was driving away his
  buffaloes. PW-2 told him that the buffaloes had damaged his

H
..            STATE OF U.P. v. MUNI RAM & ORS.                   125
                 [SURINDER SINGH NIJJAR, J.]
     sugarcane crop, therefore, he would deposit them in the cattle     A
     pound. On hearing this, respondent No: 1 went back to his
     house. When PW-2 reached near the house of llakedar, village
     Pradhan, respondent No: 1, Maya Ram (hereinafter referred to
     as respondent No: 2), respondent No: 3, respondent No: 4 and
     Bhagirath (hereinafter referred to as respondent No: 5)            B
     confronted him. They were armed with lathies. They took away
     the buffaloes from PW-2 and assaulted him with their respective
     weapons. The hue and cry raised by PW-2 attracted his sister-
     in-law, i.e. Singari Devi, his son Ramesh and his brother Ram
     Kewal to the spot. When they tried to intervene, they were also    c
     assaulted by the respondents. In fact,. other witnesses who
     came to the spot were also assaulted. In this short assault, PW-
     2, Singari Devi, Ramesh, Hari Ram and Ram Kewal sustained
     injuries on vital parts of their bodies.

           3. The condition of Singari Devi and Ramesh being            D
     critical, they were brought to the District Hospital, where they
     were admitted. All the five injured witnesses were medically
     examined by Dr. G.P. Agarwal (PW-10) from 10.00 PM on
     wards. Ramesh Chandra was first medically examined at the
     District Hospital, Bastion 14.6.83 but was later admitted to the   E
     Medical College, Lucknow as his condition became critical. He
     succumbed to his injuries on 16.6.1983 within three hours after
     reaching the hospital. The post mortem examination on his
     dead body was conducted on 16.6.1983 at 3.00 PM by Dr. V.P.
     Singh (PW-8).                                                      F

          4. Singari Devi also died on 17.6.1983 at about 4.1 O AM
     at District Hospital, Basti. The post mortem on her dead body
     was conducted on the same day by PW-10 at 4.00 PM.

          5. The FIR was registered on 15.6.1983 at 7.10 AM by          G
     Avadh Prasad (PW-1). The distance of the police station is 13
     Kms. from village Raunakala where the incident had taken
     place. Initially, the case was registered under Section 147, 308
     and 426 IPC. After the death of Singari Devi and Ramesh, it
     was converted to Section 147, 308, 426, 304 IPC and Section        H
    126   SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A   24 of the Cattle Trespass Act, 1871. On completion of the
    investigation, charge sheet was duly submitted and the case
    was transferred to the Court of Sessions and Trial Judge.

       6. In support of its case, the prosecution examined PW-1,
  who registered the FIR of the incident in the following morning;
8
  PW-2, an injured witness, Mohd. Shami (PW-3), Dr. V.M.
  Agarwal (PW-4), PW-8 and PW-10, who had examined all the
  injured witnesses and conducted autopsy on the deceased
  persons. PW-5, Tila Mohd. Khan is Head Moharrir. He had
C prepared the written report and also prepared the check report.
  According to him, he had completed the other formalities
  pertaining to the FIR. PW-6, Om Prakash and PW-7, Umesh
  Babu had filed their affidavits. They had only escorted the dead
  body to the mortuary. PW-9 Vidya Vinod Pathak is Sub-
  Inspector Police Station, Kotwali, Basti. He prepared the
D inquest memo. He also arrested respondent No: 1, 3 and 5 and
  took them in police custody. PW-11 Chhangur Singh had
  prepared the panchayatnama of the dead body Ramesh
  Chandra. Shiv Saran Singh, PW-12 is the investigating officer.
  This in a nutshell is the entire prosecution evidence.
E
         7. The defence of the respondents is a cross version of
    the incident. According to them, the incident occurred when PW-
    2, Hari Ram, Ram Kewal, Ramesh and Gulam Nabi were trying
    to remove a branch of the Jamun tree, which had been cut from
F · the tree and fallen in the field of the respondents. The incident
    occurred according to the respondents at about noon time.
    Respondent No: 2 had gone to the field empty handed and
    requested the aforesaid persons not to remove the fallen branch
    of the Jamun tree. On being so requested, they started beating
G him. His alarm attracted respondent No: 1 and respondent No:
    3, who came to the spot armed with lathies. PW-2, Hari Ram,
    Ram Kewal, Ramesh and Gulam Nabi also attacked
    respondent No: 1 and respondent No. 3. In the mean time,
    family members of both the sides gathered at the spot and
    started hurling brickbats on each other. Consequently, both
H
             STATE OF U.P. v. MUNI RAM & ORS.                     127
                [SURINDER SINGH NIJJAR, J.]
sides suffered injuries. Respondents also got their injuries             A
medically examined at the District Hospital.

     8. After medical examination, they had gone to lodge the
report at the Police Station, Kotwali, Basti. Gulam Nabi, who
is the son of the Village Pradhan was already present there. It          8
was at then that they were arrested. In order to prove their
version, they have also produced four defence witnesses. Ram
Dulare Tripathi, DW-1 produced the application sent by the
accused party to the Superintendent of Police containing the
defence version.
                                                                         c
     9. Upon examination of the entire evidence led by the
parties, trial court convicted and sentenced the respondents as
follows:-

      (i)      Munni Ram, Maya Ram, Ram Ugrah, Ram Ajore                 D
               and Bhagirathi under Section 147 and 323. They
               were sentenced to R.I. for 1 year under Section 147
               and 1 year R.I. under Section 323 IPC.

      (ii)     Respondents Munni Ram, Maya Ram, Ram Ugrah
               and Ram Ajore were also convicted under Section           E
               304 read with Section 34 IPC and sentenced to R.I.
               for 10 years and a fine of Rs. 5,000/- each. In default
               of payment of fine, they were sentenced to further
               2 years R.I.
                                                                         F
      (iii)    Bhagirathi was, however, acquitted of the offences
               under Section 308/304 IPC read with Section 149.

      (iv)     All the other accused were also acquitted of the
               offences under Section 308 and 149.
                                                                         G
      (v)      All the five accused were also convicted under
               Section 24 of the Cattle Trespass Act and
               sentenced to R.I. for 1 month only.

    10. Against the aforesaid conviction and acquittal, the              H
    128    SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A accused respondents herein approached the High Court by
  way of Criminal Appeal No. 642of1988 and the complainants
  challenged the acquittal of respondent no: 5 by way of a
  Criminal Revision No. 611 of 1988. The High Court by its
  judgment dated 7 .9.2001 allowed the aforesaid Criminal
B Appeal and acquitted all the respondents. The Criminal
  Revision No. 611 of 1988 filed by the complainants was
  dismissed maintaining the acquittal of the respondent no: 5.

       11. In the present appeal, the State of U.P. has challenged
C the common judgment on various grounds.

         12. We have heard the learned counsel for the parties. Mr.
    Ratnakar Dash, appearing for the State of U.P. submitted that
    the High Court has erroneously disbelieved the clear and
    consistent evidence of the eye-witnesses who were also injured
D   witnesses. PW-2, according to him had clearly stated that on
    14.6.1983 at about 3.30-4.00 PM, he was distributing kerosene
    from the P.D.S. shop which had been allotted to him. He went
    to answer the call of nature and asked PW3 to distribute the
    kerosene in his absence. He was carrying some water in a Iota
E   with him for cleaning himself after going to the toilet. At that time,
    he saw the buffaloes of respondent no: 3 and 4 were damaging
    his sugarcane crop. He had driven out the cattle and was taking
    them to the cattle pound in the village. Particular reliance was
    placed on the evidence by PW-2. According to the learned
F   counsel, this witness had given a detailed and consistent
    version as to how the buffaloes of the accused persons namely
    respondent no: 3 and 4 had damaged his sugarcane crop. He
    had also narrated the sequence about taking the buffaloes
    towards the cattle pound in the village. fhereafter, he had
G   narrated how the five accused armed with lathies had assaulted
    him. They had abused him and also told him that they will finish
    him off. He had also further narrated the sequence of events
    as to how the other members of the family were also attacked.
    The witnesses have completely supported the prosecution
    version with regard to the treatment of injury and the
H
         STATE OF U.P. v. MUNI RAM & ORS.                    129
            [SURINDER SINGH NIJJAR, J.]
subsequent death of Ramesh and Singari Devi. PW-3 had also           A
given a consistent account of the entire incident which led to
the death of two persons. These witnesses had also denied the
cross-version suggested by the defence, the respondents
herein. According to the learned counsel, the injuries suffered
by the defence were superficial and self inflicted. Learned          B
counsel further submitted that the High Court wrongly
disbelieved the entire prosecution version on the ground that
the injuries suffered by the respondents had not been explained
by the prosecution.

     13. On the other hand, learned counsel for the respondents      C
submitted that the High Court has rightly rejected the
prosecution version for a number of cogent reasons. The
injuries suffered by the respondents cannot be said to be
superficial. The FIR has been clearly ante-timed and ante-
dated. The genesis of the incident has been suppressed and           D
a wholly false version has been projected in the FIR. According
to the learned counsel, the complainants were in fact the
aggressors. The incident had taken place in the field belonging
to the respondents when they had objected to the complaints
removing the illegally cut branch of the Jamun tree.                 E

     14. We have carefully considered the submissions made
by the learned counsel for the parties and gone through the
judgment of the High Court. The High Court upon a very careful
appraisal of the entire evidence notices that this being a case      F
of cross-versions, it was the duty of the Court to ascertain which
of the two versions were genuine and probable. Taking up the
evidence of PW-1, the High Court concludes that the very
presence of this witness is dubious. In coming to the aforesaid
conclusion, the Hfgh Court has taken into consideration, the         G
inconsistent versions of PW-2 and PW-3. It is also noticed that
the name of PW-1 is not even mentioned in the FIR as a witness.
The High Court also notices that the story about the kerosene
oil being distributed by PW-2 is also concocted. According to
the High Court, the prosecution had failed to produce any record
                                                                     H
   130    SUPREME COURT REPORTS (2010) 14 (ADDL.) S.C.R.


A of the distribution of kerosene either by PW-2 or any other
  individual.

        15. In view of the very presence of PW-1 being shaky, the
  High Court concluded that in these circumstances, no
8 authenticity  can be attached to the version given by him in the
  FIR. The High Court further notices that PW-1 had tied to cover
  up the lacunae in the FIR. Subsequently, he admitted in cross-
  examination that some portion of the FIR was narrated on the
  information given by PW-2 and PW-3. He was also unable to
C give any cogent description of the sequence of assault on
  injured. The High Court concluded that his presence on the spot
  in the circumstances was rendered doubtful. His evidence was
  that of an interested witness who had deep affinity with PW-2
  and the son of village Pradhan, who was instrumental in the
  arrest of the respondents. His evidence was, therefore,
D discarded by the High Court.

       16. Taking up the evidence of PW-2, the High Court
  disbelieved the story that he had gone to answer the call of
  nature. The High Court also disbelieved that PW-1 was present
E at the spot when PW2 entrusted the job of distribution of
  kerosene oil to PW-3. Upon a complete analysis of the entire
  evidence, the High Court concluded that the story about PW-2
  leaving the kerosene shop for answering the call of nature is a
  made up story and does not bear scrutiny. He even feigned to
F have defended himself with the vessel (Iota) which had got
  damaged during the process. The High Court took due notice
  of the fact that neither any blood-stained cloth nor the damaged
  vessel (Iota) were taken into custody by the investigating
  authorities. The High Court concluded that this witness had
G deliberately introduced Avadh Prasad (PW1) in the case. He
  did not distribute any oil on the day of the incident. The story
  about driving the buffaloes to the cattle pound was disbelieved
  as the animals were found going towards the house of the
  witness PW-2. The evidence given by PW-3 has also been
  discarded for similar reasons.
H
         STATE OF U.P. v. MUNI RAM & ORS.                        131
            [SURINDER SINGH NIJJAR, J.]
     17. The High Court, thereafter, notices that the defence           A
version cannot be disca-rded. The injuries suffered by the
respondents were not superficial in nature. Three of the
respondents were suffered one injury each on their head. The
High Court further notices that the three respondents had
actually gone to the police station to make a complaint about           B
the assault on them by the complainants. Therefore, it cannot
be said that the defence version is not probable. The High
Court also concluded that merely because the prosecution
witnesses had suffered more injuries than the respondents,
would not be sufficient to hold that the respondents were the           c
aggressor party. In other words, the defence version cannot be
discarded only on the basis of lesser number of injuries having
been suffered by them. The High Court concluded that the
prosecution version is so mixed up with falsehood that any truth
or semi-truth is not possible to be distinguished therein. The
High Court also notices that in this case, the evidence of the
                                                                        0
prosecution witnesses is not corroborated by any other
independent witnesses.

     18. In our opinion, the conclusions reached by the High
Court cannot be said to be such which has led to a miscarriage E
of justice. The High Court has taken a possible view which
could legitimately be taken on the basis of the inconsistencies
in the evidence of the prosecution. The High Court has acted
in accordance with the well-known principles that if two views ·
are possible on the evidence adduced, one pointing to the guilt F
of the accused and the other to innocence, the view which is
favourable to the accused is normally to be adopted.

      19. It is well settled that in an appeal by special leave under
Article 136 of the Constitution, against an order of acquittal          G
passed by the High Court, this court would not normally interfere
with a finding of the fact based on appreciation of evidence,
unless the approach of the High Court is clearly erroneous,
perverse or improper and there has been a grave miscarriage
of justice.
                                                                        H
    132      SUPREME COURT REPORTS [2010] 14 (ADDL.) S.C.R.


A         20. We are of the considered opinion that in this case, the
  High Court has merely corrected the omissions in the
  appreciation of evidence committed by the trial court in
  convicting the respondents. The High Court has taken a view
  which is plausible as well as possible. In light of the aforesaid
B findings, we find no merit in these appeals and the same are
  accordingly dismissed.

    K.K.T.                                      Appeals dismissed.