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Wednesday, August 17, 2016

The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.= whether the views of the trial court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.= We are also satisfied in recording, that the trial Court had overlooked vital evidence recorded on behalf of the prosecution, specially during the cross-examination of the prosecution witnesses, whereupon, the position of there being any second way of viewing the facts, was absolutely out of question. We are of the considered view, that the statements of the two prosecution witnesses, namely, Mohan Ram – PW-1 and Mohan Lal – PW-15, along with the testimony of the other witnesses, would clearly and unequivocally lead to the inference, that the accused-appellant – Brij Lal was guilty of having committed the offence under Section 302 of the IPC, insofar as his having caused the murders of Om Prakash and Sultan Bhat are concerned. There is absolutely no question of extending the benefit of any doubt to the accused-appellant – Brij Lal, in the present case.

                                                                  Reportable
                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 991 OF 2010
Brij Lal                                                 … Appellant
                                   versus
State of Rajasthan                                       … Respondent

                               J U D G M E N T
Jagdish Singh Khehar, J.
1.     According  to  the  allegations  levelled  in  the   complaint,   the
appellant–Brij Lal  and  Mohan  Lal  -  PW-15  were  both  employed  in  the
Irrigation Department of the State Government.  They were both  holding  the
posts of Gauge Reader.  They also resided in government quarters at Suleman-
ki-Head, close to one another.  The appellant–Brij  Lal  allegedly  used  to
hurl abuses at Mohan Lal -  PW-15  under  the  influence  of  liquor.   Some
others, including Kashi Ram, co-accused, used to side with the  appellant  –
Brij Lal, in his misbehaviour with Mohan Lal – PW-15.  In  order  to  settle
the dispute amicably Mohan Lal – PW-15 called a “panchayat” (council).   The
endeavour of Mohan Lal – PW-15, through the panchayat, proved  unsuccessful.
Eventually, he addressed a communication dated 18.8.1983, to  the  Assistant
Engineer of the Irrigation Department, highlighting  the  inimical  attitude
of the appellant–Brij Lal.  Since the said complaint also did  not  lead  to
any fruitful result, Mohan Lal – PW-15 quit  his  government  accommodation,
and took up rental accommodation in the house of Mohan Ram – PW-1.
2.    The incident which has given rise to the present appeal,  occurred  on
30.9.1983 at around 9 p.m., at the house of Mohan  Ram  –  PW-1,  i.e.,  the
premises to which Mohan Lal – PW-15 had shifted, to keep himself  away  from
the appellant–Brij Lal.  At the time of occurrence, Mohan Lal  –  PW-15  was
present in the said premises, along with his  wife  and  children.   It  was
alleged, that the appellant–Brij Lal and the co-accused – Kashi  Ram  hurled
abuses at Mohan Ram - PW-1, who was sitting outside, in front of his  house.
 The appellant and the co-accused asked Mohan Ram – PW-1, to call out  Mohan
Lal – PW-15, as they wanted to kill him.  It was the assertion of Mohan  Ram
– PW-1, who eventually lodged the  complaint,  that  he  had  requested  the
appellant–Brij Lal and the  co-accused  –  Kashi  Ram,  not  to  create  any
trouble at his house.  He asked them to fulfill  their  intentions  at  some
other place.  Unmindful of the advice tendered by  Mohan  Ram  –  PW-1,  the
appellant and the co-accused started hurling abuses at  Mohan  Ram  –  PW-1.
At that juncture, Mohan Ram – PW-1 realized, that the accused  and  the  co-
accused were in possession of pistols.  Mohan Lal – PW-15, having heard  the
appellant and the co-accused hurling abuses, and also, threatening  to  kill
him, scaled the boundary wall of the premises, and hid in the flour mill  of
Milkha Singh, located in close vicinity of the house of Mohan Ram–PW-1.
3.    Hearing the altercation and the phone-calls made by Mohan Ram  –  PW-1
and Mohan Lal – PW-15, neighbours and co-villagers, came  to  the  place  of
occurrence.  They too requested the  appellant  –  Brij  Lal,  and  the  co-
accused –  Kashi  Ram,  to  go  away.   Instead  of  leaving,  the  accused-
appellant, as well as, the co-accused openly  proclaimed,  that  they  would
not leave without killing Mohan Lal – PW-15.   Under  the  pressure  of  the
neighbours and the co-villagers, they moved towards the front of  the  house
of Sultan Bhat, located in front of the house of Mohan  Ram–PW-1.   At  that
juncture, the neighbours and the  co-villagers  went  towards  the  spot  at
which the accused-appellant – Brij Lal and the co-accused –  Kashi  Ram  had
retreated, and  again  requested  them  to  desist  from  their  intentions.
According to the assertions made in the complaint, at the  instance  of  the
co-accused – Kashi Ram, the appellant – Brij Lal  fired  at  the  gathering.
Om Prakash and Sultan Bhat received bullet injuries from the shots fired  by
Brij  Lal.   Om  Prakash  died  on  the  spot.   Sultan  Bhat  was  rendered
unconscious.  He was removed to hospital, where he  died  on  the  following
day, i.e., on  1.10.1983.   Kashi  Ram  also  fired  from  the  gun  in  his
possession.  It hit Mst. Munni Devi (a woman), who also died  on  the  spot.
In the firing under reference, Labh Singh and Sheria  (a  5  year  old  boy)
were also injured.  The report of the above incident  was  lodged  by  Mohan
Ram – PW-1, on 1.10.1983 at 12.05 a.m.
4.    It is also relevant to mention, that the appellant – Brij Lal and  the
co-accused – Kashi Ram got themselves admitted to a hospital.   As  soon  as
they heard about the death of Sultan Bhat, they ran away from the  hospital.
 The appellant – Brij Lal was however, arrested  on  10.10.1983.   Based  on
the disclosure statement made  by  him,  a  12  bore  pistol  and  an  empty
cartridge were recovered.  The co-accused –  Kashi  Ram  was  successful  in
evading his arrest.  After investigation,  the  appellant  –  Brij  Lal  was
charged under Sections 302, 307 and 324 read with Section 34 of  the  Indian
Penal Code (hereinafter referred to as, the IPC) and Sections 25 and  27  of
the Indian Arms Act, by the Judicial Magistrate No.1, Sri  Ganganagar.   The
learned Magistrate committed the case to the Court of Session, which  framed
charges against the appellant – Brij Lal, under the provisions  referred  to
hereinabove.
5.    The accused appellant  –  Brij  Lal,  pleaded  innocence.   He  sought
recourse to the plea of private defence, under the  second  exception  under
Section 300 of the IPC.  Section 300, IPC is reproduced below:
“300. Murder.—Except in the cases hereinafter  excepted,  culpable  homicide
is murder, if the act by  which  the  death  is  caused  is  done  with  the
intention of causing death, or—
Secondly. —If it is done with the intention of causing  such  bodily  injury
as the offender knows to be likely to cause the death of the person to  whom
the harm is caused, or—
Thirdly. —If it is done with the intention of causing bodily injury  to  any
person and the bodily injury intended to be inflicted is sufficient  in  the
ordinary course of nature to cause death, or—
Fourthly. —If the person committing the act knows that it is  so  imminently
dangerous that it must, in all  probability,  cause  death  or  such  bodily
injury as is likely to cause death, and commits such act without any  excuse
for incurring the risk of causing death or such injury as aforesaid.

Illustrations
(a) A shoots Z with the intention of killing him. Z dies in  consequence.  A
commits murder.

(b) A, knowing that Z is labouring under such  a  disease  that  a  blow  is
likely to cause his death, strikes him with the intention of causing  bodily
injury. Z dies in consequence of the blow. A is guilty of  murder,  although
the blow might not have been sufficient in the ordinary course of nature  to
cause the death of a person in a sound  state  of  health.  But  if  A,  not
knowing that Z is labouring under any disease, gives  him  such  a  blow  as
would not in the ordinary course of nature kill a person in  a  sound  state
of health, here A, although he may intend to cause  bodily  injury,  is  not
guilty of murder, if he did not  intend  to  cause  death,  or  such  bodily
injury as in the ordinary course of nature would cause death.

(c) A intentionally gives Z a sword-cut or club-wound  sufficient  to  cause
the death of a man in the ordinary course of nature. Z dies in  consequence.
Here, A is guilty of murder, although he may not have intended to cause  Z’s
death.

(d) A without any excuse fires a loaded cannon into a crowd of  persons  and
kills one of them. A is guilty of murder, although he may  not  have  had  a
premeditated design to kill any particular individual.

Exception 1.—          xxx        xxx        xxx
Exception 2.—Culpable homicide  is  not  murder  if  the  offender,  in  the
exercise in good faith  of  the  right  of  private  defence  of  person  or
property, exceeds the power given to him by law and causes the death of  the
person  against  whom  he  is  exercising  such  right  of  defence  without
premeditation, and  without  any  intention  of  doing  more  harm  than  is
necessary for the purpose of such defence.

Illustration
Z attempts to horsewhip A, not in such a manner as to  cause  grievous  hurt
to A. A draws out a pistol. Z persists in the assault. A believing  in  good
faith  that  he  can  by  no  other  means  prevent   himself   from   being
horsewhipped, shoots Z dead. A has not committed murder, but  only  culpable
homicide.

Exception 3.—          xxx        xxx        xxx
Exception 4.—          xxx        xxx        xxx
Exception 5.—          xxx        xxx        xxx”

After the statements of the prosecution witnesses were  recorded,  and  that
of the appellant was recorded under Section 313  of  the  Code  of  Criminal
Procedure, even though an opportunity was  afforded  to  the  appellant,  to
lead evidence in his defence, he chose not to produce  any  witness  on  his
behalf.
6.     Vide  his  judgment  dated  22.1.1985,  the   Sessions   Judge,   Sri
Ganganagar, acquitted the appellant-Brij Lal by accepting the plea of  self-
defence raised by him by invoking the second exception  under  Section  300,
IPC.
7.    Dissatisfied with the above judgment dated  22.1.1985,  the  State  of
Rajasthan preferred D.B. Criminal Appeal  No.227  of  1985,  to  assail  the
order dated 22.1.1985 passed by the Sessions  Judge,  Sri  Ganganagar.   The
High Court rendered the impugned judgment on 17.11.2009, whereby the  appeal
preferred by the State of Rajasthan was accepted.  The judgment rendered  by
the  Sessions  Judge,  Sri  Ganganagar  dated  22.1.1985,   acquitting   the
appellant-Brij Lal, was set aside.  The appellant-Brij Lal was found  guilty
of having committed the offence punishable under Section  302  of  the  IPC.
Keeping in mind the fact, that the occurrence had taken place in  1983,  the
High Court awarded the sentence of life imprisonment to  the  appellant-Brij
Lal.  It also imposed a fine of Rs.1,000/-, and in default thereof,  awarded
one year’s rigorous imprisonment, to the appellant.
8.    The appellant has  approached  this  Court,  to  assail  the  impugned
judgment, rendered by the High Court dated 17.11.2009.   During  the  course
of hearing, learned counsel for the appellant,  summarized  the  contentions
advanced on behalf of the appellant, as under:
Firstly, it was contended, that the factum that the appellant-Brij  Lal  had
also suffered injuries, was sufficient to establish, that their  retaliation
by firing gunshots at the gathering,  was  a  matter  of  self-defence,  and
nothing else.  Secondly, it was urged, that the  target  of  the  appellant-
Brij Lal, as per the prosecution story, was  Mohan  Lal  -  PW-15.   And  as
such, there was no question of their having  intentionally  fired  shots  at
the neighbours and co-villagers and therefore,  could  not  have  been  held
guilty of the offence under  Section  302  of  the  IPC.   Thirdly,  it  was
submitted, that the recovery of the weapon, namely, the gun with  which  the
appellant–Brij Lal, allegedly  shot  at  the  neighbours  and  co-villagers,
resulting in the death of Om Prakash, Sultan Bhat and Munni  Devi,  was  not
proved to have been recovered from the  appellant.   And  as  such,  in  the
absence of proof of recovery of the weapon used in the occurrence  from  the
appellant, there was no justification, whatsoever, for  the  High  Court  to
have found the appellant guilty of the offence  under  Section  302  of  the
IPC.  Fourthly, it was submitted, that the co-accused – Kashi Ram,  who  was
tried separately, was prosecuted in the same manner as  the  appellant.   It
was submitted, that the same witnesses as were produced by  the  prosecution
against the appellant-Brij Lal,  were  also  produced  by  the  prosecution,
against the co-accused – Kashi Ram. On the culmination of the trial  against
Kashi Ram, he was found innocent, and  was  acquitted.   It  was  submitted,
that the State of Rajasthan, chose not to  prefer  any  appeal  against  the
order of acquittal of the co-accused –  Kashi  Ram.   According  to  learned
counsel, the prosecution cannot succeed in one case, and fail in the  other,
when the witnesses produced against both accused are the same.  Fifthly,  it
was contended, that the evidence produced by the prosecution  reveals,  that
the incident had occurred more than 200 feet away from the  house  of  Mohan
Ram –  PW-1.   Just  the  above  fact,  according  to  learned  counsel,  is
sufficient to demonstrate, that the mob which had assembled at the place  of
occurrence, was acting in an intimidating manner, resulting in the  accused-
appellant – Brij Lal and the co-accused – Kashi Ram,  retreating  away  from
the house of Mohan Ram – PW-1 towards the  house  of  Sultan  Bhat.   It  is
therefore apparent, that the gunshots fired by the  appellant-Brij  Lal  and
the co-accused – Kashi Ram, were in their self-defence,  and  nothing  more.
Lastly, it was the contention of learned counsel  for  the  appellant,  that
Mohan  Lal  –  PW-15,  in  his   deposition,   clearly   and   unequivocally
acknowledged, that at the time of occurrence when the appellant and the  co-
accused fired the  shots,  he  was  at  a  distance  of  20  feet  from  the
appellant–Brij Lal.  It was the contention of learned counsel, that  if  the
prosecution story is to be believed, the  appellant  should  have  fired  at
Mohan Lal – PW-15,  and  not  at  the  persons  gathered  at  the  place  of
occurrence, as alleged by the prosecution.
9.    During the course of hearing, learned counsel for the  rival  parties,
in order to project their respective claims, relied  on  the  statements  of
only two witnesses, i.e., Mohan Ram – PW-1 and Mohan Lal –  PW-15.   We  are
of the view, that in our determination of the claims,  projected  on  either
side, it is imperative  to  closely  examine  the  testimony  of  these  two
witnesses.  We shall endeavour to do so, hereunder:
10.   Mohan Ram – PW-1:

(i)   In his opening statement, Mohan Ram acknowledged,  that  he  knew  the
accused-appellant – Brij Lal  and  Mohan  Lal  –  PW-15,  from  before.   He
affirmed, that just like  them,  he  too  was  employed  in  the  Irrigation
Department of the State Government.  While  Brij  Lal  and  Mohan  Lal  were
employed in the department as Gauge Readers, he himself  was  working  as  a
Beldar.  All of them were posted at the Head of Suleman.   He  stated,  that
Mohan Lal and Brij Lal  were  allotted  government  quarters  close  to  one
another, at Suleman-ki-Head.  The fact,  that  they  were  quarreling  among
themselves for some time prior to the incident, was also affirmed.   It  was
pointed out, that while Mohan Lal  was  living  in  his  government  quarter
along with his family, Brij Lal was residing  by  himself  in  his  separate
quarter.  He affirmed, that the accused-appellant – Brij Lal used  to  drink
liquor  at  night,  and  create  a  racket  “every  time”,  thereafter.   He
confirmed, that co-accused – Kashi Ram was Brijlal’s drinking  partner,  and
that, Kashi Ram also used to associate along with Brij Lal,  in  the  brawl.
He testified, that Mohan Lal – PW-15, used to  object  to  their  behaviour,
and therefore, the accused-appellant – Brij Lal and the co-accused  –  Kashi
Ram, were inimical to Mohan Lal – PW-15.  He confirmed, that Mohan Lal – PW-
15 had complained to  him  and  others  about  their  behaviour  on  several
occasions, and that, he had also spoken  to  the  accused-appellant  –  Brij
Lal, to persuade him to desist from such activities.  He pointed  out,  that
Brij Lal was adamant, and had refused to stop.  He also stated,  that  Mohan
Lal – PW-15 had taken him to make a representation against Brij Lal, to  the
Overseer of the Irrigation Department.  He (Mohan Lal – PW-15) had given  up
living in his allotted quarter, and had moved to his (Mohan  Ram  –  PW-1’s)
house along with his family, as his tenants.  He confirmed,  that  the  said
shifting had taken place about fifteen days prior to the occurrence.
(ii)  With reference to the occurrence, it was stated,  that  it  had  taken
place between 8.30 p.m. and 9 p.m.  He testified, that  he  was  sitting  in
front of his house on a cot, and that, Mohan Lal – PW-15, and his  wife  and
children, were inside the house.  He deposed, that the  accused-appellant  –
Brij Lal and the co-accused – Kashi Ram, had come to his house with  pistols
in their hands.  The accused-appellant –  Brij  Lal,  it  was  pointed  out,
asked him to call Mohan Lal – PW-15 outside, as they had come to  kill  him.
He stated, that he pleaded with the  accused-appellant,  as  also,  the  co-
accused, not to do any such thing, at his residence.
(iii) He confirmed, that he had seen Mohan Lal – PW-15  scale  the  wall  of
his house, and cross over to the house of his neighbour Badri Ram, and  then
proceeded to the flour mill  of  Milkha  Singh.   He  stated,  that  he  had
shouted out for help, whereafter, his neighbours and  co-villagers,  hearing
his clamour, had reached the place of occurrence.  He deposed, that all  the
persons gathered at the place of  occurrence,  had  requested  the  accused-
appellant – Brij Lal, and the co-accused – Kashi Ram, to  leave  the  place,
but Brij Lal and  Kashi  Ram  were  adamant  in  their  resolve.   They  had
responded by stating, that they would not go anywhere, as they had  come  to
kill Mohan Lal – PW-15.  He testified, that at that  juncture  the  accused-
appellant – Brij Lal, and the co-accused – Kashi Ram, moved  away  from  his
house and stood in front of the house of Sultan Bhat,  but  still  continued
to hurl abuses. He pointed out, that all  the  neighbours  and  co-villagers
were at a distance of about 20 feet from Brij Lal and Kashi  Ram,  and  were
persuading them to stop hurling abuses.  But, they  were  insistent.   Mohan
Ram – PW-1 further deposed, that co-accused – Kashi Ram, at  that  juncture,
exhorted Brij Lal to shoot at the crowd, as everyone was siding  with  Mohan
Lal – PW-15.  He deposed, that Brij Lal, on being so implored, fired at  the
gathering.  He affirmed, that Om Prakash and Sultan  Bhat  received  firearm
injuries.  It was his assertion, that in the  meanwhile,  the  co-accused  –
Kashi Ram also fired from his gun, which hit Munni Devi, Labh  Singh  Mistry
and Sheria.  He deposed, that Munni Devi and Om Prakash died  at  the  spot,
whereas Sultan Bhat became unconscious.
(iv)  He also confirmed, that he had lodged a report  of  the  incident,  at
Police Station Chunawar, around mid-night.  In his  cross-examination  Mohan
Ram – PW-1 asserted, that the persons, who had  gathered  at  the  place  of
occurrence, comprised of men, women and children.   He  denied,  that  those
persons who had gathered there, intended to apprehend the  accused-appellant
– Brij Lal or the co-accused – Kashi Ram.  He confirmed, that  none  amongst
the crowd, was armed with any lathis or sticks.  He denied  the  suggestion,
that Brij Lal and Kashi Ram were attacked by  the  villagers,  with  lathis.
He deposed, that neither Brij Lal nor Kashi Ram had  received  any  injuries
during the occurrence. He also  denied  the  suggestion,  that  the  persons
gathered at the place of occurrence, had chased the  accused-appellant,  and
the co-accused.  He also denied the suggestion, that Brij Lal and Kashi  Ram
had  come  to  the  general  merchant  shop  to  buy  “biris”   (traditional
cigarettes), and had never come to his residence, to beat or harm Mohan  Lal
–  PW-15.
(v)   The  above  deposition  of  Mohan  Ram  –  PW-1,  fully  affirmed  the
prosecution version of the occurrence.
11.   Mohan Lal – PW-15:

(i)   Mohan Lal deposed, that he was employed in the Irrigation  Department,
of the Government of Rajasthan, and was posted at Head of Suleman, as  Gauge
Reader.  He confirmed, that he was living in a government  quarter  allotted
to him, along with his wife and  three  children,  at  Suleman-ki-Head.   He
acknowledged, that the government quarter of the  accused-appellant  –  Brij
Lal, was nearby his own quarter.  He asserted, that the accused-appellant  –
Brij Lal, used to abuse him after drinking liquor, and that, Kashi  Ram  and
his brother-in-law, used to  sometimes  accompany  the  accused-appellant  –
Brij Lal.  He stated, that he had asked the accused  to  desist  from  using
such language, because he was a family man. He deposed, that he  had  called
a “panchayat” (council), to  resolve  the  issue  between  himself  and  the
accused-appellant – Brij Lal.  The “panchayat” was attended by  co-employees
of the Irrigation  Department.   He  confirmed,  that  Brij  Lal,  on  being
called,  had  attended  the  panchayat.   He  deposed,  that  even  at   the
panchayat, the accused-appellant – Brij Lal had reiterated,  that  he  would
do as he wished, and they (the members of the panchayat) may  do  what  they
could.  He also deposed, that after panchayat, he had given  an  application
to the Overseer (Exhibit P-12) of  his  department,  complaining  about  the
conduct of the accused-appellant – Brij Lal.  He  stated  that  despite  the
complaint, the behaviour of accused-appellant – Brij Lal  did  not  improve.
He urged, that to avoid the appellant, he  had  surrendered  the  government
accommodation allotted to him at Suleman-ki-Head and had moved to  a  rented
accommodation, in the house of Mohan Ram  –  PW-1.   He  deposed,  that  the
occurrence had taken place within 10/15 days of his moving to the  house  of
Mohan Ram – PW-1.  The occurrence is stated to have taken  place  between  8
p.m. and 9 p.m..  He asserted, that Mohan Ram – PW-1,  was  sitting  outside
the gate of his house, whilst he himself, his wife  and  children,  were  in
the house.  He deposed, that the accused-appellant – Brij Lal  and  the  co-
accused – Kashi Ram were calling him outside the house.  He confirmed,  that
they were holding pistols in their hands.  On such exhortation, Mohan Ram  –
PW-1 had told the accused-appellant and the co-accused, that  he  would  not
allow them to kill Mohan Lal – PW-15 at his  residence,  but  they  did  not
listen to him, and continued to hurl filthy abuses.
(ii)  Mohan Lal asserted, that he jumped over  the  wall  of  the  house  of
Mohan Ram – PW-1, and from the side of the house of Badri  Ram,  he  entered
the flour mill of Milkha Singh.  He asserted, that the  neighbours  and  co-
villagers hearing the shouts of Mohan Ram  –  PW-1,  ran  to  the  place  of
occurrence.  At that juncture, the accused-appellant – Brij Lal and the  co-
accused – Kashi Ram, had  moved  towards  the  house  of  Sultan  Bhat.   He
asserted, that the crowd comprised of men,  women  and  children.   He  also
deposed, that the villagers requested Brij Lal and Kashi  Ram  to  go  away,
but they were bent on carrying out their objective.  He  stated,  that  Brij
Lal and Kashi Ram fired shots from their pistols, and  the  shots  fired  by
the accused-appellant – Brij Lal hit Om Prakash and  Sultan  Bhat,  whereas,
the shots fired by the co-accused – Kashi Ram hit Muni Devi, Labh Singh  and
Sheria Ram.  He confirmed, that Munni Devi and Om Prakash died at the  spot.
  He  also  stated,  that  the  condition  of  Sultan  became  serious,  and
therefore, the villagers had taken him to hospital.  He asserted,  that  the
accused-appellant – Brij Lal and the co-accused – Kashi Ram, went away  from
the spot after the incident.
(iii)       In his cross-examination Mohan Lal  –  PW-15  stated,  that  the
conduct of accused-appellant – Brij  Lal  had  worsened,  about  six  months
prior to the occurrence.  He stated,  that  his  only  difference  with  the
accused-appellant – Brij Lal was, that he used to abuse him.  He denied  the
suggestion, that the accused-appellant – Brij Lal had ever teased his  wife.
 He reiterated,  that  he  had  lodged  a  complaint  against  the  accused-
appellant – Brij Lal, with his senior officers.  He stated, that  the  first
time, accused-appellant – Brij Lal threatened to kill him, was after he  had
summoned the “panchayat” (council), to resolve their dispute.  Mohan  Lal  –
PW-15 acknowledged, that he had never made such a complaint to  the  police.
He also clarified, that the accused-appellant – Brij Lal and the  co-accused
– Kashi Ram, had been exhorting Mohan Ram – PW-1, to call him (Mohan  Lal  –
PW-15) outside the house.  He stated, that  when  accused-appellant  –  Brij
Lal and the co-accused – Kashi Ram were speaking to Mohan Ram –  PW-1,  they
were visible to him from within  the  house.   He  stated,  that  he  became
scared, and therefore, ran away from the house.  He  deposed,  that  he  had
run away, because the accused-appellant – Brij Lal  was  saying,  that  they
were going to kill him.  He deposed, that he had run away  by  jumping  into
the house of Badri Ram, and therefrom, went to  the  flour  mill  of  Milkha
Singh.  He testified, that Milkha Singh  closed  the  doors,  after  he  had
entered his mill, when he informed Milkha Singh, that the accused  had  come
to kill him.  While in the flour mill of Milkha Singh,  Mohan  Lal  –  PW-15
confirmed, that he could hear the sound of people coming  to  the  house  of
Mohan Ram – PW-1.  He also confirmed hearing the shouts of Mohan Ram  –  PW-
1.  He stated, that he became encouraged and lost his fear,  when  he  heard
the voices of the co-villagers, whereupon, he himself (Mohan  Lal  –  PW-15)
and Milkha Singh came out of the flour mill.  On coming  out,  he  had  seen
the accused-appellant – Brij Lal and the co-accused – Kashi Ram standing  in
front of the house of Sultan Bhat at a distance of  “…about  30-40-45  Ft…”,
from the flour mill.  He stated, that he was standing near Om Prakash,  when
Om Prakash was shot. And that,  Sultan,  Munni  Devi  and  Sheria  Ram  were
standing about 5 feet away from their side.  He confirmed, that he  was  not
hurt by any pellet.  He deposed, that  the  first  shot  was  fired  by  the
accused-appellant – Brij Lal, and the next shot was fired by the  co-accused
– Kashi Ram.  He affirmed, that the accused-appellant  –  Brij  Lal  had  no
quarrel/enmity with the deceased Om Prakash  and  Munni  Devi.   He  stated,
that Om Prakash, Munni Devi and  others  had  only  come  to  the  place  of
occurrence, to save him.   In  his  cross-examination,  Mohan  Lal  –  PW-15
deposed that, while the accused-appellant – Brij Lal and  the  co-accused  –
Kashi Ram were standing in front of the house of Sultan Bhat,  the  deceased
and the injured were standing at a distance of about 20-25  feet,  from  the
house of Sultan Bhat.  The distance between  the  accused-appellant  –  Brij
Lal and the villagers was  about  17  to  18  feet,  whereas,  the  distance
between the co-accused – Kashi Ram and Munni Devi was about 8  to  10  feet.
He deposed, that it was not  possible  for  anyone  to  catch  the  accused-
appellant – Brij Lal and the co-accused –  Kashi  Ram,  because  “…all  were
empty handed…”.  During his cross-examination Mohan  Lal  –  PW-15  deposed,
that the crowd comprised of 20 to 25 men, 10 to 15 women and some  children,
when the firing had taken  place.   He  also  asserted,  that  the  accused-
appellant – Brij Lal, asked Mohan Ram – PW-1, to send forward  Mohan  Lal  –
PW-15 (i.e., himself), because they needed to kill him.  In response to  his
denial, Mohan Lal – PW-15 stated, that  the  accused-appellant  –  Brij  Lal
shouted, that the accused would kill each one  of  those  who  were  helping
Mohan Lal –  PW-15.   Mohan  Lal  -  PW-15  reiterated,  that  none  of  the
villagers was armed with any weapon.  The  suggestion,  that  the  villagers
were chasing the accused and the co-accused, was  denied.   The  suggestion,
that the persons gathered at the place of occurrence  had  lathis  on  their
hands, and that, they had inflicted injuries  on  accused-appellant  –  Brij
Lal and the co-accused – Kashi Ram with lathis, was also denied.
(iv)  The above  deposition  of  Mohan  Lal  –  PW-15,  fully  affirmed  the
prosecution version of the occurrence.
12.   We shall now deal with the individual pleas canvassed at the hands  of
learned counsel for the appellant.
13.   The first contention advanced at the hands of learned counsel for  the
appellant was,  that  the  appellant  had  fired  gunshots  at  the  mob  of
villagers only as a matter of self-defence, when the  accused-appellant  and
the co-accused, had been attacked.  In this behalf, it would be relevant  to
mention, that whilst it is open to an accused to  raise  a  defence  in  the
nature suggested by learned counsel, there is an obvious  pitfall  where  an
accused chooses to do so, in the sense that by  raising  such  a  plea,  the
accused  acknowledges  the  occurrence  itself.   There   is   yet   another
predicament which he is liable to encounter, when raising  such  a  defence.
The same emerges from Section 96  of  the  Indian  Evidence  Act,  which  is
extracted below:
“96. Evidence as to application of language which can apply to one  only  of
several persons.— When the facts are such that the language used might  have
been meant to apply to any one, and could not have been meant  to  apply  to
more than one, of several persons or things, evidence may be given of  facts
which show which of those persons or things it was intended to apply to.”

In this behalf, reference may also be made  to  the  decision  in  Rizan  v.
State of Chhatisgarh, AIR 2003 SC 976, wherein this Court held as under:
“13.  Then comes plea relating to  alleged  exercise  of  right  of  private
defence. Section 96, IPC provides that nothing is an offence which  is  done
in the exercise of the right  of  private  defence.  The  Section  does  not
define the expression 'right of private defence'. It merely  indicates  that
nothing is an offence which is done in the exercise of such  right.  Whether
in a particular set of circumstances, a person acted in the exercise of  the
right of private defence is a question of  fact  to  be  determined  on  the
facts  and  circumstances  of  each  case.  No  test  in  the  abstract  for
determining such a question can be laid down. In determining  this  question
of fact, the Court must consider all the surrounding  circumstances.  It  is
not necessary for the accused to plead in so many words  that  he  acted  in
self-defence. If the circumstances show that the right  of  private  defence
was legitimately exercised, it is open to  the  Court  to  consider  such  a
plea. In a given case the Court can consider it even if the accused has  not
taken it. If the same is available to be considered  from  the  material  on
record. Under Section 105 of the Indian Evidence Act, 1872,  the  burden  of
proof is on the accused, who sets of the plea of self-defence, and,  in  the
absence of proof, it is not possible for the Court to presume the  truth  of
the plea of self-defence. The  Court  shall  presume  the  absence  of  such
circumstances. It is for the accused to place necessary material  on  record
either by himself adducing  positive  evidence  or  by  eliciting  necessary
facts from the witnesses examined for the  prosecution.  An  accused  taking
the plea of the right of private defence is not required to  call  evidence;
he can establish his plea by reference  to  circumstances  transpiring  from
the prosecution evidence itself. The question in such  a  case  would  be  a
question of assessing the true effect of the prosecution evidence,  and  not
a question of the  accused  discharging  any  burden.  Where  the  right  of
private defence is pleaded, the defence must be a  reasonable  and  probable
version satisfying the Court  that  the  harm  caused  by  the  accused  was
necessary for either warding off the attack or for forestalling the  further
reasonable apprehension  from  the  side  of  the  accused.  The  burden  of
establishing the plea of self-defence is  on  the  accused  and  the  burden
stands discharged by showing preponderance of  probabilities  in  favour  of
that plea on the basis of  the  material  on  record.  (See Munshi  Ram  and
others v. Delhi Administration, AIR 1968 SC  702;  State  of  Gujarat v. Bai
Fatima, AIR 1975 SC 1478: State of U.P. v. Mohd. Musheer Khan, AIR  1977  SC
2226  and Mohinder  Pal  Jolly v. State  of  Punjab,  AIR  1979   SC   577).
Sections 100 to 101 define the extent of the right  of  private  defence  of
body. If a person has a right to private defence of body  under  Section 97,
that  right  extends  under  Section 100 to  causing  death  if   there   is
reasonable  apprehension  that  death  or  grievous  hurt   would   be   the
consequence of the  assault.  The  oft  quoted  observation  of  this  Court
in Salim Zia v. State of U.P. (AIR 1979 SC 391), runs as follows:
"It is true that the burden on an accused person to establish  the  plea  of
self-defence is not as onerous as the one which lies on the prosecution  and
that, while the prosecution is required to prove its case beyond  reasonable
doubt, the accused  need  not  establish  the  plea  to  the  hilt  and  may
discharge his onus by establishing a  mere  preponderance  of  probabilities
either by laying basis  for  that  plea  in  the  cross-examination  of  the
prosecution witnesses or by adducing defence evidence."

The accused need not prove the existence of the  right  of  private  defence
beyond reasonable doubt. It is enough for him to show as  in  a  civil  case
that the preponderance of probabilities is in favour of his plea.”
                                                         (emphasis supplied)

14.   The question that arises for consideration in  the  instant  case  is,
whether there is evidence on the record of this case,  to  substantiate  the
plea of self-defence?  Learned counsel for the appellant,  answered  in  the
affirmative.  The basis of the aforesaid answer is,  the  injuries  suffered
by the appellant which, according to the appellant, were caused by  the  mob
when the appellant was attacked.  It was submitted, that  the  gathering  of
neighbours and villagers, at the place  of  occurrence  had  attacked  them,
resulting in their being pushed back to the house of Sultan  Bhat.   It  was
submitted, that it was only in retaliation of the  above  attack,  resulting
in the injuries suffered by the accused, that the accused-appellant  –  Brij
Lal, as also, the co-accused – Kashi Ram, had fired gunshots at  the  crowd,
which was out and out to lynch them.
15.    Having  given  our  thoughtful  consideration  to   the   submissions
advanced, at the hands of learned counsel for the appellant, we are  of  the
view, that there is  overwhelming  evidence  produced  by  the  prosecution,
affirming that the crowd which had gathered  at  the  place  of  occurrence,
consequent upon the shouting of Mohan Ram – PW-1,  was  unarmed.   There  is
also evidence on the record of  the  case  to  authenticate,  that  all  the
villagers were only persuading the accused-appellant – Brij Lal and his  co-
accused – Kashi Ram, not to insist on carrying out their threat,  to  murder
Mohan Lal  –  PW-15.   The  testimony  of  the  prosecution  witnesses  also
demonstrates, that there was substantial  distance  between  the  villagers,
and the place at which the accused were standing  in  the  opposite  of  the
house of Sultan Bhat. Not only Mohan Ram – PW-1, but also Mohan  Lal  –  PW-
15, expressly deposed that none of  the  neighbours  and  co-villagers,  was
armed.   Moreover,  the  reiteration  by  the  witnesses,  that  the   crowd
comprised of men, women and children, by  itself  is  sufficient,  to  infer
that the neighbours and co-villagers were not aiming at causing any harm  or
injury  to  the  accused-appellant  or  the  co-accused.    It   cannot   be
overlooked, that one of the deceased - Mst. Munni Devi was a woman, and  one
of  the  injured  –  Sheria  was  a  child  of  5  years.   On  taking  into
consideration the entirety of the  facts  and  circumstances  of  the  case,
especially the absence of any material evidence produced  by  the  appellant
(to demonstrate that gunshots fired by the accused and the  co-accused  were
in self-defence), the instant contention cannot be accepted.
16.   At this juncture, it is  also  necessary  for  us,  to  refer  to  two
judgments relied upon by learned counsel for the  appellant.   Reliance  was
first placed, on Bhagwan Swaroop v. State of Madhya Pradesh,  (1992)  2  SCC
406, wherefrom our attention was invited to the following observations:
“9.   We do not agree with the  courts  below.  It  is  established  on  the
record that Ramswaroop was being given lathi blows by the complainant  party
and it was at that time that gun-shot was fired by Bhagwan Swaroop  to  save
his father from further blows. A lathi is capable of  causing  a  simple  as
well as a fatal injury. Whether in fact the injuries  actually  caused  were
simple or grievous is of no consequence. It is  the  scenario  of  a  father
being given lathi blows which has to be kept in mind and we are of the  view
that in such a situation a son could  reasonably  apprehend  danger  to  the
life of his father and his firing a  gun-shot  at  that  point  of  time  in
defence of his father is justified. We, therefore, set aside the finding  of
the courts below on this point and hold that Bhagwan Swaroop fired the  gun-
shot to defend the person of his father.”
                                                         (emphasis supplied)

Reliance was also placed on Buta Singh v. State of Punjab (1991) 2 SCC  612,
wherefrom, learned counsel placed emphasis on the following observations:
“8. From the above state of evidence, it appears that  the  defence  version
regarding the incident is a probable one and is supported  by  the  find  of
blood from near the  tubewell  which  is  adjacent  to  the  'dera'  of  the
appellant. When two versions are before the  court,  the  version  which  is
supported by objective evidence cannot be brushed aside  lightly  unless  it
has been properly explained. As stated  earlier,  the  prosecution  has  not
explained how blood was found from near the tubewell and no blood was  found
from the spot where according to them the incident occurred. In addition  to
this, the factum regarding the delay in lodging  of  the  First  Information
Report and the suspicion that it was delayed with a view to  concocting  the
prosecution case and further the delay in forwarding the special  report  to
the Magistrate as well as the case papers to the  hospital  shows  that  the
investigation was not above board. In these  circumstances,  we  think  that
the approach adopted by the courts below cannot be justified.

9. Mr. Behl, learned Counsel for the State, however, vehemently argued  that
the appellant had exceeded his right of private defence.  We  do  not  think
so. Both the appellant and  his  wife  were  attacked.  They  had  sustained
injuries. In the course of assault on  them  they  caused  injuries  to  the
deceased and the prosecution witnesses. It is true that the High  Court  has
come to the conclusion that all the injuries caused  to  the  deceased  were
caused by the appellant Buta Singh. However, that  is  not  the  prosecution
case. Besides, even if it were so,  having  regard  to  the  nature  of  the
incident, it is difficult to say that  he  exceeded  the  right  of  private
defence for the obvious reason that he could  not  have  weighed  in  golden
scales in the heat of the moment the number of injuries required  to  disarm
his assailants who were armed with lethal weapons.  We  are,  therefore,  of
the opinion that the submission of the learned Counsel for the State  cannot
be accepted in the facts and circumstances of this case.”
                                                         (emphasis supplied)

17.   Having perused the judgments relied upon by learned  counsel  for  the
appellant, and keeping in mind the facts and circumstances of the  case,  we
are of the view, that no benefit can be derived  by  the  appellant  on  the
legal position expressed by this Court, with reference to the plea of  self-
defence.  Herein, there is no evidence to  demonstrate,  that  the  accused-
appellant – Brij Lal and the co-accused – Kashi Ram were actually  attacked,
and it was as a matter of self-defence that they fired at  the  crowd,  with
their pistols.  We have already  examined  the  relevant  evidence,  on  the
instant aspect of the matter above.  We  therefore  find  no  merit  in  the
first contention, advanced by learned counsel for the appellant.
18.   The second contention advanced at the hands  of  learned  counsel  for
the appellant was, that the entire prosecution version discloses,  that  the
alleged intention of the accused-appellant – Brij Lal was  to  murder  Mohan
Lal – PW-15.   It  was  submitted,  that  there  was  no  occasion  for  the
appellant to cause fatal injuries to three unknown persons, by firing  shots
at them.  Even though, the second contention  advanced  by  learned  counsel
seems to be interesting, yet we find no merit therein.  The reason  why  the
neighbours and the co-villagers had gathered  at  the  place  of  occurrence
was, to protect Mohan Lal – PW-15, by dissuading the accused from  insisting
on to carry out their objective.  Consequent upon  their  being  angered  by
the villagers, they retaliated by firing indiscriminately at the  gathering.
 Since it was not disputed by the accused-appellant – Brij Lal,  that  three
fatal (besides other) injuries, were caused  by  the  accused-appellant  and
his co-accused, the onus lies on the appellant  to  demonstrate  the  reason
and the justification for  their  action.   The  evidence  produced  by  the
prosecution   demonstrates,   that   the   accused   had   fired    gunshots
indiscriminately, on being angered by the gathering,  which  was  trying  to
persuade them from carrying out their singular objective – to cause harm  to
the person of Mohan Lal – PW-15. Having accepted,  that  they  had  actually
fired at the neighbours and the villagers, who had gathered at the place  of
occurrence, it does not lie in their mouth to raise such a  plea.   For  the
aforesaid reasons, we find no merit even in the instant contention.
19.   The third contention advanced by learned  counsel  for  the  appellant
was, that the recovery of the  weapon,  namely,  the  gun,  with  which  the
accused-appellant – Brij Lal had shot at the crowd, was not proved  to  have
been recovered from the appellant.  It was the  contention  of  the  learned
counsel, that one of the  recovery  witnesses  had  deposed,  that  the  gun
recovered at the instance of the accused, was found wrapped when it was  dug
out.  The other witness to the recovery  had  stated  otherwise.  First  and
foremost, as noticed hereinabove, such a plea could have  been  raised  only
if the appellant had been in denial, and had adopted  the  stance,  that  he
had not fired at the crowd at the time of occurrence.   Since  that  is  not
his plea, the instant submission  is  wholly  misconceived.   Secondly,  the
factum of recovery has been substantiated by  the  prosecution  through  the
statements of Mohan Ram – PW-1 and Mohan Lal – PW-15.  Even  the  signatures
of the accused-appellant – Brij Lal were obtained on the  “mazhar”  prepared
at the time of recovery.  In such view of the matter,  whether  or  not  the
recovered gun was found without any covering, or  in  a  wrapped  condition,
when the same was dug out, at the instance of the accused-appellant  –  Brij
Lal, makes no difference, whatsoever.  For the reasons  recorded  above,  we
find no merit in the instant contention.
20.   The fourth contention advanced by learned counsel  for  the  appellant
was, that the  co-accused  –  Kashi  Ram,  who  was  separately  tried,  was
acquitted.  In this behalf, the projection of learned counsel was, that  the
very same witnesses,  who  were  relied  upon  by  the  prosecution  in  the
separate trial of the appellant, had deposed during the course of the  trial
conducted against the co-accused – Kashi Ram, and as such, the acquittal  of
Kashi Ram and the conviction of the accused-appellant – Brij  Lal,  made  no
sense whatsoever.  It would be relevant to  mention,  that  the  most  vital
prosecution witness, in the case on hand, was Mohan Lal –  PW-15.   All  the
allegations focus around Mohan Lal – PW-15.  The  entire  prosecution  story
revolved around the fact, that the accused-appellant – Brij Lal and the  co-
accused – Kashi Ram were out and out to harm Mohan Lal – PW-15,  on  account
of their previous discord.  The witness Mohan Lal, who  appeared  as  PW-15,
before the trial Court, in the  matter  out  of  which  the  instant  appeal
arises, was fully described as, son of Balbir Chand, caste Meghwal, aged  38
years, resident of Village Ghuman, Tehsil Nawanshahr, Police Station  Banga,
District Jalandhar.  Whereas, Mohan Lal who appeared as PW-16 in  the  trial
of the co-accused – Kashi Ram, was described as, son  of  Lekhram  Bhat  (in
the judgment dated 18.3.1994  rendered  by  the  Additional  Sessions  Judge
No.2, Sri Ganganagar, in Sessions Trial No.26 of 1993),  wherein  Kashi  Ram
was the accused.  In the above judgment, most of the  prosecution  witnesses
had resiled, and did not identify the co-accused – Kashi Ram, as the  person
involved in the occurrence.  The position in the present case  is  just  the
reverse.  All  the  relevant  prosecution  witnesses,  duly  identified  the
accused-appellant – Brij Lal.  It  is  therefore  not  possible  for  us  to
accept, that the accused-appellant – Brij  Lal  deserves  to  be  acquitted,
because of the acquittal of  Kashi  Ram  in  the  separate  trial  conducted
against him.  The instant contention is therefore, accordingly, declined.
21.  The fifth contention advanced at the hands of learned counsel  for  the
appellant was, that as a consequence  of  the  aggressive  attitude  of  the
neighbours  and  the  co-villagers,  who  had  gathered  at  the  place   of
occurrence, the accused-appellant – Brij Lal  and  the  co-accused  –  Kashi
Ram, were pushed back to a distance of about 200  feet  from  the  house  of
Mohan Ram – PW-1.  It was submitted, that the above factual position  itself
was sufficient, to demonstrate that the attitude  of  the  people,  who  had
gathered at the place of occurrence, was intimidatory in nature.  And  that,
firing by the accused-appellant – Brij Lal and the co-accused –  Kashi  Ram,
was merely a matter of self-defence.  We have  already  expressed  our  view
with reference to  the  issue  of  self-defence  raised  on  behalf  of  the
appellant, in substantial detail hereinabove.  The aforesaid  submission  is
sought to be projected again, by adding one further aspect  to  the  factual
narration, namely, the fact that when the gunshots were fired  by  Brij  Lal
and Kashi Ram, they were at a distance  of  more  than  200  feet  from  the
residence of Mohan Ram – PW-1.  We find  hardly  any  justification  in  the
submission projected by learned counsel for the appellant,  in  a  different
perspective.   The  prosecution  has  clearly   demonstrated   through   the
testimony recorded on oath, that none of the persons gathered at  the  place
of occurrence was armed in any manner.  It is also apparent, that the  crowd
gathered at the  place  of  occurrence  was  comprised  of  men,  women  and
children.  The fact, that there was a  distance  of  about  17  to  18  feet
between the accused-appellant – Brij  Lal  and  the  villagers,  shows  that
there was no real threat to  him  when  he  opened  firing  at  the  unarmed
gathering including women and  children.   It  was  only  because  of  their
desire to retaliate against the crowd,  consequent  upon  the  crowd  having
gathered to protect Mohan Lal – PW-15, cannot be a satisfactory  reason  for
the appellant to fire  gunshots  indiscriminately.   It  is  therefore,  not
possible for us to accept even the  fifth  contention  advanced  by  learned
counsel for the appellant.
22.   The last contention advanced by  learned  counsel  for  the  appellant
was, that Mohan Lal – PW-15 was also a part of the crowd, which the accused-
appellant – Brij Lal and the co-accused – Kashi  Ram  were  facing,  and  as
such, he ought to have fired at him, rather than at  the  other  members  of
the crowd. The instant submission is wholly misconceived and does not  arise
at all.  The accused-appellant did not even make  the  above  suggestion  to
the prosecution witnesses,  when  they  were  being  cross-examined  on  his
behalf. Moreover, the actual suggestion given  was,  that  the  accused  had
come to a general merchant shop to  buy  “biris”  (traditional  cigarettes),
and that, they never come to the place of occurrence, or that, they had  any
intention to harm Mohan Lal – PW-15.  In view of  the  conclusions  recorded
by us in response to the first, second and fifth  contentions  (advanced  by
learned counsel for  the  appellant),  we  find  no  merit  in  the  instant
contention, and the same is also hereby rejected.
23.   To be fair to learned counsel for the appellant, we  must  also  refer
to the judgment in Sunil Kumar Sambhudayal Gupta v.  State  of  Maharashtra,
(2010) 13 SCC 657, wherefrom, learned counsel placed  emphatic  reliance  on
the observations extracted herein below:
“38. It is a well-established principle of law, consistently reiterated  and
followed by this Court that while dealing with a judgment of  acquittal,  an
appellate court must consider the  entire  evidence  on  record,  so  as  to
arrive at a finding as  to  whether  the  views  of  the  trial  court  were
perverse or otherwise unsustainable. Even  though  the  appellate  court  is
entitled to consider, whether in arriving at a finding of  fact,  the  trial
court had placed the burden of proof incorrectly  or  failed  to  take  into
consideration any admissible evidence and/or had  taken  into  consideration
evidence brought on record contrary to law; the appellate court  should  not
ordinarily set aside a judgment of acquittal in a case where two  views  are
possible, though the view of the appellate court may be  the  more  probable
one. The trial court which has the benefit of watching the demeanor  of  the
witnesses is the best judge of the credibility of the witnesses.

39. Every accused is presumed to be innocent unless  his  guilt  is  proved.
The presumption of innocence is a human  right.  Subject  to  the  statutory
exceptions, the said principle forms the basis of criminal jurisprudence  in
India. The nature of the offence, its seriousness  and  gravity  has  to  be
taken into consideration.  The appellate  court  should  bear  in  mind  the
presumption of innocence  of  the  accused,  and  further,  that  the  trial
court's acquittal bolsters the presumption of  his  innocence.  Interference
with the decision of the trial court in a casual or  cavalier  manner  where
the other view is possible should be avoided, unless there are good  reasons
for such interference.

40. In exceptional cases where there are compelling circumstances,  and  the
judgment under appeal is found to  be  perverse,  the  appellate  court  can
interfere with the order of acquittal. The findings of fact  recorded  by  a
court can be held to be perverse if the findings have  been  arrived  at  by
ignoring or excluding relevant material  or  by  taking  into  consideration
irrelevant/inadmissible material. A finding may also be said to be  perverse
if  it  is  “against  the  weight  of  evidence”,  or  if  the  finding   so
outrageously defies logic as to  suffer  from  the  vice  of  irrationality.
(See Balak Ram v. State of U.P., (1975) 3  SCC  219,  Shailendra  Pratap  v.
State of U.P., (2003) 1 SCC 761, Budh Singh v. State of U.P., (2006)  9  SCC
731, S. Rama Krishna v. S. Rami Reddy, (2008) 5 SCC 535, Arulvelu v.  State,
(2009) 10 SCC 206, Ram Singh v. State of H.P., (2010) 2 SCC 445 and Babu  v.
State of Kerala, (2010) 9 SCC 189).”
                                                         (emphasis supplied)

24.   We have given our thoughtful  consideration  to  the  parameters  laid
down in the above judgment.  We are however of  the  considered  view,  that
the High Court relied upon cogent  evidence,  to  set  aside  the  order  of
acquittal passed by the Additional Sessions Judge.  We  are  also  satisfied
in recording, that the trial Court had overlooked  vital  evidence  recorded
on behalf of the prosecution, specially during the cross-examination of  the
prosecution witnesses, whereupon, the position of  there  being  any  second
way of viewing the facts, was absolutely out of question.   We  are  of  the
considered view, that the  statements  of  the  two  prosecution  witnesses,
namely, Mohan Ram – PW-1 and Mohan Lal – PW-15, along with the testimony  of
the other witnesses, would clearly and unequivocally lead to the  inference,
that the accused-appellant – Brij Lal was guilty  of  having  committed  the
offence under Section 302 of the IPC,  insofar  as  his  having  caused  the
murders of Om Prakash and Sultan Bhat are concerned.   There  is  absolutely
no question of extending the benefit of any doubt to  the  accused-appellant
– Brij Lal, in the present case.
25.   For the reasons recorded above, we find no merit in  this  appeal  and
the same is, accordingly, dismissed.

                                  ....…………………………….J.
                                             (Jagdish Singh Khehar)



New Delhi                                    ………………………………..J.
August     17,     2016                                   (Arun      Mishra)








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