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Saturday, April 22, 2017

The accused is presumed to be innocent until proven guilty. The accused possessed this presumption when he was before the Trial Court. The Trial Court’s acquittal bolsters the presumption that he is innocent.The appellate court should always keep in mind that the Trial Court had the distinct advantage of watching the demeanour of the witnesses. The Trial Court is in a better position to evaluate the credibility of the witnesses.The appellate court may only overrule or otherwise disturb the Trial Court’s acquittal if it has “very substantial and compelling reasons” for doing so. If two reasonable or possible views can be reached—one that leads to acquittal, the other to conviction—the High Courts/appellate courts must rule in favour of the accused.


                                                                  REPORTABLE
                        IN THE SUPREME COURT OF INDIA

                       CRIMINAL APPELLATE JURISDICTION

                     CRIMINAL APPEAL NOS.119-120 OF 2014


SUDHA RENUKAIAH & ORS.                 .... APPELLANTS

                                   VERSUS

STATE OF A.P.                          .... RESPONDENT



                               J U D G M E N T


ASHOK BHUSHAN, J.

1.    These appeals have been filed against  judgment  dated  09.07.2013  of
High Court of Andhra Pradesh, allowing the Criminal Appeal No. 340  of  2009
and Criminal Revision Case No. 643 of 2008.Criminal Appeal was filed by  the
State  of  A.P.  and  Criminal  Revision  was  filed  by  Somarowthu   Laxmi
Samrajyam, wife of Siva Sankara  Rao  deceased.  The  High  Court  vide  its
judgment has set aside the order of the Trial Court acquitting  the  accused
and has convicted the accused under Section 302 read with Section  149  IPC.
The accused aggrieved by the judgment of High Court,  convicting  them  have
come up in these appeals.
2.    The prosecution case briefly stated is:
      All the accused and the de facto complainants are permanent  residents
of Vellaluru village. Two factions, one of the accused party and another  of
complainant party had been attacking each other and several  criminal  cases
had been registered against both the factions.  One  Satyanarana,  belonging
to the complainant party was killed on  07.02.2003,  for  which  a  case  in
Crime No. 08 of 2003 of Ponnur Rural Police Station was registered  for  the
offences punishable under Sections 147, 148  and  302  read  with  149  IPC.
While so, another case in Cr. No. 35 of 2003 of Ponnur Town Police  Station,
was registered for the offences punishable under Sections 147, 148  and  302
read with 149 IPC against Somarowthu  Tirupathirao(hereinafter  referred  as
deceased No. 1),  Somarowthu  Siva  Sankara  Rao  (hereinafter  referred  as
deceased No. 2) and others who were alleged to have killed one  Sooda  China
Veeraiah and in connection with the said case, the above named two  deceased
and others were arrested and remanded to judicial custody.  The  Court  gave
conditional bail to them to the effect that they should  remain  at  Bapatla
only and shall report daily before the Bapatla  Police  Station,  and  shall
also appear before the Ponnur Court once in a week. In connection  with  the
above case, on 10.10.2013 the deceased No. 1 and No. 2, along  with  PWs.  1
to 6 and PW.9, went to Ponnur on three two-wheelers to attend the Court  and
after attending the Court, they were returning back in the  evening  and  on
receipt of the said information, all the accused except  A.2,  A.4  to  A.6,
A.11, A.13 and A.18 conspired together  and  as  A.18  was  having  a  lorry
bearing No. ADM 8373, all  of  them  collected  deadly  weapons  like  axes,
knives, rods and sticks, went in the  lorry  of  A.18  and  dashed  the  two
wheeler in which both the  deceased  and  PW.5  were  travelling.  Both  the
deceased fell down from two wheeler. Thereafter, the accused  attacked  them
indiscriminately and killed them and also inflicted  injuries  on  PW.5  and
they all ran away from the scene of offence in the  same  lorry  along  with
the weapons. Deceased No. 1 died on the spot and other injured were  shifted
to the Hospital. The others, who were  following  the  two  wheeler  of  the
deceased witnessed the incident  and  reported  the  matter  to  police  and
shifted the second deceased to Ponnur Hospital, where  the  Doctor  declared
him dead and other injured (P.W.5)  was  referred  to  Government  Hospital,
Guntur. On intimation, the police went and recorded the statement  of  PW.1.
PW.20 the Head Constable, Bapatla Town P.S., handed over the file  to  PW.21
who registered a case in Crime No.57 of 2013  for  the  offences  punishable
under Sections 147, 148, 307, 302 read with 149  IPC.  After  completion  of
investigation, PW.23 laid the charge sheet.

3.    The incident took place at 04:00 PM. Deceased-1, Tirupati Rao died  on
spot, whereas Siva Sankara Rao, Deceased-2 and S. Venkaiahnaidu (PW.5)  were
immediately taken to Govt. Hospital, Ponnur at which Hospital  Siva  Sankara
died  between  05:30  PM  to  06:00   PM.   Venkaiahnaidu(PW.5),   who   was
unconscious, on advice of Doctors was shifted  to  Govt.  Hospital,  Guntur.
The Police came at Govt. Hospital, Ponnur and  recorded  the  statement   of
Sivarama Krishnaiah (PW. 1) at 06:00PM, on the  basis  of  which  statement,
the FIR was registered, as Criminal Case No. 57 of 2003 under  Section  147,
148 and 302 read with 149 of IPC.
4.    PW.23, Investigating Officer(hereinafter referred to as 'IO') took  up
the investigation on  10.10.2003  itself.  After  visiting  Govt.  Hospital,
Guntur, IO  found  Venkaiahnaidu   unconscious.  He  could  not  record  the
statement of PW.5. PW.5 on  14.10.2003  was  shifted  to  Hi-tech  Hospital,
Guntur where he regained  consciousness  after  20  days.  IO  recorded  the
statement of PW.5 on 04.11.2010 at Hi-tech Hospital.  The  IO  also  visited
the place of incident, seized various articles, prepared the sketch map  and
also got the  spot  photographs.  After  conducting  the  investigation,  IO
submitted the charge sheet  against  19  accused,  out  of  which  A.18  had
already died on 14.12.2003. All the accused were put on  trial.  Prosecution
before the Trial Court examined PW.1 to PW.23, marked exhibit  P.1  to  P.25
and also marked M.O.1 to 16. PW.1 to PW.6 and PW.9 are the eye-witnesses  of
the incident. PW.7 and PW.8 are the wives of first and second deceased,  who
after knowing about the incident rushed to the scene of offence.  PW.10  was
examined to show that on the date of incident,  she  had  seen  the  accused
making preparation in a lorry in front of his house. PW.16 is a  doctor  who
treated the injured at Govt. Hospital, Guntur.  Doctors  who  conducted  the
postmortem of two dead bodies  were  also  examined,  as  PW.17  and  PW.18.
P.W.23  is  Investigating  Officer  who  conducted  the  investigation.  The
accused did not lead any evidence. During pendency of the  trial  A.1,  A.9,
A.11 and A.18 having died, trial abated against such accused.

5.    The Trial Court vide  its  judgment  dated  24.12.2007  acquitted  the
accused. Trial Court after referring to evidence of  eye-witnesses  came  to
the conclusion that there  were  contradictions  and  omissions.  The  Trial
Court observed that medical evidence does not support any injury  by  battle
axe. After referring to the injuries of P.W.5 and  medical  evidence,  Trial
Court observed that it is not possible to hold  that  injuries  were  caused
with sharp edge weapon like hunting sickle. Trial Court  held  that  accused
are entitled to benefit of doubt and acquittal. Aggrieved  by  the  judgment
of Trial Court, State filed an appeal being Criminal Appeal No.340 of  2009.
Somarowthu Laxmi Samarajaya  wife  of  Siva  Sanakara  Rao  deceased,  filed
Criminal Revision No.  643  of  2008.  Both  Criminal  Appeal  and  Criminal
Revision were heard together and have been allowed by the  High  Court.  A.1
to A.3, A.5 to A.7 and A.11 were found guilty under Section  302  read  with
149 IPC  and  they  have  been  convicted  and  sentenced  to  undergo  life
imprisonment and to pay a fine of Rs.500/- each. Acquittal of  A.12  to  A.9
have been affirmed. These appeals have been filed by  A.2,  A.3,  A.5,  A.6,
A.7 and A.11 (A-1, being dead).
6.    We have heard Shri A.T.M. Ranga Ramanujam  and Shri Sidharath  Luthra,
learned senior  counsel  for  the  appellants.  Ms.  Prerna  Singh,  learned
counsel has appeared on behalf of the State.
7.    Learned counsel for the appellants in support of the appeal  contended
that the order of acquittal by the Trial Court was based on appreciation  of
evidence on record which order of acquittal required no interference by  the
High Court. It is contended that even if two views are possible,  the  order
of Trial Court acquitting the accused  need  no  interference  by  Appellate
Court. The medical evidence  which  was  led  by  the  prosecution  did  not
support the ocular evidence led  by  so  called  eye-witnesses.  Hence,  the
Trial Court  rightly  disbelieved  the  prosecution  case.  The  High  Court
wrongly put the burden on the  accused  to  prove  that  deceased  and  eye-
witnesses were not required to attend the Court whereas burden lies  on  the
prosecution to prove that  the  deceased  and  all  the  eye-witnesses  were
required  to  attend  the  Ponnur  Court  from  where  they  claimed  to  be
returning.  There  being  long  standing  enmity  between  the  accused  and
complainant party, the accused have been roped in. When Doctors came  before
the Court for recording their evidence, the weapons which were  seized  were
not shown to them, so  as  to  form  an  opinion  whether  injuries  on  the
deceased and injured witness could have been caused by such  weapons,  which
prejudicially affect the prosecution case.
8.    Learned counsel for the State  refuting  the  submissions  of  learned
counsel for  the  appellants  contends  that  the  High  Court  has  rightly
reversed the order of acquittal. It is contended that eye-witnesses  account
given by the eye-witnesses  was  worthy  of  reliance  and  Trial  Court  on
account of insufficient reasons discarded such evidence. The  injured  PW.5,
Venkaiahanaidu, eye-witness had fully proved the incident and   specifically
proved the roles of accused which evidence ought not to have been  discarded
by the Trial Court. It is submitted that the High Court  has  correctly  re-
appreciated the evidence and  has  given  cogent  reasons  for  finding  the
evidence trustworthy and believable. The account of injuries  as  proved  by
eye-witnesses  was  fully  corroborated  with  the  medical  evidence.   The
evidence of eye-witnesses who were accompanying the  deceased  Nos.1  and  2
could not have been discarded as  interested  witnesses  whereas  they  were
family members who were accompanying the deceased  on  the  motor-cycle  and
others on two-wheeler which eye-witnesses  could  prove  the  incident.  The
judgment of conviction by the High Court is based  on  correct  appreciation
of evidence and the accused having been found guilty,  the  appeals  deserve
to be dismissed.
9.    Learned counsel for the appellants  has  placed  reliance  on  several
judgments of this Court which  shall be referred to  while  considering  the
submissions of the parties.
10.   As noted above, PW.1 to PW.6 and PW.9 are  all  eye-witnesses  of  the
incident. PW.5, Venkaiahanaidu is an injured witness who was  travelling  on
the Hero Honda motor-cycle driven by  Tirupati  Rao,  his  father  (deceased
No.1). The Trial Court   after  commenting  on  the  evidence  of  the  eye-
witnesses had proceeded to discard the evidence by giving some  reasons.  We
have carefully looked  into  the  order  of  the  Trial  Court  as  well  as
depositions of eye-witnesses and adverted to the reasons given by the  Trial
Court for not believing the evidence. We shall refer to  the  reasons  given
by the Trial Court for discarding eye-witnesses one by one.  We  first  take
up the deposition of the injured witness-PW.5 and the reasons given  by  the
Trial Court to discard his evidence.
11.   As noted above, PW.5, aged about 12 & ½  years on the day of  incident
was sitting on Hero Honda motor bike driven by  his  father,  Tirupati  Rao,
deceased No.1, Siva Sankara Rao deceased No. 2,  was  also  sitting  on  the
same motor  bike.  PW.5,  Venkaiahanaidu  in  his  eye-witness  account  has
deposed that he, his father and Siva Sankara Rao were on  Hero  Honda  motor
bike returning to Baptala, PW.1- Sivarama Krishnaiah, PW.3, Murali  Krishna,
were coming on scooter whereas Veerahaviah, PW.4, Venkatalakshmi  Narasimha,
PW.2 and  PW.9, Venkateswara Rao were coming on TVS  moped.  They  left  for
about 3 or 3.40 p.m. and  at about 4 p.m. when they  reached  the  scene  of
offence, Tirupati Rao, his father observed that a lorry driven by accused A-
3 was coming from opposite direction, his father turned the  vehicle  to  go
back. At that time the lorry hit their motorcycle, they all fell  down.  All
the accused were in the lorry with knives and  axes.  His  father  and  Siva
Sankara Rao were attacked by the accused with axes  and  knives.  A-19  beat
PW.5 on his right temporal bone with knife whereas Botchu Vasu –  A-11  beat
with stick on his right side.  He stated that he  lost  consciousness  which
he regained at Hitech  Hospital,  Guntur.  It  has  come  on  evidence  that
immediately after occurrence both  Shiva  Shankar  Rao  and  Venkaiah  Naidu
were taken to Government Hospital, Ponnur. Shiva Shankar  Rao  died  between
5.30 to 6 p.m. at Government Hospital, Ponnur and Venkaiahanaidu,  PW.5  was
shifted to Government Hospital, Guntur where he was examined  at  6.15  p.m.
by Dr. Vinayvardhan, PW.16, who in his evidence has clearly proved  that  on
10.10.2003 at 6.15 p.m. he examined injured  Venkaiahanaidu  accompanied  by
Murali Krishna, PW.3 and injuries were found in  his  body.  PW.23,  IO  had
taken the investigation in the evening on  10.10.2003  itself  and  recorded
statement of PWs.1, 2, 3, 4, 6 and 9 on the same day. He also  on  the  same
day came to know that injured, PW.5  was  shifted  to  Government  Hospital,
Guntur where he went and found  PW.5 unconscious, hence, statement  of  PW.5
could not be recorded on that day.
12.   Now, let us come to the judgment of the Trial Court and advert to  the
reasons given by the Trial Court for discarding the evidence of injured eye-
witness. In paragraph 15 of the judgment,  Trial  Court  has  observed  that
PW.23 in his statement has stated that when he went to Government  Hospital,
Ponnur, PW.5 was absent and he was shifted to  Government  Hospital,  Guntur
as  his  condition  was  critical.  The  Trial  Court  has   observed   that
unfortunately “the Doctor at Government Hospital, Ponnur  was  not  examined
and there is no record to show that PW.5 was also taken  to  the  Government
Hospital, Ponnur along with the  second  deceased”.  The  above  observation
that no Doctor from Government Hospital, Ponnour was examined nor  there  is
any record to show that PW.5 was taken to Government  Hospital,  Ponnur  has
no  significance  since  Venkaiahanaidu,  PW.5  was  shifted  to  Government
Hospital, Guntur where he was examined at 6.15 p.m. on the  same  day  which
was proved by the Doctor. PW.16. PW.1 and PW.3, both had stated  that  after
the incident both the injured  Siva  Sankara  Rao  and  Venkaiahanaidu  were
taken to the Government Hospital, Ponnur and after 5.30  p.m.  Siva  Sankara
Rao died and Venkaiahanaidu was asked to be taken  to  Government  Hospital,
Guntur. Non-examination of Doctor to  prove  that  injured  PW.5  was  first
taken to Government Hospital, Ponnur  was  inconsequential  and  immaterial,
when there is no dispute  that   injured  was  admitted  in  the  Government
Hospital, Guntur and was examined by the Doctor at 6.15  p.m.  on  the  same
day. In paragraph 16 Trial Court has referred to evidence of  PW.16,  Doctor
who examined PW.5 on 10.10.2003 at 6.15 p.m. The evidence of  Doctor,  PW.16
extracted by the Trial Court in paragraph 16 of the judgment that PW.16  who
was working as CMO in the Government Hospital, Guntur  has  stated  that  on
10.10.2003 at 6.15 p.m. he  examined  Venkaiahanaidu,  PW.5  accompanied  by
Murali Krishna, PW.3, the Doctor was also noted that PW.5  was  injured  and
said to be beaten  with  Veta  Kodavali  (hunting  sickle).   The  following
injuries were noticed by the Doctor:
“1.   Diffused swelling 10 x 10 cm on right occipital  partial  region  with
one centimeter laceration-bleeding.
2.    Graze abrasion on left hand and fore  arm  10  x  5  cm  size  red  in
colour.

X-Ray skull reveals no bone injury  X-ray  left  hand  with   wrist  reveals
fracture noted in the  lower end of radius. Ward opinion with I.P.  No.49385
head injury patient absconded on 14.10.2003.
I am of opinion basing on the X-ray and ward  opinion  the  injury  No.2  is
grievous in nature; No.1 is simple in nature might have been caused  due  to
blunt  and  rough  objects  and  aged  about  1  to  6  hours  prior  to  my
examination. Ex.P13 is the wound certificate issued by me.”


13.   Trial Court  after  noticing  the  evidence  of  PW.16  has  made  the
following observation :
“In fact, this evidence gives rise to many doubts. First of all  it  is  not
possible to hold that the nature of injuries  could  be  caused  with  sharp
edged weapon like hunting sickle.”


14.   The Trial Court held that it is not possible to hold that  the  nature
of injuries could be caused with sharp edged  weapon  like  hunting  sickle.
This was one of the reasons for discarding the evidence of PW.5.
15.   PW.5 himself came in the  witness  box  and  was  examined.  PW.5  has
deposed about the injuries caused to him. In his statement PW.5 stated:
“Velivala Akkaiah (A19) beat me on my right  temporal  bone  with  a  knife.
Botchu Vasu(A11) beat with a stick on  my  right  sticks.  Valivala  Akkaiah
(A19) caught hold of my hands and legs and thrown me. I lost  consciousness.
I regained consciousness in Hitch Hospital, Guntur.
      After that police examined me.”


16.   When PW.5 has stated that he was beaten by knife and  stick  on  right
temporal bone, the injuries found in his person have to be  looked  into  in
the light of the evidence given by him.
17.   When, PW.5 himself has stated that he was attacked by knife and  stick
the injuries which were noticed by the  Doctor  were  caused  by  knife  and
stick, since there is no inconsistency between the ocular evidence  of  PW.5
and medical evidence of PW.16, the reason  given  by  the  Trial  Court  for
discarding the evidence of PW.5 is incorrect.
18.   The Trial Court further has observed that  PW.23  had  not  taken  any
endorsement from the  Doctor  to  the  effect  that  PW.5  was  in  fact  in
unconscious state of mind, when he visited Hospital on 10.10.2003 and  found
PW.5 unconscious. The Trial Court  further  observed  that  since  PW.5  was
unconscious for considerable period and regained consciousness nearly  after
more than 20 days, it was expected that the investigation agency  to  secure
the presence of the Doctor while examining this  witness.  The  Trial  Court
made the following observation in paragraph 17:
“Even according to  prosecution,   PW.5  was  unconscious  for  considerable
period  and  regained  consciousness  nearly  after  more  than   20   days.
Naturally, we will expect the investigation agency to  secure  the  presence
of the doctor while examining this witness. In the above circumstances,  any
amount of doubt is created about the examination of this  witness.  Even  at
the sake of repetition it must be pointed out that the absence  of  evidence
from the doctor PW.16 that PW.5 was brought to the hospital  in  unconscious
state, the whole theory must be disbelieved. Which again will eliminate  the
evidence of PW.5. Now we got the evidence of PW.1, 2, 4, 5 and 9.”


19.   The Trial Court has drawn adverse inference against  the  evidence  of
PW.5 on the ground that no evidence was given by  the  Doctor,  PW.16  about
the unconscious state of PW.5, hence, the whole theory must be  disbelieved.
PW.5 has stated that after being attacked on  the  scene  of  occurrence  he
became unconscious and  regained  consciousness  only  at  Hitech  Hospital,
Guntur.
20.   PW.23, IO in his statement has  clearly  stated  that  he  went  after
recording the evidence of  PW.1,  2,  3,  4,  6  and  9  to  the  Government
Hospital, Guntur and found the injured Venkaiahanaidu, PW.5  in  unconscious
state, hence, could not record his statement. Following was stated by IO  in
his statement:
“I visited GGH Guntur and found the injured S.  Venkaiah  Naidu  (P.W.5)  in
unconscious state; Hence, I could not record his statement.”


21.   PW.5 appeared in the Court and in  examination-in-chief  question  was
put to him that whether he was unconscious at the time when he was  admitted
in Government Hospital, Guntur  and  when  he  regained  his  consciousness.
PW.5, both in examination-in-chief  and  cross-examination  stated  that  he
regained  consciousness  after  20  days   and   next   day   of   regaining
consciousness his statement was recorded.
22.   Doctor,  PW.16,  who  appeared  before  the  Court  and  recorded  his
evidence was not even put any question as  to  whether  when  Venkaiahanaidu
was  admitted  in  Government  Hospital,  Guntur   he   was   conscious   or
unconscious. The observation   of  the  Trial  Court  that  there  being  no
evidence that PW.5 was unconscious and in the absence of evidence that  PW.5
was brought to the Hospital in unconscious state, the whole theory is to  be
 disbelieved, is wholly incorrect and  perverse  appreciation  of  evidence.
There being evidence of PW.5 and PW.23 that he was unconscious when  he  was
admitted in Government Hospital, Guntur and there is  no  contrary  evidence
on the record, the view of  the  Trial  Court  that  whole  theory  must  be
disbelieved is perverse and has rightly been reversed by the High Court.
23.   It is also relevant to notice that observation has been  made  by  the
Trial Court that IO, PW.23 ought to have been  taken  endorsement  from  the
Doctor that PW.5 was in unconscious state of mind  on  10.10.2003,  although
there is evidence  that  he  was  unconscious  on  10.10.2003  when  he  was
admitted in the Hospital, the mere fact that certificate  was  not  obtained
by IO from the Doctor is inconsequential. Furthermore, it is   well  settled
that even if IO has committed any error and has been negligent  in  carrying
out any investigation  or in the investigation there is  some  omission  and
defect, it is the legal obligation on the part of the Court to  examine  the
prosecution evidence de hors such lapses. In C.  Muniappan  and  others  vs.
State of Tamil Nadu, (2010) 9 SCC 567,  following  has  been  laid  down  in
paragraph 55:
“Where there has been negligence on the part of the investigating agency  or
omissions, etc. which resulted in defective investigation, there is a  legal
obligation on the part of the court  to  examine  the  prosecution  evidence
dehors such lapses, carefully, to find out  whether  the  said  evidence  is
reliable or not and to what extent it is reliable and  as  to  whether  such
lapses affected the object of finding out the truth.”

24.   The High Court has specifically considered the  evidence  of  PW.5  in
paragraphs 27 and 28 of the judgment. The High Court  has  rightly  observed
that the fact of sustaining injuries by this witness has not been denied  or
disputed nor it was suggested to him that he sustained those injuries  at  a
different  place  in  a  different  manner  in  the  hands  of  some   other
assailants.  The High Court observed that  some  lapses  on  behalf  of  the
investigation in examining the Doctor of the Government Hospital, Guntur  or
at Hitech Hospital cannot be taken as sole basis so as to doubt the case  of
the prosecution.  When  PW.5  was  unconscious,  the  delay  in  examination
cannot be said to be fatal to the case of the prosecution. The  High  Court,
thus, has correctly appreciated and relied on the evidence of PW.5 which  we
find fully in accordance with law.
25.   The injured witness PW.5 having given specific  role  of  the  persons
who caused injuries to  deceased Nos.1 and 2 which stands corroborated  with
the medical evidence, ignoring the evidence of PW.5 an  injured  witness  on
the grounds as noted above by the Trial Court is clearly  unsustainable  and
the High Court rightly after considering  all  aspects  of  the  matter  has
relied on the evidence of PW.5 for holding the accused guilty.
26.   We now come to the reasons given by the  Trial  Court  for  discarding
evidence of other eye-witnesses. With regard to PW.1, Trial Court says  that
he has admitted that in Ex.P1, the names of A12 to A19  were  not  mentioned
although he stated that he  gave  the  names  of  the  accused  when  Police
examined him. The  Trial  Court  observed  that  so  called  conspiracy  and
participation of  A12 to A19 is clouded with  doubt. Even  if,  A12  to  A19
have been acquitted, their acquittal  does  not  lead  the  Trial  Court  to
discard the prosecution case as given in Ex.P1 and supported by PW.1 in  his
oral evidence. We are, thus, of the view that there is no reason to  discard
the evidence of PW.1 who was  an  eye-witness.  PW.21  is  Sub-Inspector  of
Police who stated that he received phone call at about 5 p.m. on  10.10.2003
about the offence. He immediately rushed to the scene of offence and  learnt
that two injured persons were shifted to Ponnur Government Hospital  and  he
also noticed there a Hero Honda Passion. After posting guard  at  the  scene
of offence, SI proceeded to Government Hospital, Ponnur  where  he  came  to
know that Head Constable 690(PW.20) had already recorded the statement  from
the complainant. The statement of PW.1 was recorded at 6 p.m. as was  stated
by PW.23, IO in his deposition.  The  information  of  offence  having  been
received by  Police  within  one  hour  and  statements  of  witnesses  were
recorded by 6 p.m. in the presence of PW.1 at the Hospital corroborates  the
prosecution case of occurrence at 4 p.m. and  shifting  of  injured  to  the
Hospital immediately. The injured  Siva  Sankara  Rao  had  died  at  Ponnur
Hospital between 5.30 to 6 p.m., inquest report of  which was also  prepared
immediately. We are, thus, of the view that  the  Trial  Court  without  any
valid reason has discarded the evidence of PW.1 and the High Court  did  not
commit an error on placing reliance on PW.1  who  made  statement  and  gave
detail of entire incident in his statement and details of  the  accused  and
manner of carrying  out  the  assault  on  both  the  deceased  and  injured
witness.
27.   With regard to PW.2, the Trial Court  states  that  when  PW.21,  Sub-
Inspector went on the scene of offence, he did not find PW.2 present on  the
scene whereas PW.1 has informed that while taking the  second  deceased  and
PW.5 to Government Hospital, Ponnur, PW.2 was  asked  to  present  near  the
dead body of first  deceased.  The  statement  of  PW.2  being  recorded  at
Government Hospital, Ponnur his  presence  at  Ponnour  Hospital  cannot  be
discarded. We are of the view that only due to the reason that  he  was  not
found at the place of occurrence when PW.21 visited the spot does  not  lead
to the conclusion that his eye-witness account be discarded.
28.   The  Trial  Court  has  observed  that  prosecution  did  not  try  to
establish the fact that on 10.10.2003, i.e., on the date of  incident  these
witnesses and the deceased were required to be  present  before  the  Ponnur
Court. The Trial Court further stated that presence  of  some  witnesses  at
Ponnur Court was not necessary particularly Kalyani, PW.6  daughter  of  the
first deceased. It has come in the evidence that all the  persons  who  were
returning from Ponnur Court, presence of few of them was  not  necessary  at
Ponnur Court. It has come in the evidence  that  second  deceased  and  some
other who were returning on 10.10.2003 were under the conditional  bail  and
were to appear before the Court once in a week.  The  mere  fact  that  some
other persons were not required to be present in the Court also  went  along
with those who were to go to the Court is neither  unnatural  nor  uncommon.
In the accused accompanying by the other members of the family  while  going
to the Ponnur Court nothing is abnormal on the basis of  which  any  adverse
inference can be drawn by the Trial Court.
29.   One  of  the  submissions  raised  by  the  learned  counsel  for  the
appellants is that Doctor who appeared before the Court was  not  shown  the
weapon to give his opinion as to whether injuries  could  have  caused  with
such weapon or not. Learned counsel for the appellants relied  on  the  case
in Kartarey and others vs. State of U.P., 1976 AIR SC 76=(1976 (1)  SCC  172
para 26), wherein in paragraph 25 following has been stated:
“25………It is the duty of the prosecution, and no less of the  Court,  to  see
that the alleged weapon of the  offence,  if  available,  is  shown  to  the
medical witness and his opinion invited as to whether  all  or  any  of  the
injuries on the victim could be caused with that weapon. Failure  to  do  so
may, sometimes, cause aberration in the course of justice…..”

30.   In the present case Dr. N. Subba Rao, PW.17 appeared before the  Court
who had conducted the postmortem of Tirupati Rao. Doctor  in  his  statement
has stated that the injuries could be caused with battle  axes  and  knives.
PW.18 has conducted the postmortem of Siva Sankara  Rao.  PW.18  has  stated
that “injuries noted in my postmortem can be caused  by  axes,  battle  axes
and knives”.  The eye-witnesses in their  eye-witness  account  have  stated
that accused used axe, knives and sticks while attacking on  deceased  Nos.1
and 2.  The injuries noted in the postmortem of deceased  Nos.1  and  2  are
injuries which can be caused by axe, knives and sticks. Thus, there  was  no
inconsistency with medical evidence and the ocular evidence.  The  death  of
both deceased Nos.1 and  2  was  homicidal  in  nature.  A  perusal  of  the
statements of the PW.17 and 18, Doctors  who  conducted  the  postmortem  as
well as PW.16 who gave evidence on injuries of  PW.5,  indicates  that  they
were not shown the weapons by which injuries were caused. It  is  useful  to
refer to the external injuries noted by PW.17 on the dead body  of  Tirupati
Rao. In the statement of PW.17, he stated as follows:
      “On 11-10-2003 at about 3-1 p.m., I conducted postmortem on  the  dead
body of a male body by name Somarouthu  Tirupathirao,  first  deceased.  The
external appearance regormortis passed of External injuries:-
Cut injury of 11x2x1 cm., in oblique direction  over  the  left  ear  lobule
extending towards temporal region and downwards towards neck.



Cut injury 12x4 cm.,  bone  deep  on  left  parity  occipital  region.  Deep
dissection shows linear fracture of left parital bone.



Cut injury of 5x2 cm., scale deep on left front parital region.



Cut injury of 10x5 cm., skin deep on left thigh:



Cut injury of 20x2 cm., x2.5 cm.,  from  dorsum  of  right  forearm  to  the
dorsum of hand. Deep dissection shows both radius and ulna fractured.



Cut injury 8x5 cm., skin deep over upper 1/3rd of upper arm.



Cut injury of 8 cm., x 3x3 4 cm., encircling left shoulder  deep  dissection
shows displacement head of humorous posterior.



Cut injury of 7 cm., x 2 x 2 cm., on the back of left shoulder region.



A crushed inury on left leg 22 x 10 cm. bone  deep.  Deep  dissection  shows
both tibia and fibula fractured.



A cut injury of 8 cm.  x  3  cm.,     bone  deep  in  the  middle  of  right
thigh. Deep dissection shows of   right femur fracture at middle.



Cut injury of 10x2cm., skin       deep on left inter scapular       area  on
left of back of chest.



Cut injury of 10x2 cm., skin      deep on back of  chest  below       injury
no.11.



Cut injury of 10x2 cm., skin      deep on right side of back of    chest.



Stab injury of 6x2 cm., on  right  lumbar  region  and  deep      dissection
shows a lacerated      injury of 2x1 cm., over right    kidney  on  superior
lateral     region.



An abrasion injury 4 cm., size    on back of right thigh.”



31.   Looking to the injuries as noticed by PW.17, it is clear that the  cut
injuries as noticed above could be by axe and knife as  well  as  by  battle
axe as opined by the Doctor. The fact that  weapon  was  not  shown  to  the
Doctor nor in the cross-examination attention  of  the  Doctor  was  invited
towards the weapon, is not of much consequence in the facts of  the  present
case where there was clear medical evidence that injuries  could  be  caused
by knife, axe and battle axe. It is not the contention before  us  that  the
injuries as noted by the Doctors in the postmortem of deceased Nos.1  and  2
could not have been caused by knives and axes. The submission has also  been
raised that it was put to the Doctor that injuries by battle  axe  could  be
half moon, Doctor himself admitted in his report that he  has  not  reported
depth of the injury, middle of the injury nor margins of the  injuries  have
been noted. He has not  described  any  injury  as  the  half  moon.  Doctor
himself has admitted that he has not described the shapes of  the  injuries,
depth and middle of the injuries. The above medical evidence does  not  lead
to the conclusion that injuries as noticed by the  Doctors  could  not  have
been caused by axe, knives and battle axe. The eye-witnesses,  PW.1,2,3  and
5 have clearly mentioned about the weapons used by the  accused  which  eye-
witnesses accounts  are in accordance with medical evidence. Thus, mere non-
showing of the weapons to the Doctors at the time of  their  depositions  in
the Court is inconsequential and in no manner weakens the prosecution  case.
Some discrepancies referred by the Trial Court in  the  statements  of  eye-
witnesses were  inconsequential.  The  eye-witnesses  after  lapse  of  time
cannot give picture perfect report of the injuries caused  by  each  accused
and the minor inconsistencies were inconsequential. It is  useful  to  refer
to the judgment of  this  Court  in  Chandrappa  and  others  vs.  State  of
Karnataka, (2008) 11 SCC 328. In paragraphs 17 and 18 following was stated:
“17. It has been contended by the learned counsel for  the  appellants  that
the discrepancies between the statements of the eyewitnesses inter se  would
go to show that they had not seen the incident and no  reliance  could  thus
be placed on their testimony. It has been pointed out that their  statements
were discrepant as to the actual manner of assault and as  to  the  injuries
caused by each of the accused to the deceased  and  to  PW  3,  the  injured
eyewitness. We are  of  the  opinion  that  in  such  matters  it  would  be
unreasonable to expect a witness to give a picture  perfect  report  of  the
injuries caused by  each  accused  to  the  deceased  or  the  injured  more
particularly where it has been proved on record that the injuries  had  been
caused by several accused armed with different kinds of weapons.

18. We also find that with the passage of time the memory of  an  eyewitness
tends to dim and it is perhaps difficult for  a  witness  to  recall  events
with precision. We have gone through the record and find that  the  evidence
had been recorded more than five years after the incident and if the  memory
had partly failed the eyewitnesses and if they had not been able to give  an
exact description of the injuries, it would not detract from the  substratum
of their evidence. It is however very significant that PW 2  is  the  sister
of the four appellants, the  deceased  and  PW  3  Devendrappa  and  in  the
dispute between the brothers she had continued to  reside  with  her  father
Navilapa who was residing with the  appellants,  but  she  has  nevertheless
still supported the prosecution. We  are  of  the  opinion  that  in  normal
circumstances she would not have given evidence against the  appellants  but
she has come forth as an eyewitness and supported  the  prosecution  in  all
material particulars.”


32.   Learned counsel for the appellants has also  placed  reliance  on  the
judgment of  this Court in Eknath  Ganpat  Aher  and  others  vs.  State  of
Maharasthra and others, (2010) 6 SCC 519.  In support  of  the  case  it  is
mentioned that in the case of group  rivalries  and  enmities,  there  is  a
general  tendency  to  rope  in  as  many  persons  as  possible  as  having
participated in the assault. There  cannot  be  any  dispute  to  the  above
proposition laid down in paragraph  26  of  the  judgment  which  is  quoted
below:
“26. It is an accepted proposition that in the case of group  rivalries  and
enmities, there is a  general  tendency  to  rope  in  as  many  persons  as
possible as having participated in the  assault.  In  such  situations,  the
courts are called upon to be very cautious and sift the evidence with  care.
Where after a close scrutiny of the evidence, a reasonable doubt  arises  in
the mind of the court with regard to the participation of any of  those  who
have been roped in, the court would be obliged to give the benefit of  doubt
to them.”

33.   However, when there are eye-witnesses including  injured  witness  who
fully support the  prosecution  case  and  proved  the  roles  of  different
accused,  prosecution case cannot be negated only on the ground that it  was
a case of group rivalry. Group rivalry is double edged sword.
34.   Learned counsel lastly contended that there  are  limitations  in  the
appellate power while exercising it as against an  order  of  acquittal.  He
has relied on the judgment of this Court in  Dhanpal  vs.  State  by  Public
Prosecutor, Madras, (2009) 10 SCC 401.  In  paragraphs  21,  22  39  and  41
following has been stated:

“21. On proper evaluation of the Trial Court  judgment,  we  hold  that  the
view taken by the Trial Court was certainly a possible or a plausible  view.
It is a well-settled legal position that when the view which has been  taken
by the Trial Court is a possible view, then  the  acquittal  cannot  be  set
aside by  merely  substituting  its  reasons  by  the  High  Court.  In  our
considered view, the impugned judgment of the High Court is contrary to  the
settled legal position and deserves to be set aside.

22. The earliest case which dealt with the controversy in  issue  at  length
is of Sheo Swarup v. King Emperor. In this case, the ambit,  scope  and  the
powers of the appellate court in dealing with an  appeal  against  acquittal
have been comprehensively dealt with by  the  Privy  Council.  Lord  Russell
writing the judgment has observed as under: (IA at p. 404):
“…  the  High  Court  should  and  will  always  give  proper   weight   and
consideration to such matters as (1) the views of the trial Judge as to  the
credibility of the witnesses; (2) the presumption of innocence in favour  of
the accused, a presumption certainly not weakened by the fact  that  he  has
been acquitted at his trial; (3) the right of the accused to the benefit  of
any doubt; and (4) the slowness  of  an  appellate  court  in  disturbing  a
finding of fact arrived at by a Judge who had the advantage  of  seeing  the
witnesses.”

The law succinctly crystallised in this case has been consistently  followed
in subsequent judgments by this Court.

39. The following principles emerge from the cases above:
1. The accused is presumed to be innocent until proven guilty.  The  accused
possessed this presumption when he was before the  Trial  Court.  The  Trial
Court’s acquittal bolsters the presumption that he is innocent.
2. The power of reviewing evidence is  wide  and  the  appellate  court  can
reappreciate the entire evidence on record. It can review the Trial  Court’s
conclusion with respect to both facts and law, but the appellate court  must
give due weight and consideration to the decision of the Trial Court.
3. The appellate court should always keep in mind that the Trial  Court  had
the distinct advantage of watching  the  demeanour  of  the  witnesses.  The
Trial Court is in a better position  to  evaluate  the  credibility  of  the
witnesses.
4. The appellate court may only overrule  or  otherwise  disturb  the  Trial
Court’s acquittal if it has “very substantial and  compelling  reasons”  for
doing so.
5. If two reasonable or possible views can  be  reached—one  that  leads  to
acquittal, the other to conviction—the  High  Courts/appellate  courts  must
rule in favour of the accused.

41. The settled legal position as explained  above  is  that  if  the  Trial
Court’s view is possible or plausible, the High Court should not  substitute
the same by its own possible view. In the facts and  circumstances  of  this
case, the  High  Court  in  the  impugned  judgment  was  not  justified  in
interfering with the well-reasoned judgment and order of  the  Trial  Court.
Consequently, this appeal filed by the appellant is allowed and disposed  of
and the impugned judgment of the High Court is set aside.”

35.   In State of U.P vs. Anil Singh, (1988)( Supp).  SCC  686,  this  Court
has  held  that  although  when  two  views  are  reasonably  possible,  one
indicating conviction and other acquittal, this  Court  will  not  interfere
with the order of acquittal but Court shall never hesitate to  interfere  if
the acquittal is perverse in the sense that no reasonable person would  have
come to that conclusion, or  if  the  acquittal  is  manifestly  illegal  or
grossly unjust. In paragraph 14 of the judgment following has been stated:
“14. The  scope  of  appeals  under  Article  136  of  the  Constitution  is
undisputedly very much limited. This Court does not exercise its  overriding
powers under Article 136  to  reweigh  the  evidence.  The  court  does  not
disturb the concurrent finding of facts reached  upon  proper  appreciation.
Even if two views are reasonably possible,  one  indicating  conviction  and
other acquittal, this Court will not interfere with the order  of  acquittal
(See:  State  of  U.P.  v.  Jashoda  Nandan  Gupta;  State  of  A.P.  v.  P.
Anjaneyulu.) But this Court will not hesitate to interfere if the  acquittal
is perverse in the sense that no reasonable person would have come  to  that
conclusion, or if the acquittal is manifestly illegal or grossly unjust.”

36.   Present is a case where the High Court exercised its  appellate  power
under Section 386 Cr.P.C. In exercise of Appellate power under  Section  386
Cr.P.C. the High Court has full power to reverse an order of  acquittal  and
if the accused are found guilty they can be sentenced according to law.

37.    Present  is  a  case   where   reasoning   of  the  Trial   Court  in
discarding  the  evidence of  injured   witness   and  other   eye-witnesses
have  been found perverse. The High Court, thus,  in  our  opinion  did  not
commit any error in reversing the  order  of  acquittal  and  convicted  the
accused. From the eye-witnesses  account,  as  noticed  above  and  for  the
reasons given by the  High Court in its judgment,
we are of the view that High Court is correct in setting aside the order  of
acquittal and convicting the accused.
38.   There is no merit in these appeals. Both the appeals are dismissed.

                                                     .....................J.
                                             ( A. K. SIKRI )



                                                     .....................J.
                                          ( ASHOK BHUSHAN )

New Delhi,
April 13, 2017.





Friday, April 21, 2017

Order 39 Rules 1 and 2 read with Section 151 of the Code of Civil Procedure, 1908(hereinafter referred to as “the Code”) and sought temporary injunction against the defendants (appellant, respondent Nos. 2 and 3) restraining them from interfering in respondent No. 1’s possession over the suit property etc.= TRAIL COURT GRANTED STATUS QUO - The High Court, by impugned judgment, dismissed the appeals filed by defendant Nos. 1 and 2 whereas allowed in part the appeal filed by the plaintiff and accordingly modified the order of the Trial Court to the effect that the special officer be appointed to take possession of the suit property which would remain in his possession till the disposal of the Suit. It was also directed that this direction would be subject to the result of the Civil Suit.-The High Court then also invoked powers under Section 340 of the Code of Criminal Procedure, 1973 (in short, “Cr.P.C.) and directed the Registrar General of the High Court to lodge a complaint against the appellant and respondent No. 2 for their prosecution for having allegedly committed offence punishable under Section 196 of the Indian Penal Code, 1860 by fabricating some documents filed by them in the suit to secure the orders in their favour. -On 05.12.2005, this Court issued notice to the respondents only qua direction given by the High Court to the Registrar General of the High Court to lodge a complaint under Section 340 of the Crl.P.C. During the pendency of the S.L.P., this Court stayed the implementation of the impugned directions. In other words, this Court dismissed the special leave petition insofar as it relates to the main controversy decided by the High Court in relation to the grant of injunction and confined this appeal to examine the legality and correctness of the impugned directions quoted supra. -Needless to say, the Trial Court would decide the suit uninfluenced by any of the findings recorded and observations made by the Trial Court in its order dated 06.04.2005 and also by the High Court in the impugned order.

                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.5655 OF 2007


Ayan Chatterjee                    ….Appellant(s)

                                   VERSUS

Future Technology Foundation
Inc. & Ors.                          …Respondent(s)



                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    This appeal is filed by defendant No.2 against the final judgment  and
order dated 21.07.2005 passed by the High Court of Calcutta in F.M.A.T.  No.
1335 of 2005 whereby the High  Court  dismissed  the  appeal  filed  by  the
appellant herein against the order dated  06.04.2005  passed  by  the  Civil
Judge(Sr.Div.), IXth Court at Alipore in T.S. No.3 of 2005.
2)    We need not burden the order  by  setting  out  the  facts  in  detail
except to the extent necessary to appreciate the short controversy  involved
in the appeal.
3)    The appellant is defendant  No.2  whereas  respondent  No.  1  is  the
plaintiff, respondent No. 2 is defendant No.  1  and  respondent  No.  3  is
defendant No. 3 in the Civil Suit out of which this appeal arises.
4)    Respondent No. 1 has filed a Civil Suit being  Title  Suit  No.  3  of
2005 in the Court of IXth Civil Judge  (Senior  Division),  Alipore  against
the appellant and respondent Nos. 2 and 3. The suit  is  for  a  declaration
that respondent No. 1 was and continues to be a tenant under respondent  No.
2 in relation to the suit property.  Respondent No. 1 has  also  prayed  for
grant  of  permanent  injunction  restraining  respondent  No.  2  and   the
appellant, their servants and the  agents  from  interfering  with  peaceful
possession of respondent No. 1 in the suit property.  A  further  prayer  is
made that the appellant be also restrained from operating the  Bank  Account
of  respondent  No.  1  bearing  current  account  No.0029-136274-050   with
respondent No. 3.
5)    During the pendency of  the  suit,  respondent  No.  1,  in  order  to
protect their rights, which are subject matter of the civil suit,  filed  an
application under Order 39 Rules 1 and 2 read with Section 151 of  the  Code
of Civil Procedure, 1908(hereinafter referred to as “the Code”)  and  sought
temporary injunction against the defendants (appellant,  respondent  Nos.  2
and 3) restraining them from interfering in respondent  No.  1’s  possession
over the suit property etc.
6)    Respondent No. 2 and the appellant, who were the contesting  defendant
Nos. 1 and 2 respectively filed their  reply  and  opposed  the  prayer  for
grant of temporary injunction made by respondent No.1.
7)    The Trial Court, by order  dated  6.4.2005,  while  disposing  of  the
injunction application directed the parties to maintain status-quo over  the
suit property. It recorded a finding  that  the  plaintiff  is  prima  facie
found to be in possession of the suit property  and  that  defendant  No.  2
could not prove his possession prima facie over the suit property.
8)    Felt aggrieved, defendant Nos. 1 and 2 filed  separate  Misc.  Appeals
before the High Court whereas the plaintiff also filed Misc. Appeal  against
the aforesaid order of  the  Trial  Court.   The  High  Court,  by  impugned
judgment, dismissed the appeals filed by defendant  Nos.  1  and  2  whereas
allowed in part the appeal filed by the plaintiff and  accordingly  modified
the order of the Trial Court to the  effect  that  the  special  officer  be
appointed to take possession of the suit property which would remain in  his
possession till the disposal of the Suit. It was  also  directed  that  this
direction would be subject to the result of the Civil Suit.
9)    While disposing of the three appeals, the  High  Court  also  directed
the Trial Court to decide the Civil Suit on or before 31.12.2005 on  merits.
 The High Court then also invoked powers under Section 340 of  the  Code  of
Criminal Procedure, 1973 (in short, “Cr.P.C.)  and  directed  the  Registrar
General of the High Court to lodge a complaint  against  the  appellant  and
respondent No. 2  for  their  prosecution  for  having  allegedly  committed
offence punishable under Section 196 of  the  Indian  Penal  Code,  1860  by
fabricating some documents filed by them in the suit to  secure  the  orders
in their favour. The directions read as under:
       “After careful scrutiny of the Xerox copies  of  the  two  agreements
and the receipt granted by defendant No.1 in favour of  the  defendant  no.2
for Rs.72000/-, we are prima facie convinced that those are fabricated  ones
and were relied upon by the  defendant  nos.1  and  2  with  the  object  of
defrauding the Court with an eye to obtain favourable order in their  favour
and as such, they have prima facie committed an offence  under  Section  196
of the Indian Penal Code; it is, therefore, expedient  in  the  interest  of
justice that an enquiry should be made to ascertain whether those  documents
included in the paper book between pages 107 and 123 are  really  fabricated
ones.  We accordingly in exercise of our power conferred under  Section  340
of the Code of Criminal Procedure direct the learned  Registrar  General  of
this Court to lodge a complaint before the  appropriate  court  against  the
defendant nos. 1 and 2 alleging offence under  Section  196  of  the  Indian
Penal Code on the aforesaid facts.”
10)   Felt aggrieved, defendant No. 2  has  filed  this  appeal  by  way  of
special leave before this Court.
11)   On 05.12.2005,  this Court issued notice to the respondents  only  qua
direction given by the High Court to  the  Registrar  General  of  the  High
Court to lodge a complaint under Section 340  of  the  Crl.P.C.  During  the
pendency of  the  S.L.P.,  this  Court  stayed  the  implementation  of  the
impugned directions. In other words, this Court dismissed the special  leave
petition insofar as it relates to the main controversy decided by  the  High
Court in relation to the grant of injunction and  confined  this  appeal  to
examine the legality and  correctness  of  the  impugned  directions  quoted
supra.
12)   Even on second call, none appeared for  the  appellant.   Mr.  D.N.Ray
appeared for respondent No. 1.
13)   In the interest of justice, we permitted the appellant to  submit  the
written submissions within three days. The appellant has filed  the  written
submissions.
14)   Having perused the record of the case, the written  submissions  filed
by the appellant and on hearing  the  submissions  of  learned  counsel  for
respondent  No.  1,  we  are  inclined  to  dispose  of  the   appeal   with
observations made infra.
15)   In our considered opinion, having regard to the nature of  controversy
involved in the pending Civil Suit and the one which has  traveled  to  this
Court out of interlocutory proceedings, it would be in the interest  of  all
the parties that the Civil Suit out of which this appeal  arises  itself  is
disposed of on its merits in accordance with law uninfluenced by any of  the
observations made by the Trial Court and the High Court while  deciding  the
injunction application which is the subject matter of this appeal.
16)    In our considered view, even otherwise, the findings  recorded  while
deciding interlocutory proceedings such as the one in this case  (injunction
proceedings) are prima facie in nature and their effect remains confined  to
the disposal of the interlocutory proceedings only. Such  findings,  in  our
view, do not, in any manner, affect and come in the way of disposal  of  the
Civil Suit on merits which is decided on the  basis  of  the  pleadings  and
evidence adduced by the parties in the suit.
17)   It is for this reason, we are of the view that since the  parties  are
yet to adduce the evidence on merits in support of  their  respective  stand
taken in the pleadings in the Civil Suit, it would be  in  the  interest  of
all the parties concerned, that they  adduce  evidence  so  that  the  Trial
Court is able to decide the Civil Suit on merits  in  accordance  with  law.
Needless to say, the Trial Court would decide the suit uninfluenced  by  any
of the findings recorded and observations made by the  Trial  Court  in  its
order dated 06.04.2005 and also by the High Court in the impugned order.
18)   Depending upon the outcome of the  suit,  appropriate  directions,  as
the case may be, can always be given including the one  given  by  the  High
Court, if occasion so arises and if need be. We, therefore, at  this  stage,
refrain from making any observation in the order.
19)   Let the Civil Suit be decided by the Trial Court, as  directed  above,
within one year as an outer limit strictly  in  accordance  with  law.  Till
then, the interim order dated 05.12.2005  of  this  Court  would  remain  in
operation so also the impugned order passed by the  High  Court  which  this
Court has  affirmed  in  relation  to  the  grant  of  injunction  regarding
preservation of suit property.
20)    Parties to appear before the Trial Court on  02.05.2017  and  produce
the copy of this order to enable the Trial Court to proceed with  the  trial
of the suit.     Since none had  appeared  for  the  appellant  before  this
Court for prosecuting the appeal, the Trial Court shall issue notice to  all
the parties (if nobody appears on 02.05.2017 on behalf of  the  parties)  in
the suit for their appearance on the date to be fixed  by  the  Trial  Court
for proceedings further in the trial, as directed above.
21)   In  view  of  foregoing  discussion,  the  appeal  stands  accordingly
disposed of.
                        ……...................................J.
                                  [R.K. AGRAWAL]

…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April 18, 2017
-----------------------
10


ADOPTION NOT PROVED - ADVERSE POSSESSION NOT PLEADED - LIABLE TO BE EVICTED =Non admission of title of plaintiff - failure to prove adoption and title - No plea of adverse possession property set up - It is a settled principle of law of adverse possession that the person, who claims title over the property on the strength of adverse possession and thereby wants the Court to divest the true owner of his ownership rights over such property, is required to prove his case only against the true owner of the property. It is equally well-settled that such person must necessarily first admit the ownership of the true owner over the property to the knowledge of the true owner and secondly, the true owner has to be made a party to the suit to enable the Court to decide the plea of adverse possession between the two rival claimants.- It is only thereafter and subject to proving other material conditions with the aid of adequate evidence on the issue of actual, peaceful, and uninterrupted continuous possession of the person over the suit property for more than 12 years to the exclusion of true owner with the element of hostility in asserting the rights of ownership to the knowledge of the true owner, a case of adverse possession can be held to be made out which, in turn, results in depriving the true owner of his ownership rights in the property and vests ownership rights of the property in the person who claims it. In this case, we find that the defendant did not admit the plaintiff's ownership over the suit land and, therefore, the issue of adverse possession, in our opinion, could not have been tried successfully at the instance of the defendant as against the plaintiff. That apart, the defendant having claimed the ownership over the suit land by inheritance as an adopted son of Rustum and having failed to prove this ground, he was not entitled to claim the title by adverse possession against the plaintiff. In the light of this settled legal position, the plea taken by the defendant about the adoption for proving his ownership over the suit land as an heir of Rustum was rightly held against him. Fifth, the defendant having failed to prove that he was the adopted son of Rustum, had no option but to suffer the decree of dispossession from the suit land. It is a settled principle of Mohammadan Law that Mohammadan Law does not recognize adoption (see-Section 347 of Mulla Principles of Mahomedan Law, 20th Edition page 430).


                                                                  Reportable

                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                         CIVIL APPEAL No.83 OF 2008


Dagadabai(Dead) by L.Rs.                 ….Appellant(s)

                                   VERSUS

Abbas @ Gulab Rustum
Pinjari                             …Respondent(s)



                               J U D G M E N T
Abhay Manohar Sapre, J.
1)    This appeal is filed by the legal  representatives  of  the  plaintiff
against the final judgment and order dated 25.04.2007  passed  by  the  High
Court of Judicature of Bombay, Bench at Aurangabad in Second  Appeal  No.333
of 1990 whereby  the  Single  Judge  of  the  High  Court  while  exercising
jurisdiction under  Section  100  of  the  Code  of  Civil  Procedure,  1908
(hereinafter referred to as “the Code”) reversed the concurrent findings  of
fact arrived at by the two Courts  below  and  dismissed  the  suit  of  the
plaintiff-appellant herein.
2)    We need not burden the order  by  setting  out  the  facts  in  detail
except to the extent necessary to appreciate the short controversy  involved
in the appeal.
3)     The  appellants  are  the  legal  representatives  of  the   original
plaintiff whereas the respondent is the defendant.
4)    The dispute in this appeal relates to  an  agricultural  land  bearing
G.No. 505 (old Sy. No 71) admeasuring 5 Hectare 28 R.  situated  at  village
Vardi, Taluka Chopda, District Jalgao  (MH)  (hereinafter  referred  to  as,
“the suit land".
5)    One Rustum s/o Nathu Pinjari - a Muslim by religion was the  owner  of
the  suit  land.  He  died  intestate  leaving  behind  his  only  daughter-
Dagadabai, w/o Shaikhlal Pinjari. She, as  an  heir,  accordingly  inherited
the suit land exclusively on the death of her father- Rustum.
6)    Dagadabai then filed a Civil Suit, out of which  this  appeal  arises,
against the respondent claiming therein a decree for possession in  relation
to the suit land.  The plaintiff alleged that she is the owner of  the  suit
land whereas the defendant is  in  unlawful  possession  of  the  suit  land
without any right, title and interest therein and, therefore, he  is  to  be
dispossessed from the suit land.  The  plaintiff,  therefore,  as  mentioned
above sought a decree for possession on the strength of  her  title  against
the respondent.
7)    The respondent filed his written statement. He denied the  appellant’s
claim. In the first place, claiming himself to be the adopted  son  of  Late
Rustum, the respondent contended that he became the owner of the  suit  land
by inheritance as an adopted son of Rustum. In the second place,  he  denied
the ownership of the plaintiff in the  suit  land  and  set  up  a  plea  of
adverse  possession  to  claim  his  ownership  over  the  suit  land.   The
respondent contended that he has been in long and continuous  possession  of
the suit land for more than 12 years prior to the  date  of  filing  of  the
suit on the basis  of  mutation  entries  made  in  the  revenue  record  in
relation to the suit land.  It was alleged that he acquired title  over  the
suit land on the strength of his continuous possession which,  according  to
him, was adverse.  It is essentially on these two defenses,  the  respondent
denied the plaintiff's case and defended his possession over the suit  land.

8)    The Trial Court framed issues and the parties  adduced  evidence.  The
Trial Court, by judgment/decree dated 29.08.1983 in Civil Suit  No.  108  of
1981  decreed  the  appellant's  suit.  It  was  held  that  the   appellant
(plaintiff) is the owner of the suit land; defendant  failed  to  prove  his
adoption; there is no concept of adoption in Muslims and hence  there  could
be no valid adoption of the respondent by Rustam and nor  such  adoption  is
recognized in Mohammadan Law; the defendant has failed to  prove  his  title
over the suit land on the basis of his  alleged  possession  over  the  suit
land; the defendant is, therefore, in illegal  and  unauthorized  possession
of the suit land for want of any right, title and interest and hence  liable
to be dispossessed from the suit land.
9)     Felt  aggrieved,  the  defendant  filed  first  appeal   before   the
Additional District Judge, Amalner. Vide order  dated  18.09.1990  in  Civil
Appeal No.43 of 1989.  The first appellate Court affirmed the  judgment  and
decree of the Trial Court and dismissed the appeal.
10)   Felt aggrieved, the defendant carried  the  matter  in  Second  Appeal
before the High Court. The High Court admitted the appeal on  the  following
substantial question of law:
“Whether  in  the  facts  and  circumstances  of  the  present   case,   the
defendant(appellant herein) perfected his title to the suit land on  account
of adverse possession and the alternative plea ought to  have  been  allowed
by the Courts below, particularly, when there were  disputes  regarding  the
mutation proceedings after the death of Rustum Pinjari and the intention  of
the defendant to get his name mutated was writ large  to  show  his  hostile
attitude.”

11)   By impugned order, the learned Single Judge of the High Court  allowed
the appeal and while setting aside the judgment/decree  of  the  two  courts
below dismissed the suit giving rise to filing of  this  appeal  by  special
leave by the plaintiff before this Court. The leave was granted.
12)   Heard Mr. Anshuman Animesh, learned counsel  for  the  appellants  and
Mr. Nishant Ramakantrao Katneshwarkar, learned counsel for the respondent.
13)   Having heard the learned counsel for the parties  and  on  perusal  of
the record of the case, we are  inclined  to  allow  the  appeal  and  while
setting aside of the impugned order restore that of the Trial Court and  the
first Appellate Court.
14)   In our considered opinion, the  High  Court  erred  in  admitting  the
second appeal in the first instance and then further erred  in  allowing  it
by answering the question framed in defendant’s  favour.  This  we  say  for
more than one reason as detailed below.
15)    First,  when  the  Trial  Court  and  the   First   Appellate   Court
concurrently decreed the plaintiff's suit by recording all the  findings  of
facts against the defendant enumerated above, then,  in  our  opinion,  such
findings of facts were binding on the High Court.
16)   It is also for additional  reasons  that  the  findings  were  neither
against the pleadings nor evidence and nor against any  provisions  of  law.
They were also not perverse on facts to the extent that no average  judicial
person could ever record. In this  view  of  the  matter,   we  are  of  the
opinion that the second appeal did not involve  any  question  of  law  much
less substantial question of law within the meaning of Section  100  of  the
Code to enable the High Court to admit the appeal on any such question  much
less answer it in favour of the defendant.
17)   Second, the question which was formulated by the High  Court  did  not
involve any question of law much less substantial  question  of  law  within
the meaning of Section 100 of the Code requiring interference in  the  first
Appellate Court’s judgment.
18)   Third, the plea of adverse possession being essentially a  plea  based
on facts, it was required to be proved by the party raising it on the  basis
of proper pleadings and  evidence.  The  burden  to  prove  such  plea  was,
therefore, on the defendant who had raised it. It was, therefore,  necessary
for him to have discharged the burden that laid on him  in  accordance  with
law.
19)   When both the Courts below held and, in our  view,  rightly  that  the
defendant has failed to prove the plea of adverse possession in relation  to
the suit land then such concurrent findings of fact  was  unimpeachable  and
binding on the High Court.
20)   Fourth, the High Court erred fundamentally  in  observing  in  Para  7
that, "it  was  not  necessary  for  him  (defendant)  to  first  admit  the
ownership of the plaintiff before raising such a plea".
21)   In our considered opinion, these observations of the  High  Court  are
against the law of adverse possession. It is a settled principle of  law  of
adverse possession that the person, who claims title over  the  property  on
the strength of adverse possession and thereby wants  the  Court  to  divest
the true owner of his ownership rights over such property,  is  required  to
prove his case only against the true owner of the property.  It  is  equally
well-settled that such person must necessarily first admit the ownership  of
the true owner over the property to the knowledge  of  the  true  owner  and
secondly, the true owner has to be made a party to the suit  to  enable  the
Court to decide the  plea  of  adverse  possession  between  the  two  rival
claimants.
22)    It  is  only  thereafter  and  subject  to  proving  other   material
conditions with the aid  of  adequate  evidence  on  the  issue  of  actual,
peaceful, and uninterrupted continuous possession of  the  person  over  the
suit property for more than 12 years to the exclusion  of  true  owner  with
the element of hostility  in  asserting  the  rights  of  ownership  to  the
knowledge of the true owner, a case of adverse possession can be held to  be
made out which, in  turn,  results  in  depriving  the  true  owner  of  his
ownership rights in the property and vests ownership rights of the  property
in the person who claims it.
23)    In  this  case,  we  find  that  the  defendant  did  not  admit  the
plaintiff's ownership over the  suit  land  and,  therefore,  the  issue  of
adverse possession, in our opinion, could not have been  tried  successfully
at the instance of the defendant as against the plaintiff. That  apart,  the
defendant having claimed the ownership over the suit land by inheritance  as
an adopted son of Rustum and having failed to prove this ground, he was  not
entitled to claim the title by adverse possession against the plaintiff.
24)   In the light of this settled legal position, the  plea  taken  by  the
defendant about the adoption for proving his ownership over  the  suit  land
as an heir of Rustum was rightly held against him.
25)   Fifth, the defendant having failed to prove that he  was  the  adopted
son of Rustum, had no option but to suffer the decree of dispossession  from
the suit land. It is a settled principle of Mohammadan Law  that  Mohammadan
Law does not recognize adoption (see-Section  347  of  Mulla  Principles  of
Mahomedan Law, 20th Edition page 430).
26)   It is for the aforementioned reasons, the impugned  judgment  is  held
legally unsustainable and hence deserves to be set aside.
 27)   The  appeal  thus  succeeds  and  is  accordingly  allowed.  Impugned
judgment is set aside and that of the Trial Court and  the  first  Appellate
Court is restored.

………...................................J.
                              [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April 18, 2017
-----------------------
12


Was it a suit for grant of permanent injunction simpliciter or a suit to seek a declaration of title with consequential relief of grant of permanent injunction in relation to the suit land? - The issue, in our view, was required to be examined by the High Court keeping in view the law laid down by this Court in the case of Anathula Sudhakar vs. P. Buchi Reddy(Dead) by L.Rs. & Ors., 2008(4) SCC 594. It was, however, not done.-The suit being one for perpetual injunction, whether investigation into the question of title was necessary or called for? - Whether, in view of the evidence, including the Commissioner’s report, the Appellate Court was justified in coming to the conclusion that the appellants had no possession?”

                          Reportable

                        IN THE SUPREME COURT OF INDIA

                        CIVIL APPELLATE JURISDICTION

                        CIVIL APPEAL No.5459 OF 2007


Velayudhan & Ors.                        ….Appellant(s)

                                   VERSUS

Mohammedkutty & Ors.                 …Respondent(s)



                               J U D G M E N T

Abhay Manohar Sapre, J.
1)    This appeal is filed by the defendants against the final judgment  and
order dated 08.03.2006 passed by the High Court of Kerala in S.A.  No.180  &
475/1992 whereby the High Court allowed the  second  appeals  filed  by  the
plaintiffs-respondents herein and set aside the judgment  and  decree  dated
26.07.1991 of the Subordinate Judge, Tirur in A.S. Nos. 83 & 84 of 1988  and
restored the judgment dated 30.09.1988 of the Munsif  of  Parappanangadi  in
O.S. No. 177 of 1983.
2)    We need not burden our judgment by  mentioning  the  facts  in  detail
except to the extent necessary to  appreciate  the  issue  involved  in  the
appeal.
3)    The appellants herein are the defendants whereas the  respondents  are
the plaintiffs in a suit out of which this appeal arises.
4)    The respondents filed a civil suit in relation to  the  suit  land  as
described in detail in schedule to the plaint against the appellants  before
the Munsif of Parappanangadi. The  Munsif  Court  decreed  the  respondents’
suit against  the  appellants  and  passed  the  decree  as  prayed  by  the
plaintiffs.
5)    The defendants, felt aggrieved, filed the  first  appeals  before  the
Subordinate Judge Tirur. The first appellate Court allowed the  appeals  and
dismissed the suit. The respondents, felt aggrieved,  filed  Second  Appeals
under Section 100 of Code of Civil Procedure, 1908 (hereinafter referred  to
as “the Code”). The High Court admitted the appeals  on  the  following  two
substantial questions of law:
“1.  The suit being one  for  perpetual  injunction,  whether  investigation
into the question of title was necessary or called for?

2.  Whether, in view of the evidence, including the  Commissioner’s  report,
the Appellate Court was justified in  coming  to  the  conclusion  that  the
appellants had no possession?”

 6)   By impugned order, the  High  Court  allowed  the  appeals  and  while
reversing the judgment and decree of  the  first  appellate  Court  restored
that of the Trial Court, which had decreed  the  respondents’  suit.  It  is
against this order of the High Court,  the  defendants  felt  aggrieved  and
filed this appeal by way of special leave before this Court.
7)    Heard Mr. M.K.S. Menon, learned counsel for the appellants and Mr.  K.
Rajeev, learned counsel for the respondents.
8)    Having heard learned counsel for the parties and  on  perusal  of  the
record of the case, we are inclined to allow the appeal in  part  and  while
setting aside of the impugned order consider it just and proper and  in  the
interest of all parties concerned to remand the case to the High  Court  for
deciding the plaintiffs’ Second Appeals afresh on merits  by  reframing  the
fresh substantial questions of law.
9)    In our considered opinion, the need to remand the  case  to  the  High
Court for deciding the Second Appeals afresh  has  arisen  because  we  find
that the High Court proceeded on the assumption that the  Civil  Suit  filed
by the respondents out of which this appeal arises is essentially for  grant
of permanent injunction simpliciter.  It  would  be  clear  from  the  first
substantial question of law framed by the High Court quoted supra.
10)   One of the questions, which fell for consideration  before  the  first
and second appellate Court was regarding the nature of  the  Suit  filed  by
the respondents and the reliefs claimed therein.
11)   Was it a suit for grant of permanent injunction simpliciter or a  suit
to seek a declaration  of  title  with  consequential  relief  of  grant  of
permanent injunction in relation to the suit land?
12)   On perusal of the plaint, we find that the plaintiffs  asked  for  the
following reliefs:
“A.   Issue an order of injunction preventing defendants or their  men  from
entering into or taking any usufructs from the plaint schedule  property  or
from  doing  anything  detrimental  to  the  title  and  possession  of  the
plaintiffs.

B.    Direct the defendants to pay all costs in the suit.

Such other or further orders be passed in the suit.”

13)   Reading the expression "or from  doing  anything  detrimental  to  the
title and possession of the plaintiffs" in  prayer  clause  A  quoted  above
would show that the plaintiffs have also expressed apprehension in  relation
to their title over the suit properties.
14)   Keeping in view the averments made in Para 1 of the plaint  read  with
aforementioned words of the prayer clause,  we  are  of  the  view  that  it
cannot be said that the Suit is  only  for  grant  of  permanent  injunction
simpliciter. In other words, the issue  of  title  having  surfaced  in  the
relief clause, the same is of some  significance  over  the  rights  of  the
parties while considering the grant of the reliefs.
15)   In our considered opinion, the reading of the plaint  as  a  whole  in
the context of the reliefs claimed therein would go to show that  the  issue
of title is not wholly foreign to the  controversy  and  is  relevant  while
considering the grant of permanent injunction.
16)   It is true that the relief clause in the plaint is not happily  worded
but, as observed supra, reading the plaint as  a  whole  along  with  relief
clause does support our observations.
17)   Since the High Court proceeded to decide the appeals in the  light  of
first substantial question of law and  hence  it  committed  an  error.  The
first error was in  framing  the  wrong  question  and  the  second  was  in
proceeding to examine the said question.
18)   The issue, in our view, was required to be examined by the High  Court
keeping in view the law laid down by this Court  in  the  case  of  Anathula
Sudhakar vs. P. Buchi Reddy(Dead) by L.Rs. &  Ors.,  2008(4)  SCC  594.   It
was, however, not done.
19)   It is due to the aforesaid reasons, we are of  the  view  that  matter
needs a fresh look by the High Court on the questions  which  arise  in  the
case.
20)   In the light of foregoing discussion, we allow  the  appeal  in  part,
set aside the impugned judgment and remand the case to  the  High  Court  to
decide the appeal afresh after reframing the  proper  substantial  questions
of law keeping in view the pleadings and the  findings  of  the  two  Courts
below as required under Section 100 of the Code.
21)   Since the appeal is quite old, we request the  High  Court  to  decide
the appeal expeditiously.


………...................................J.
                                  [R.K. AGRAWAL]


…...……..................................J.
                                [ABHAY MANOHAR SAPRE]
      New Delhi;
April 18, 2017
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