whether an intra-Court Letters Patent Appeal under clause 15 of the Letters Patent of High Court at Calcutta can be maintained against an order passed by the Single Judge on an application for condonation of delay filed along with the petition (for setting aside an Arbitration Award) under Section 34 of the Arbitration and Conciliation Act, 1996 (hereinafter referred to as ‘the Act’)?= No appeal is provided against an order passed by the Court of competent jurisdiction condoning the delay in filing the petition under Section 34 of the Act as such. - While parting, we may take note of the order dated 7th November, 2016 passed by this Court directing the Appellant to deposit Rs. 5,00,00,000/- (Rupees Five Crores) in the Registry of this Court and further to invest the same in a short term fixed deposit. We are informed that the Appellant has complied with the said order and deposited the amount in the Registry. That has been invested by the Registry. The said amount along with interest accrued thereon be transferred to an escrow account linked to the proceedings pending before the High Court at Calcutta being A.P. No.224 of 2016. The High Court will be free to pass appropriate directions regarding disbursement or investment of the said amount.

                                                               REPORTABLE
                        IN THE SUPREME COURT OF INDIA
                        CIVIL APPELLATE JURISDICTION
                   CIVIL APPEAL NOS. 4892-4893     OF 2017
            (Arising out of SLP (Civil) Nos. 33363-33364 of 2016)

Union of India                                         …. Appellant

Versus

M/S. Simplex Infrastructures Ltd.                .... Respondent


                               J U D G M E N T

A.M.KHANWILKAR, J.

1.    The short question that arises for consideration in  this  appeal  is:
whether an intra-Court Letters Patent Appeal under clause 15 of the  Letters
Patent of High Court at Calcutta can be maintained against an  order  passed
by the Single Judge on an application for condonation of delay  filed  along
with the petition (for setting aside an Arbitration Award) under Section  34
of the Arbitration and Conciliation Act, 1996 (hereinafter  referred  to  as
‘the Act’)?

2.    Briefly stated, the Respondent being the lowest bidder was allotted  a
contract by the Appellant in respect of  work  styled  as  “Construction  of
Tsunami Reconstruction Project in A & N Islands.  SH:  Construction  of  821
units of  permanent  shelters  (single  stories)  including  internal  water
supply sanitary installation & internal Electrification  in  the  Island  of
Teressa.” The contract agreement was entered into  between  the  parties  on
5th October, 2006.  According to the Appellant,  the  Respondent  failed  to
adhere to the time frame for completion of the contract.   As  a  result,  a
show cause notice was issued to the Respondent on 27th April, 2007  to  show
cause as to why the contract should not be rescinded by  invoking  clause  3
of the agreement.  The Respondent submitted  its  response  thereto  on  8th
May, 2007.  Despite the dismal performance of the Respondent, the  Appellant
gave it one more opportunity to improve on the  performance  vide  a  letter
dated 20th June, 2007.  The Respondent, however, submitted its 12th  revised
completion plan dated 10th October, 2007.  Since the  Respondent  failed  to
adhere to the extended time line and also miserably failed to  maintain  the
quality and progress of work, the Appellant served it  with  a  second  show
cause notice on 4th January, 2008.  The Respondent replied to the said  show
cause notice on 1st February 2008. However, the explanation offered  by  the
Respondent,  in  the  perception  of  the  Appellant,  was   found   to   be
unsatisfactory and baseless.  Hence, the Appellant  rescinded  the  contract
vide letter No. 57(12)/RE/TRP/Kamorata/07-08/638 dated 25th February,  2008.


3.    The Respondent then invoked the arbitration clause in  the  agreement,
pursuant to which the  competent  authority  appointed  an  Arbitrator  vide
letter no. 23(6)/(1)ADG(SR)/TRP/08-09/469  dated  27th  August,  2008.   The
arbitration hearing concluded on 27th March, 2014.  An Award  was  published
vide letter No.ARB/RKM/TRP/Case 005/2014-20 dated 27th October,  2014.   The
Appellant received a hard copy of the Award on 31st October,  2014,  wherein
the Arbitrator held that the rescindment order passed by the  Appellant  was
illegal as time was not the essence of the  contract  and  further  directed
the Appellant to pay the final bill submitted by the Respondent.  Aggrieved,
the Appellant filed a petition for setting aside the arbitral  award  before
the District  Court  at  Port  Blair  being  Appeal  No.  2  of  2015.   The
Respondent, on the other hand, filed an execution proceeding in relation  to
the self same Award before the High Court at Calcutta being EC  Case  No.734
of 2015.  The Appellant then preferred an  application  in  Appeal  No.2  of
2015 before the District Court, for stay of the Award.  The  District  Judge
allowed the said application. That fact was brought to  the  notice  of  the
High  Court  at  Calcutta  in  execution  proceedings   initiated   by   the
Respondent. The High Court vide order dated 15th September,  2015,  disposed
of the Execution petition filed by the Respondent and gave  liberty  to  the
Respondent  to  appear  before  the  District  Court  and  to   resist   the
proceedings pending in that court.

4.    The Respondent then filed objections in  the  proceedings  before  the
District  Court.   According  to  the  Respondent,  the  appeal  before  the
District Court was not maintainable as the application under  Section  9  of
the Arbitration Act with regard to the subject  matter  of  the  arbitration
proceedings was filed before the  High  Court  at  Calcutta.   It  was  then
contended that the District Court did not have territorial  jurisdiction  as
per Section 42 of the Act and that the petition  under  Section  34  against
the subject award can proceed only before  the  High  Court.   The  District
Court vide order dated 12th February, 2016 accepted that objection. It  held
that the petition filed by the Appellant under Section 34  of  the  Act  was
not maintainable on account of territorial jurisdiction.

5.     The  Appellant  then  challenged  the  Award  by  filing  Arbitration
Petition No. 224 of 2016 before the High Court at Calcutta under Section  34
of the Act and prayed for setting aside the Arbitral Award.   The  Appellant
also filed an application being G.A. No: 958 of 2016  for  condoning  delay,
mentioning the circumstances in which the  Appellant  had  to  approach  the
High Court under Section 34 of the Act.   The  learned  Single  Judge  after
hearing the parties allowed the said application for condonation  of  delay,
being satisfied that sufficient cause was made  out  by  the  Appellant  for
condoning the delay of 131 days.  The said order reads thus:

“The Court: After considering the submissions made by the  learned  advocate
for  the  applicant/petitioner  and  upon  perusing  the   application   for
condonation of delay, it appears that sufficient cause  has  been  shown  to
explain the delay in filing the application, being AP No.224 of 2016 and  as
such the delay is condoned.   The  application  for  condonation  of  delay,
being GA No.958 of 2016, is accordingly allowed.”

6.    Aggrieved by the aforementioned order  dated  27th  April,  2016,  the
Respondent preferred  an  intra  court  letters  patent  appeal  being  G.A:
No.1650 of 2016.  This appeal was contested by the Appellant inter  alia  on
the ground that such  letters  patent  appeal  was  not  maintainable.   The
Division Bench adverted to the relevant decisions pressed  into  service  by
both the sides including the decision of this Court  in  Fuerst  Day  Lawson
Limited v. Jindal Exports Limited.[1]  It has  also  noted  that  the  order
under appeal is not appealable under Section 37 of  the  Act.  The  Division
Bench, however, relied on the judgment of the Division  Bench  of  the  High
Court at Calcutta in the case  of   Modi  Korea  Telecommunication  Ltd.  V.
Appcon Consultants Pvt. Ltd.[2]   and of the special Bench  of  three-Judges
in M/s. Tanusree Art Printers & Anr. V.  Rabindra  Nath  Pal,[3]    to  hold
that the three-Judge Bench decision of the High Court was  directly  on  the
point and was binding on it. It then proceeded to conclude  that  the  order
passed by the learned Single Judge, sensu stricto  was  not  falling  within
the provisions of the Act and was without jurisdiction.  On that  logic  the
Division Bench reversed the order of the learned Single  Judge  by  invoking
its jurisdiction under Letters Patent Appeal.

7.    The Appellant contends that  the  Division  Bench  committed  manifest
error in entertaining the appeal disregarding  the  settled  legal  position
restated by this  Court  in  Fuerst  Day  Lawson  Limited  (supra).   It  is
submitted that the Act is a self contained code.  It provides for  a  remedy
against the arbitral award, including for condonation of delay in filing  of
the petition under Section 34 of the Act.  The order passed by  the  learned
Single Judge on the subject application for condonation of delay  in  filing
petition under Section 34 was, therefore, in  relation  to  the  arbitration
proceedings.  Even if the discretion or  for  that  matter  jurisdiction  is
misapplied and is not in accordance with law, that can be no reason to  hold
that the order in such proceedings was not under the provisions of  the  Act
as such.  It would nevertheless come within the ambit of the Act.   Further,
such order has not been made appealable under  Section  37  of  the  Act  as
applicable at the relevant time. The correctness whereof could  be  assailed
before the appropriate forum, but not by way  of  a  Letters  Patent  Appeal
under clause 15.  The Appellant has stoutly relied on  the  dictum  of  this
Court in the case of Fuerst Day Lawson  Limited  (supra)  to  buttress  this
contention.

8.    The Respondent, on the other hand, has supported  the  view  taken  by
the Division Bench in the impugned judgment being  in  conformity  with  the
dictum of the special bench of the High Court of three-Judges  in  the  case
of M/s. Tanusree Art Printers & Anr.(supra).  It is submitted  that  as  the
order passed by the learned Single Judge is not in terms of  the  provisions
of the Act and thus without jurisdiction, the exercise  of    powers   under
clause 15 of the  letters  patent  appeal  was  just  and  proper.   It  was
submitted that Section 34 of the Act gives no jurisdiction to the  court  to
condone delay in filing of the petition for setting aside the award,  beyond
the period prescribed in sub-Section  (3)  thereof.   After  expiry  of  the
prescribed period, it is submitted that even though it  may  be  a  case  of
gross hardship caused to the Appellant because of  the  ill  advised  remedy
pursued before the District Court and virtually being  rendered  remediless,
that is the inevitable consequence of the mandate of Section 34 of the  Act.
 Further, the explanation offered by the Appellant in  the  application  for
condonation of delay cannot be reckoned as a sufficient cause in law.  Thus,
the learned Single Judge committed manifest error in entertaining  the  same
to show indulgence to the Appellant by condoning the delay of  131  days  in
filing of the petition under Section 34 of the Act.

9.    After hearing the counsel  for  the  parties  and  going  through  the
decisions relied upon by both sides, we have no hesitation in allowing  this
appeal.  The efficacy of the provisions of the Act  has  been  expounded  by
this Court in  the  case  of   Fuerst  Day  Lawson  Limited  (supra).  After
analyzing the relevant provisions and the decisions on the  subject  and  in
particular the decision in P.S. Sathappan v. Andhra Bank Ltd.[4],    it  has
been held that the Act is a self contained Code relating to arbitration.  In
paragraphs 88 and 89 of the reported judgment, this Court opined:

“88. Mohindra  Supply  Co.3  was  last  referred  in  a  Constitution  Bench
decision of this Court in P.S. Sathappan16, and  the  way  the  Constitution
Bench understood and interpreted Mohindra Supply Co.3 would  be  clear  from
the following para 10 of the judgment: (P.S. Sathappan case16, SCC pp.  689-
90)
“10. … The provisions in the Letters Patent providing  for  appeal,  insofar
as they related to orders passed in arbitration proceedings,  were  held  to
be subject to the provisions of Sections 39(1) and (2)  of  the  Arbitration
Act, as the same is a self-contained code relating to arbitration.”

89. It is, thus, to be seen that Arbitration Act, 1940, from  its  inception
and right through to 2004 (in  P.S.  Sathappan)  was  held  to  be  a  self-
contained code. Now, if the Arbitration Act, 1940 was held  to  be  a  self-
contained code, on matters pertaining to arbitration,  the  Arbitration  and
Conciliation Act, 1996, which  consolidates,  amends  and  designs  the  law
relating to arbitration bring it, as much as possible, in harmony  with  the
UNCITRAL Model must be held only to be more so. Once it  is  held  that  the
Arbitration Act is a self-contained code and exhaustive, then it  must  also
be held, using the lucid expression of  Tulzapurkar,  J.,  that  it  carries
with it “a negative import that only such acts as are mentioned in  the  Act
are permissible to be done and acts or things not mentioned therein are  not
permissible to be done”. In other words, a letters patent  appeal  would  be
excluded by the application of one of the general principles that where  the
special Act sets out a self-contained code the applicability of the  general
law procedure would be impliedly excluded.”

10.   After this decision, there is no scope to contend that the  remedy  of
Letters Patent Appeal was available in relation to judgment of  the  learned
Single Judge in question. This legal  position  has  been  restated  in  the
recent decision of this Court (to which one of us was party,  Justice  Dipak
Misra), in the case of Arun Dev Upadhyaya V/s. Integrated Sales Service  Ltd
& Anr.[5]

11.    The  Division  Bench  of  the  High  Court,  however,  made  a   fine
distinction by holding that the judgment of  the  learned  Single  Judge  of
condoning delay in filing of the petition under Section 34 of  the  Act  was
without jurisdiction and not in terms of the provisions of the Act.   It  is
not possible to countenance this  approach.   The  Division  Bench,  in  our
opinion, was not right in observing that the decision in M/s.  Tanusree  Art
Printers & Anr. (supra) being of a special  bench  of  three-Judges  of  the
same Court, was binding,  in spite of having noticed the  decision  of  this
Court in Fuerst Day Lawson Limited (supra) – which is directly on the  point
and was pressed into service by the Appellant.  Neither the  Division  Bench
of the High Court at Calcutta which  dealt  with  the  case  of  Modi  Korea
Telecommunication Ltd. (supra) nor the three-Judges Bench which decided  the
case of M/s. Tanusree Art Printers & Anr.(supra), had  the  benefit  of  the
judgment of this Court in Fuerst Day Lawson Limited (supra), which is  later
in time.

12.   The Act as applicable to the present case, provides for  a  remedy  of
appeal in terms of Section 37 of the Act.  The same reads thus:-

“37. Appealable orders. – (1) An appeal shall lie from the following  orders
(and from no others) to the Court authorized by law  to  hear  appeals  from
original decrees of the Court passing the order, namely:-
[(a) Refusing to refer the parties to arbitration under section 8;
(b) granting or refusing to grant any measure under section 9;
(c) setting aside or refusing to set aside an arbitral award  under  section
34.]
(2) An appeal shall also lie to a  Court  from  an  order  of  the  arbitral
tribunal-
(a) accepting the plea referred to in sub-section (2) or sub-section (3)  of
section 16; or
(b) granting or refusing to grant an interim measure under section 17.
(3) No second appeal shall lie from an order passed  in  appeal  under  this
section, but nothing in this section shall affect or take away any right  to
appeal to the Supreme Court.”

13.   On a bare reading of this provision, it  is  noticed  that  remedy  of
appeal has been provided only against an order of setting aside or  refusing
to set aside an arbitral award  under  Section  34(1)  (c).   No  appeal  is
provided against an order passed by  the  Court  of  competent  jurisdiction
condoning the delay in filing the petition under Section 34 of  the  Act  as
such.   The Division Bench in  the  impugned  Judgment,  therefore,  rightly
noted that remedy of appeal  against  the  impugned  order  of  the  learned
Single Judge was not otherwise available under Section 37 of the Act.

14.   In our opinion, the issue is squarely answered against the  Respondent
by the decision of this Court in Fuerst  Day  Lawson  Limited  (supra).   In
that, the Judgment of the learned Single Judge dated 27th April,  2016,  was
passed on an application purported to be under Section  34(3)  of  the  Act,
for condoning delay  in  filing  of  the  petition  for  setting  aside  the
arbitral award. Hence, the remedy of  Letters  Patent  Appeal  against  that
decision is unavailable.  The question as  to  whether  the  learned  Single
Judge had rightly exercised the discretion or otherwise, could  be  assailed
by the Respondent before this Court by way of special leave  petition.  But,
certainly not by way of a Letters Patent Appeal under clause 15.  For,  even
if the learned Single Judge may have committed  manifest  error  or  wrongly
decided  the  application  for  condonation  of  delay,  that  judgment   is
ascribable to exercise of jurisdiction under Section 34(3) of  the  Act.  In
other words, whether the prayer for condonation of delay can be accepted  or
whether the application deserves to be rejected, is  a  matter  well  within
the jurisdiction of that court.

15.   The learned counsel for the Respondent was at  pains  to  persuade  us
that the decision of the learned Single Judge is palpably wrong  and  cannot
be sustained in law.  However, we cannot permit the  Respondent  to  agitate
that plea in the present appeal preferred by the Appellant  challenging  the
impugned decision of the Division Bench.  Instead, we  deem  it  appropriate
to leave all contentions available to both sides open and  give  liberty  to
the Respondent to challenge the judgment of the learned Single  Judge  dated
27th April, 2016 in G.A.No.958 of 2016, if so advised.

16.   Accordingly, the impugned judgment of the Division Bench of  the  High
Court at Calcutta dated 20th June, 2016 passed in  G.A.No.1650  of  2016  in
APOT No. 183/2016 in A.P. No. 224/2016 is set  aside  with  liberty  to  the
Respondent to challenge the judgment of the learned Single Judge dated  27th
April, 2016 in  G.A.  No.  958  of  2016  in  AP  No.:  224  of  2016.   All
contentions available to both sides with regard to the  correctness  of  the
Judgment of the Learned Single Judge dated 27th April, 2016, are kept  open.


17.   While parting, we may take note of the order dated 7th November,  2016
passed by this Court directing the Appellant to  deposit  Rs.  5,00,00,000/-
(Rupees Five Crores) in the Registry of this Court  and  further  to  invest
the same in a short term fixed deposit.  We are informed that the  Appellant
has complied with the said order and deposited the amount in  the  Registry.
That has been  invested  by  the  Registry.   The  said  amount  along  with
interest accrued thereon be transferred to an escrow account linked  to  the
proceedings pending before the High Court at Calcutta being A.P.  No.224  of
2016.  The High Court will be free to pass appropriate directions  regarding
disbursement or investment of the said amount.

18.   The appeals are allowed in the above terms with no order as to costs.

                                       …..……………………………..J.
                                     (Dipak Misra)




                                              .…..…………………………..J.
                                  (A.M.Khanwilkar)

New Delhi,
Dated: April 13,  2017
-----------------------
[1]    (2011) 8 SCC 333
[2]    (1999) 2 CHN 107
[3]    (2000) 2 CHN 213
[4]    (2004) 11 SCC 672
[5]    (2016) 9 SCC 524

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.

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
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