Whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder. While holding that there is no limitation placed on the power to review the evidence in an appeal against acquittal,? Apex court held that The reasons given by the trial court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses [ panchanama prepared at police station but not at death spot], improbability of identification of the accused [ laterin light behind the mob - non seizer of Torch light deposed by witness] , non- examination of independent witnesses, previous enmity between the accused and the witnesses, nonproduction of important prosecution witnesses and improper investigation of the case.-By differing with the view taken by the trial court on the above points, the High Court found that the judgment of the trial court is perverse and that there is only one view possible which leads to the guilt of the accused. -The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted. The High Court ignored the fact that the presumption of innocence in favour of the Appellants is further strengthened by an order of acquittal. No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court. For the aforementioned reasons, the Appeals are allowed. The judgment of the High Court is set aside and the judgment of the trial court is restored.

Whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder. While holding that there is no limitation placed on the power to review the evidence in an appeal against acquittal,?
Apex court held that The reasons given by the trial court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses [ panchanama prepared at police station but not at death spot], improbability of identification of the accused [ laterin light behind the mob - non seizer of Torch light deposed by witness] , non- examination of independent witnesses, previous enmity between the accused and the witnesses, nonproduction of important prosecution witnesses and improper investigation of the case.-By differing with the view taken by the trial court on the above points, the High Court found
that the judgment of the trial court is perverse and that there is only one view possible which leads to the guilt of the accused. -The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings
recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted. The High Court ignored the fact that the presumption of innocence in favour of the
Appellants is further strengthened by an order of acquittal. No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court. For the aforementioned reasons, the Appeals are allowed. The judgment of the High Court is set aside and the judgment of the trial court is restored. 

1
 Non Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
 CRIMINAL APPEAL Nos . 407- 408 of2009
Mohd. Akhtar @ Kari & Ors. .... Appellants

Versus
State of Bihar & Anr. …. Respondents
J U D G M E N T
L. NAGESWARA RAO, J.
1. In these Appeals, we are concerned with the
correctness of the judgment of the High Court of
Judicature at Patna by which the judgment of the trial
court was set aside and the acquittal of the Appellants
was reversed. The High Court convicted the Appellants
under Section 302 read with Sections 34 and 148 of the
Indian Penal Code, 1860 (“the IPC”) and sentenced them
to undergo life imprisonment.
2. We are informed that the Appellant Nos. 1, 2 and 4
died during the pendency of these Appeals and so, the
2
Appeals filed by them abate. On the statement of the
informant Md. Abu Daud (PW-6), the fardbeyan was
recorded by the Officer Incharge of Matihani Police
Station at 9.00 p.m. on 05.01.1984. He stated that
along with his brother Md. Nadir Sah @ Jumma
(deceased), he had gone to the house of Md. Mobin
(PW-4) for collecting irrigation dues. They were basking
by the ghura (fire place) at Md. Mobin’s darwaza. A
mob of 10-11 persons armed with pistols, rifles and gun
came there at that time. The informant identified seven
out of eleven persons. Md. Chamru @ Sahadat was
armed with gun, Noor Alam with rifle, Md. Jam Alam
(Appellant No.4) with gun and Md. Kari @ Akhtar
(Appellant No.1), Md. Samad and Md. Sanjat
(Appellant No.3) also had fire arms. Immediately after
the mob reached, the accused Md. Chamru@ Sahadat
warned that nobody should try to escape and then Md.
Sanjat (Appellant No.3) fired one shot which did not hit
anybody. The informant, Md. Nadir Sah @ Jumma
(deceased) and Md. Mobin (PW-4) started running
and all the accused chased them. The informant hid
3
himself by the side of a Simal tree from where he saw
his brother Md. Nadir Sah @ Jumma (deceased) being
surrounded by the accused near the southern wall of the
house of one Samshul. After being
surrounded, the deceased Md. Nadir Sah @Jumma was
shot dead by Md. Chamru @ Sahadat, Md. Jan Alam and
Noor Alam. The accused fled towards the village and
soon after the informant and Md. Mobin rushed to where
the deceased was lying and found that he was hit by the
bullets. They started shouting for help. Md. Adil, Md.
Ataul Rehman and several others came. They were
informed about the incident by the informant.
3. On completion of the investigation, a charge sheet
was filed under Sections 148 and 302 read with Section
149 IPC against seven persons out of whom one of the
accused Md. Samad died and Md. Chamru @ Sahadat
and Noor Alam absconded. The remaining accused
i.e. the Appellants- herein faced trial for the charges
framed under Sections 148 and 302 read with Section
149 IPC. According to PW-9 Bishram Das, who was the
investigating officer, the information was received at
4
7.45 p.m. on 05.01.1984 that 2-3 shots were hurled
and one person killed in Saidpur village. After recording
S.D. Entry No.65, he proceeded to the Saidpur village
along with other policemen. After reaching
the place of the incident, he recorded the
statement of Md. Abu Daud and prepared an inquest
report. He also seized the blood soaked soil, ash of
ghura and a lantern.
4. Post-mortem examination of deceased Jumma was
conducted by PW-5 at 8.00 a.m. on 06.01.1984 who
found the following injuries on the person of the
deceased Md. Nadir Sah @ Jumma :
“(i) Deep wound with irregular burnt margin,
size x 2” x 2” over the right cheek with
surrounding areas with black stained with
comminuted fracture on the right side
mandible and maxilla and there was
laceration of the surrounding tissues of the
tongue. Multiple pillets and cork were
recovered which were preserved and sealed.
(ii) Penetrating wound ½” diameter with
burnt and inverted margin over the right
coastal cartilage middle of the right nipple
caused fracture of the cartilage. On further
deep dissection the right lunge was found
penetrated. There was also blood in the left
side of chest cavity. There was also
penetration of lower lobe of the left lung.
There was hole in the heart. There was
fracture of the ninth rib. There was wound on
5
the back size 1” in diameter with inverted
margine.”
5. Hemorrhage due to the above injuries was the
cause of death according to PW-5 and the death had
occurred 24 hours prior to the post-mortem
examination. Out of the 11 witnesses who were
examined by the Prosecution, PWs-3,4 and 6 were the
eye witnesses. PW-3 deposed that he heard the sound
of firing near the house of Samshul when he was
returning from Ghasarpur Tola and saw seven accused
who were chasing the deceased Md. Nadir Sah @
Jumma, Md. Abu Daud (PW-6) and Md. Mobin (PW-4).
Accused- Md. Jam Alam, Md. Sahadat and Noor Alam had
fired at the deceased near the house of Samshul. He
stated that he identified the accused by flashing his
torch light. According to him, the police arrived at the
place of the incident at 9.00 p.m. He testified that he
did not tell anybody about the incident till the police
reached there. PW-4 stated in his evidence that he
arranged a ghura (fireplace) with leaves at 6.00 p.m. on
05.01.1984. Md. Abu Daud (PW-6) and Md. Nadir Sah @
Jumma (deceased) who came to demand the remaining
6
irrigation dues from him also sat near the ghura. At that
time a mob of 11 persons suddenly came there. He
could identify seven out of eleven persons in mob in the
light of ghura and of lantern which was hanging in the
oriyani (veranda). He further deposed that he, the
deceased, and PW-6 started running away from the
mob. The deceased was surrounded by the accused
near the southern wall of Samshul’s house. He was shot
dead by the accused Sahadat, Md. Jam Alam and Noor
Alam. He stated that Md. Jam Alam and Sahadat had
guns, Noor Alam had a rifle and rest of the accused had
lathis. PW-6 who is the informant deposed that there
was sufficient light cast because of the ghura (fire
place), the lantern and the torch which he was carrying.
He witnessed the incident from behind the Simal tree
which was 15 yards from the place of occurrence.

6. The oral testimonies of PWs- 3,4 and 6 were
examined thoroughly and the trial court was of the
opinion that it is not safe to rely on their statements.
The trial court held that the evidence relating to
identification of the accused in the available light was
7
not convincing. There is reference to the evidence
regarding the lantern in the varanda which was behind
the place where the mob was standing and the
improbability of their being identified in the light
emitted by the lantern. The evidence of PW-6 that he
flashed a torch light for identifying the accused persons
was disbelieved as no torch was seized by the police.
For the aforesaid reasons, the trial court was of the
opinion that the eye witnesses could not have identified
the accused. Previous enmity between the accused on
one hand and the informant’s family on the other
was proved. The trial court further found that there was
a delay in lodging the FIR which provided an opportunity
to the informant and other PWs to implicate their
enemies. Thus, false implication could not be ruled out.
Further, the fardbeyan was recorded in the village at
9.00 p.m. on 05.01.1984. A dead body challan which
was prepared by J.N. Singh, Sub-Inspector of Police
(S.I.) which shows that the body was sent for postmortem
at 11.00 p.m. There was also an entry in the
station diary that J.N. Singh (S.I.) returned to the police
8
station at 9.00 p.m. If the fardbeyan was prepared at
9.00 p.m. at the place of incident which is six kilometers
away from the police station, J.N. Singh (S.I.) could not
have arrived at the police station at 9.00 p.m. The
record shows that he prepared the inquest report at
10.00 p.m. and the dead body challan at 11.00 p.m. at
the place of occurrence. J.N. Singh (S.I.) who is an
important witness was not examined by the prosecution.
Referring to the above circumstances, the trial court
held that it was clear that the inquest report and the
dead body challan were prepared later at the police
station. An adverse inference was drawn against the
Prosecution. The trial court also took note of the
presence of the Mangal Tanti, the Chowkidar of the
village, who reached the place of the incident in 30
minutes after the incident took place. He was not
examined as a witness. None of the witnesses deposed
that they informed the Chowkidar about the incident.
No independent witness was examined though the
village was hardly 200 metres from the place of the
incident. No pellet or traces of bullets were recovered
9
from the place of the incident. On the basis of the
above findings along with other contradictions in the
evidence of the witnesses, the trial court acquitted the
Appellants of all the charges against them.
7. The Appeals filed by the State and the revision filed
by the complainant, were taken altogether. The High
Court appreciated the evidence and found fault with the
judgment of the trial court. The High Court felt that
apart from minor inconsistencies, the evidence of the
eye witnesses was reliable and there was sufficient light
to identify the accused. The accused shared a
common intention of killing the deceased according to
the High Court. The delay in registering the FIR was
found to be not fatal to the case of the Prosecution. The
evidence of interested witnesses was also held reliable
by the High Court. The minor errors in
recording the time in the police station and the
non-examination of J.N. Singh (S.I.) did not prejudice the
prosecution’s case. By differing with the view taken by
the trial court on the above points, the High Court found
that the judgment of the trial court is perverse and that
10
there is only one view possible which leads to the guilt
of the accused. On the aforesaid findings, the High
Court convicted the Appellants under Section 302 read
with Sections 34 and 148 IPC and sentenced them to life
imprisonment.
8. The question that falls for determination in this
case is whether the High Court was right in setting aside
the acquittal of the Appellants and convicting them for
an offence of murder. While holding that there is no
limitation placed on the power to review the evidence in
an appeal against acquittal, Lord Russell in Sheo
Swarup v. King-Emperor
1
 held:
“9. .. .. 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
1 (1934) 36 BOM LR 1185 ¶9
11
Judge who had the advantage of seeing the
witnesses.”
9. The approach of the High Court in an appeal
against acquittals was explained by this Court in
Surajpal Singh & Ors. v. The State
2
 as follows:
“It is well-established that in an appeal
under section 417 of the Criminal Procedure
Code, the High Court has full power to review
the evidence upon which the order of
acquittal was founded, but it is equally wellsettled
that the presumption of innocence of
the accused is further reinforced by his
acquittal by the trial court, and the findings
of the trial court which had the advantage of
seeing the witnesses and hearing their
evidence can be reversed only for very
substantial and compelling reasons.”
10. This Court in Muralidhar @ Gidda & Anr. v.
State of Karnataka
3
 referred to several earlier
judgments dealing with appeals against acquittals
and observed that the appellate court must bear in mind
the following :
“12. .. ..
(i) There is presumption of innocence in
favour of an accused person and such
2 (1952) 3 SCR 193
3 (2014) 5 SCC 730 ¶ 12 (i-iv)
12
presumption is strengthened by the order of
acquittal passed in his favour by the trial
court;
(ii) The accused person is entitled to the
benefit of reasonable doubt when it deals
with the merit of the appeal against
acquittal;
(iii) Though, the powers of the appellate
court in considering the appeals against
acquittal are as extensive as its powers in
appeals against convictions but the appellate
court is generally loath in disturbing the
finding of fact recorded by the trial court. It is
so because the trial court had an advantage
of seeing the demeanour of the witnesses. If
the trial court takes a reasonable view of the
facts of the case, interference by the
appellate court with the judgment of
acquittal is not justified. Unless, the
conclusions reached by the trial court are
palpably wrong or based on erroneous view
of the law or if such conclusions are allowed
to stand, they are likely to result in grave
injustice, the reluctance on the part of the
appellate court in interfering with such
conclusions is fully justified; and
13
(iv) Merely because the appellate court on
reappreciation and re-evaluation of the
evidence is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
court is a possible view. The evenly balanced
views of the evidence must not result in the
interference by the appellate court in the
judgment of the trial court.”
11. It is relevant to refer to another judgment of this
Court in Ghurey Lal v. State of Uttar Pradesh
4
 in
which the principles to be followed by the appellate
courts to overrule or otherwise disturb the trial court’s
acquittal were crystallised as under:
“70. …
1. 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.
A number of instances arise in which the appellate
court would have “very substantial and compelling
reasons” to discard the trial court's decision. “Very
substantial and compelling reasons” exist when:
(i) The trial court's conclusion with regard to the facts
is palpably wrong;
4 (2008) 10 SCC 450
14
(ii) The trial court's decision was based on an
erroneous view of law;
(iii) The trial court's judgment is likely to result in
“grave miscarriage of justice”;
(iv) The entire approach of the trial court in dealing
with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust
and unreasonable;
(vi) The trial court has ignored the evidence or
misread the material evidence or has ignored
material documents like dying declarations/report of
the ballistic expert, etc.
(vii) This list is intended to be illustrative, not
exhaustive.
2. The appellate court must always give proper
weight and consideration to the findings of the trial
court.
3. If two reasonable 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.”
12. Interference with the judgment of the trial court in
this case by the High Court is on a re-appreciation of
evidence which is undoubtedly permissible. Though the
High Court was aware of the well-settled principles of
law in matters relating to appeals against acquittals, it
15
failed to apply the same in their proper perspective.
Interference with an order of acquittal is not permissible
on the ground that a different view is possible. If the
acquittal is justified on a probable view taken by the trial
court, it should not be interfered with. The reasons
given by the trial court for acquittal mainly pertain to
the delay in lodging the FIR, untrustworthy eye
witnesses, improbability of identification of the accused,
non- examination of independent witnesses, previous
enmity between the accused and the witnesses, nonproduction
of important prosecution witnesses and
improper investigation of the case. On a thorough
examination of the entire evidence on record and the
judgment of the trial court, we are of the considered
view that the judgment of acquittal by the trial court is
justified which ought not to have been interfered with by
the High Court. The High Court could not have reversed
a judgment of acquittal merely because another view is
possible. The High Court brushed aside the findings
recorded by the trial court relating to certain omissions
as being minor and held the omissions should not have
16
been the basis on which the Appellants have been
acquitted. The High Court ignored the fact that the
presumption of innocence in favour of the
Appellants is further strengthened by an order of
acquittal. No perversity in the judgment of the trial
court in acquitting the Appellants has been
demonstrated by the High Court for interfering with the
judgment of the trial court.
13. For the aforementioned reasons, the Appeals are
allowed. The judgment of the High Court is set aside
and the judgment of the trial court is restored. The
Appellant No.3 was released on bail on 30.01.2017. His
bail bonds are discharged.
 ...................................J.
 [ L. NAGESWARA RAO ]

 ..................................J.
 [ R. SUBHASH REDDY ]
New Delhi,
December 04, 2018.

Whether the independant arbitrator be appointed as per amendment Act. 2015 ? High court dismissed the application for appointment of fresh abitrator as already departmental arbitrator was appointed who terminated the arbitration proceedings due to non filing of claim - Apex court held that However, on the fourth occasion, proceedings were simply terminated since no hearings were held on earlier occasions, he expected that his request might be accepted. The arbitrator could have issued a notice warning the appellant that no adjournment would be granted under any circumstances. Since, no such warning was given, we deem it appropriate to set aside the order of termination. Appellant had made a claim on account of delay as indicated in his letter dated 18.10.2013 under various heads. In the interest of justice, in our considered view, an opportunity is to be afforded to the appellant to go before the departmental arbitrator (as agreed by the parties in clause (65) of the general conditions of contract) and the proceedings of the arbitrator dated 06.08.2014 terminating the proceedings is to be set aside. We are conscious that after the Amendment Act, 2015, there cannot be a departmental arbitrator. As discussed earlier, in this case, the agreement between the parties is dated 19.12.2006 and the relationship between the parties are governed by the general conditions of the contract dated 19.12.2006, the provisions of the Amendment Act, 2015 cannot be invoked. In the result, the appeals are disposed of with the following directions:- (i) the proceedings of the arbitrator dated 06.08.2014 terminating the arbitral proceedings is set aside. In terms of clause (65) of the general conditions of contract, the Chief Engineer, Himachal Pradesh Public Works Department is directed to appoint an arbitrator in terms of clause (65) of the agreement. (ii) the appellant shall file his claim before the arbitrator so nominated and the arbitrator shall afford sufficient opportunities to both the parties and proceed with the matter in accordance with law.

Whether the independant arbitrator be appointed as per amendment Act. 2015 ?
High court dismissed the application for appointment of fresh abitrator as already departmental arbitrator was appointed who terminated the arbitration proceedings due to non filing of claim -
Apex court held that However, on the fourth occasion, proceedings were simply terminated since no hearings were held on earlier occasions, he expected that his request might be accepted. The arbitrator could have issued a notice warning the appellant that no adjournment would be granted under any circumstances. Since, no such warning was given, we deem it appropriate to set aside the order of termination. Appellant had made a claim on account of delay as indicated in his letter dated 18.10.2013 under various heads. In the interest of justice, in our considered view, an opportunity is to be afforded to the appellant to go before the departmental arbitrator (as agreed by the parties in clause (65) of the general conditions of contract) and the proceedings of the arbitrator dated 06.08.2014 terminating the proceedings is to be set aside. We are conscious that after the Amendment Act, 2015, there cannot be a departmental arbitrator. As discussed earlier, in this
case, the agreement between the parties is dated 19.12.2006 and the relationship between the parties are governed by the general conditions of the contract dated 19.12.2006, the provisions of the Amendment Act, 2015 cannot be invoked. In the result, the appeals are disposed of with the following directions:- (i) the proceedings of the arbitrator dated 06.08.2014 terminating the arbitral proceedings is set aside. In terms of clause (65) of the general conditions of contract, the Chief Engineer, Himachal Pradesh Public Works Department is directed to appoint an arbitrator in terms of clause (65) of the agreement. (ii) the appellant shall file his claim before the arbitrator so nominated and the arbitrator shall afford sufficient opportunities to both the parties and proceed with the matter in accordance with law.

REPORTABLE
IN THE SUPREME COURT OF INDIA
CIVIL APPELLATE JURISDICTION
CIVIL APPEAL NOS. 11824-11825 OF 2018
(Arising out of SLP(C) Nos.1274-75 of 2015)
SP SINGLA CONSTRUCTIONS PVT. LTD. …Appellant
VERSUS
STATE OF HIMACHAL PRADESH AND
ANOTHER …Respondents
J U D G M E N T
R. BANUMATHI, J.
Leave granted.
2. These appeals arise out of the judgments dated 10.03.2014 in
Arbitration Case No.4049 of 2013 and dated 01.09.2014 in Review
Petition No. RPST/20087/2014 passed by the High Court of
Himachal Pradesh in and by which the High Court dismissed the
Arbitration Petition and Review Petition filed by the appellant
declining to appoint arbitrator holding that as per the terms of the
agreement, arbitrator had already been appointed.
3. Brief facts which led to the filing of these appeals are as
follows:-
1
The appellant was awarded construction work contract on
19.12.2006 relating to balance work of 214.00 mtrs. span C/C
bearings on abutment bridge over river Beas at Harsipattan on
Mandi Rewalsar Chandesh-Rakhota Maserah Sarkaghat Tihra
Sandhole Alampur Jawalamukhi road for a sum of
Rs.14,29,81,500/-. An agreement was also entered into between
the parties and clause (65) of the General Conditions of Contract
contains arbitration clause. The period allowed for completion of
work was on or before 04.01.2009. However, extension was granted
to the appellant up to 30.06.2010. The work was completed by the
appellant on 04.06.2011 and payment for the execution of work was
made. The appellant raised a dispute and requested for the
appointment of arbitrator vide its letter dated 18.10.2013. Pursuant
to the request of the appellant, the Chief Engineer, HPPWD
appointed the “Superintendent Engineer, Arbitration Circle, HPPWD,
Solan” as the arbitrator on 30.10.2013 and the said appointment
had been made in terms of clause (65) of the agreement. The
arbitrator entered upon reference on 11.11.2013. The appellant
after requesting for the appointment of arbitrator either remained
absent from the proceedings or sought adjournments stating that he
intends to challenge the appointment of arbitrator before the Chief
Justice as per the provisions of Arbitration and Conciliation Act,
2
1996. Even after hearing, no statement of claim was filed by the
appellant. On 06.08.2014, arbitration proceedings were terminated
under Section 25(a) of the Arbitration and Conciliation Act, 1996.
4. Being aggrieved by the appointment of “Superintendent
Engineer, Arbitration Circle, Solan, HPPWD” as the arbitrator, the
appellant filed petition before the High Court under Section 11(6) of
the 1996 Act praying for appointment of independent arbitrator. The
High Court placed reliance upon the judgment of this Court in
Antrix Corporation Limited v. Devas Multimedia Private Limited
(2014) 11 SCC 560 wherein it was held that in case, if any party is
dissatisfied or aggrieved by the appointment of arbitrator in terms of
the agreement by other party/parties, his remedy would be by way
of petition under Section 13 of the 1996 Act, and, thereafter while
challenging the award under Section 34 of the 1996 Act. The High
Court held that the appointment of “Superintendent Engineer” as
arbitrator being in terms of clause (65) of the agreement,
Section 11(6) of the Act cannot be invoked. The appointment of
arbitrator could not be challenged by way of an application under
Section 11(6) of the 1996 Act. Being aggrieved by the dismissal of
the arbitration petition, the appellant is before us.
3
5. On behalf of the appellant, learned senior counsel Mr.
Maninder Singh submitted that the appointment by office after
coming into operation of the 1996 Act, was no more permissible and
any appointment could only be made in terms of Section 11 of 1996
Act. It was further submitted that since the arbitrator appointed by
office had entered upon the reference, the appellant was compelled
to file Arbitration Petition No.4049 of 2013 and the High Court
erroneously rejected the prayer made on behalf of the appellant for
appointment of an independent arbitrator by name. The learned
senior counsel further submitted that the arbitrator appointed by
office, is an employee in service of the HPPWD which the provision
of Section 12(5) bars at the threshold. Learned senior counsel
placed reliance upon Ratna Infrastructure Projects Pvt. Ltd. v.
Meja Urja Nigam Private Limited (2017) SCC Online Del 7808.
6. Refuting the above contention, on behalf of the respondentState,
learned counsel submitted that the appointment of
Superintendent Engineer, Arbitration Circle is as per clause (65) of
the agreement and as per the provisions of law. In response to the
contention that Section 12(5) of the Amendment Act, 2015 bars
appointment of arbitrator by post, the learned counsel for the State
placed reliance upon Board of Control for Cricket in India v.
4
Kochi Cricket Private Limited and others (2018) 6 SCC 287 and
submitted that the provisions of the Amendment Act, 2015 shall
apply in relation to arbitral proceedings commenced on or after the
date of commencement of the Amendment Act, 2015 and shall not
apply to the arbitral proceedings commenced prior to the
Amendment Act, 2015 unless the parties otherwise agree. The
learned counsel submitted that the provision contained in clause
(65) of the general conditions of the Contract would not amount to
agreement of the parties so as to imply application of the provisions
of the Amendment Act, 2015.
7. We have carefully considered the contentions of the parties
and perused the impugned judgment and materials on record. The
point falling for consideration in this appeal is that in the light of the
agreement between the parties in clause (65) of the general
conditions of contract whether the appellant/contractor can
challenge the appointment of the Superintendent Engineer,
Arbitration Circle as Arbitrator to resolve the dispute between the
parties.
8. By the order of HPPWD dated 30.10.2013, the
Superintendent Engineer, Arbitration Circle, HPPWD, Solan was
appointed as the sole Arbitrator to decide and make its award
5
regarding claim/dispute given by the appellant/contractor. The main
thrust of challenge for appointment of sole arbitrator was on the
ground that the arbitrator had not been appointed by name but, had
been appointed by designation. It was submitted that appointment
of arbitrator by office is not permissible and appointment ought to
have been made by name and the same is evident from bare
perusal of clause (65) of the contract. It was submitted that as per
Section 11(1) of the 1996 Act “a person of any nationality may be
an arbitrator, unless otherwise agreed by the parties…….”. It was
submitted that the Arbitrator appointed by the office is not an
appointment in terms of clause (65) of the contract and this aspect
has not been properly considered by the High Court.
9. For proper appreciation of the contentions, we may usually
refer to Clause (65) of the general conditions of contract which
reads as under:-
“Clause 65 of the General Conditions of Contract-…..Except
where otherwise provided in the contract all questions and disputes
relating to the meaning of the specifications, designs drawings and
instructions therein before mentioned and as to the quality of
workmanship of materials used on the work or as to any other
question, claim, right matter or thing whatsoever in any way arising
out of or relating to the contractor designs drawings, specification
and estimates, instructions orders or these conditions otherwise
concerning the works of the execution or failure to execute the
same whether arising during the progress of the work or after the
completion or abandonment thereof shall be referred to the sole
arbitration of the person appointed by the Engineer-in-Chief/Chief
Engineer, Himachal Pradesh Public Works Department. It will be no
objection to any such appointment that the arbitrator so appointed
is a Government servant that he had to deal with the matters to
6
which the contract relates, and that in the course of his duties as
Government servant he had expressed views on all or any of the
matters in dispute or different. The arbitrator to whom the matter is
originally referred being transferred or vacating his office or being
unable to act for any reason that (sic) the Chief Engineer, HPPWD
at the time of such transfer vacation of office or inability to act shall
appoint another person to act as arbitrator in accordance with the
terms of the contract. Such person shall be entitled to proceed with
the reference from the stage at which it was left by his predecessor,
it is also a terms of this contract that no person other than a person
appointed by the Chief Engineer, HPPWD, should act as arbitrator
and if for any reason that is not possible the matter is not be claim
in dispute is Rs.50,000/- (Rupees Fifty Thousand) and above, the
arbitrator shall give reasons for the award.
Subject as aforesaid the provision of the Arbitration Act, 1940 or
any statutory modification or re-enactment thereof and the rules
made thereunder and for the time being shall apply to the
arbitration proceeding under this clause.” [Underlining added]
10. A perusal of clause (65) makes it apparently clear that it was
permissible to appoint a person by designation and this will be
evident from clause (65), in particular the sentence “the arbitrator to
whom the matter is originally referred being transferred or vacating
his office or being unable to act for any reason the Chief Engineer is
to appoint another person….”. If appointments were only to be
made by name and not by designation there could be no question of
further appointment on the Arbitrator vacating his office. It is only
when an Arbitrator is appointed by designation that the question of a
vacancy upon the incumbent vacating office could arise thereby
enabling the Chief Engineer to appoint another person to act as
arbitrator. The Superintendent Engineer, Arbitration Circle appointed
as the Arbitrator is from the very arbitration circle, HPPWD and such
7
appointment is only as per clause (65) of the contract and we find
no merit in the objection raised by the appellant.
11. Likewise, there is no merit in the contention of the appellantcontractor
that the appointed arbitrator is an employee in service of
the HPPWD which the provision of Section 12(5) of the 1996 Act (as
amended w.e.f. 23.10.2015) bars at the threshold itself. In a catena
of judgments, the Supreme Court held that arbitration clauses in
government contracts providing that an employee of the department
will be the sole arbitrator are neither void nor unenforceable.
[Indian Oil Corporation Limited and others v. Raja Transport
Private Limited (2009) 8 SCC 520, Ace Pipeline Contracts (P)
Ltd. v. Bharat Petroleum Corporation Limited (2007) 5 SCC 304,
Union of India and another v. M.P. Gupta (2004) 10 SCC 504]
The fact that a named arbitrator is an employee of one of the parties
is not ipso facto a ground to raise a presumption of bias or lack of
independence on his part. The arbitration agreements in
government contracts providing that an employee of the department
or a higher official unconnected with the work or the contract will be
the arbitrator are neither void nor unenforceable.
12. Observing that, in government contracts before appointing
arbitrators, the appointing authority should be more vigilant and
8
more responsible in choosing arbitrators who are in a position to
conduct arbitral proceedings in an efficient manner without
comprising with the other duties, in Union of India v. Uttar
Pradesh State Bridge Corporation Limited (2015) 2 SCC 52, it
was held as under:-
“17. In the case of contracts between government
corporations/State-owned companies with private
parties/contractors, the terms of the agreement are usually drawn
by the government company or public sector undertakings.
Government contracts have broadly two kinds of arbitration
clauses, first where a named officer is to act as sole arbitrator; and
second, where a senior officer like a Managing Director, nominates
a designated officer to act as the sole arbitrator. No doubt, such
clauses which give the Government a dominant position to
constitute the Arbitral Tribunal are held to be valid. At the same
time, it also casts an onerous and responsible duty upon the
persona designata to appoint such persons/officers as the
arbitrators who are not only able to function independently and
impartially, but are in a position to devote adequate time in
conducting the arbitration. If the Government has nominated those
officers as arbitrators who are not able to devote time to the
arbitration proceedings or become incapable of acting as arbitrators
because of frequent transfers, etc., then the principle of “default
procedure” at least in the cases where Government has assumed
the role of appointment of arbitrators to itself, has to be applied in
the case of substitute arbitrators as well and the Court will step in to
appoint the arbitrator by keeping aside the procedure which is
agreed to between the parties. However, it will depend upon the
facts of a particular case as to whether such a course of action
should be taken or not. What we emphasise is that Court is not
powerless in this regard.”
As pointed out earlier, in the case at hand, the Superintendent
Engineer, Arbitration Circle, HPPWD was appointed as the sole
Arbitrator who, by virtue of his designation, regularly does the
arbitration devoting time to the arbitration proceedings and such
9
appointment of Superintendent Engineer cannot be said to be a
deviation from clause (65) of the agreement.
13. Any challenge regarding the appointment of an arbitrator as
per the terms of the agreement between the parties must be viewed
in the context of the agreement between the parties. As pointed out
earlier, the parties have mutually agreed that there will be sole
Arbitration by the person appointed by the Engineer-in-Chief and
that the appellant shall have no objection to any such appointment
that the Arbitrator so appointed is a Government Servant. If the
appellant has any grievance that the appointment of the arbitrator is
by ‘post’ and not by ‘person’, the appellant ought to have raised the
challenge before the arbitrator in the first instance. Be it noted, in
the petition filed before the High Court under Section 11(6) of the
Arbitration and Conciliation Act, 1996 on 28.12.2013, the appellant
has only prayed for quashing the appointment of the Superintendent
Engineer, Arbitration Circle, HPPWD, Solan as the sole arbitrator as
unconstitutional and sought for appointment of an independent and
impartial sole arbitrator to adjudicate the dispute between the
parties. It is fairly well settled that any challenge to the arbitrator
appointed ought to have been raised before the arbitrator himself in
the first instance.
10
14. Drawing our attention to the wordings in Clause (65) “that the
agreement is subject to any statutory modification or re-enactment
thereof and the rules made thereunder and for the time being shall
apply to the arbitration proceeding under this clause” the learned
senior counsel contended that these words would certainly attract
Section 12(5) of the Act as amended with effect from 23.10.2015. In
this regard, the learned senior counsel placed reliance upon Delhi
High Court judgment in Ratna Infrastructure Projects Pvt. Ltd. v.
Meja Urja Nigam Private Limited (2017) SCC Online Del 7808
wherein interpreting the similar words in a contract, Delhi High Court
held that those words satisfy the requirement of Section 26
(amended Act of 2015) of there being an agreement between the
parties that the Act as amended with effect from 23.10.2015 will
apply and held as under:-
“22. ……. The words “any statutory modification or re-enactment
thereof and the rules made thereunder and for the time being in
force shall apply to the arbitration…” satisfies the requirement of
Section 26 of there being an agreement between the parties that
the Act as amended with effect from 23rd October 2015 will apply.
The Court is not prepared to draw the fine distinction between
‘agree’ and ‘agreed’. Once the amendment to the clause clearly
stated that all statutory modidications and re-enactments would
apply, then there is no need for further agreement in that respect
after 23rd October, 2015. The plea of the Respondent in this regard
is rejected.
23. The net result is that Section 12(5) as amended with effect from
23rd October 2015 would apply. Section 12(5) clearly prohibits the
employee of one of the parties from being an Arbitrator. This would
straightway disqualify Mr. Kher who happens to be a serving GM of
the Respondent. Therefore it is to no avail that the Respondent has
by its letter dated 21st August 2016 appointed Mr. Kher as an
11
Arbitrator to adjudicate the Arbitration Case Nos. 1 of 2013 and 1 of
2014. His mandate stands terminated.”
15. Considering the facts and circumstances of the present case,
we are not inclined to go into the merits of this contention of the
appellant nor examine the correctness or otherwise of the above
view taken by the Delhi High Court in Ratna Infrastructure Projects
case; suffice it to note that as per Section 26 of the Arbitration and
Conciliation (Amendment) Act, 2015 the provisions of the Amended
Act, 2015 shall not apply to the arbitral proceedings commenced in
accordance with the provisions of Section 21 of the Principal Act
before the commencement of the Amendment Act unless the parties
otherwise agree. In the facts and circumstances of the present
case, the proviso in clause (65) of the general conditions of the
contract cannot be taken to be the agreement between the parties
so as to apply the provisions of the amended Act. As per Section
26 of the Act, the provisions of the Amendment Act, 2015 shall apply
in relation to arbitral proceedings commenced on or after the date of
commencement of the Amendment Act, 2015 (w.e.f. 23.10.2015).
In the present case, arbitration proceedings commenced way back
in 2013, much prior to coming into force of the amended Act and
therefore, provisions of the Amended Act cannot be invoked.
12
16. In Board of Control for Cricket in India v. Kochi Cricket
Private Limited and others, (2018) 6 SCC 287, this Court has held
that the provisions of Amendment Act, 2015 (with effect from
23.10.2015) cannot have retrospective operation in the arbitral
proceedings already commenced unless the parties otherwise
agree and held as under:-
“37. What will be noticed, so far as the first part is concerned,
which states—
“26. Act not to apply to pending arbitral
proceedings.—Nothing contained in this Act shall
apply to the arbitral proceedings commenced, in
accordance with the provisions of Section 21 of the
principal Act, before the commencement of this Act
unless the parties otherwise agree.…”
is that: (1) “the arbitral proceedings” and their commencement is
mentioned in the context of Section 21 of the principal Act; (2) the
expression used is “to” and not “in relation to”; and (3) parties may
otherwise agree. So far as the second part of Section 26 is
concerned, namely, the part which reads, “… but this Act shall apply
in relation to arbitral proceedings commenced on or after the date
of commencement of this Act” makes it clear that the expression “in
relation to” is used; and the expression “the” arbitral proceedings
and “in accordance with the provisions of Section 21 of the principal
Act” is conspicuous by its absence.”
17. Immediately after the appointment of the Superintendent
Engineer, Arbitration Circle as the sole Arbitrator (30.10.2013), the
appellant preferred Arbitration Petition No.4049/2013 (28.12.2013)
before the High Court under Section 11(6), 14 and 15 of the
Arbitration and Conciliation Act, 1996 for appointment of an
independent sole Arbitrator.
13
18. The High Court placed reliance upon the judgment in Antrix
Corporation Limited v. Devas Multimedia Private Limited (2014)
11 SCC 560 and held that when the Superintendent Engineer,
Arbitration Circle was appointed as the Arbitrator in terms of the
agreement (or arbitration clause), the provisions of sub-section (6)
of Section 11 cannot be invoked again. The High Court further
observed that in case, the other party is dissatisfied or aggrieved by
the appointment of an arbitrator in terms of the agreement, his
remedy would be by way of petition under Section 13 and thereafter
while challenging the award under Section 34 of the 1996 Act.
19. The High Court in the impugned judgment placed reliance
upon the judgment in Antrix Corporation Limited v. Devas
Multimedia Private Limited (2014) 11 SCC 560 wherein the
Supreme Court held as under:-
“31. The matter is not as complex as it seems and in our view, once
the arbitration agreement had been invoked by Devas and a
nominee arbitrator had also been appointed by it, the arbitration
agreement could not have been invoked for a second time by the
petitioner, which was fully aware of the appointment made by the
respondent. It would lead to an anomalous state of affairs if the
appointment of an arbitrator once made, could be questioned in a
subsequent proceeding initiated by the other party also for the
appointment of an arbitrator. In our view, while the petitioner was
certainly entitled to challenge the appointment of the arbitrator at
the instance of Devas, it could not do so by way of an independent
proceeding under Section 11(6) of the 1996 Act. While power has
been vested in the Chief Justice to appoint an arbitrator under
Section 11(6) of the 1996 Act, such appointment can be questioned
under Section 13 thereof. In a proceeding under Section 11 of the
1996 Act, the Chief Justice cannot replace one arbitrator already
appointed in exercise of the arbitration agreement.”
14
……….
33. Sub-section (6) of Section 11 of the 1996 Act, quite
categorically provides that where the parties fail to act in terms of a
procedure agreed upon by them, the provisions of sub-section (6)
may be invoked by any of the parties. Where in terms of the
agreement, the arbitration clause has already been invoked by one
of the parties thereto under the ICC Rules, the provisions of subsection
(6) cannot be invoked again, and, in case the other party is
dissatisfied or aggrieved by the appointment of an arbitrator in
terms of the agreement, his/its remedy would be by way of a
petition under Section 13, and, thereafter, under Section 34 of the
1996 Act.”
In the present case, the Arbitrator has been appointed as per clause
(65) of the agreement and as per the provisions of law. Once, the
appointment of an arbitrator is made at the instance of the
government, the arbitration agreement could not have been invoked
for the second time.
20. As pointed out earlier the Arbitrator has already entered upon
reference on 11.11.2013. The Arbitrator had first hearing on
07.12.2013; on which date appellant-contractor was absent. For the
next date of hearing on 13.03.2014 the Arbitrator has recorded the
finding that the appellant-claimant-contractor was absent without
any intimation to the Tribunal. In this regard, Mr. Maninder Singh,
the learned Senior Council for the appellant has drawn our attention
to the letter dated 12.03.2014 sent by the appellant requesting for
adjournment. Similarly, in the next date of hearings before the
arbitrator namely, 03.04.2014, 25.04.2014 and 06.08.2014 the
15
appellant-contractor did not appear; but only sent the letters
requesting for adjournment. On 03.04.2014, the matter was
adjourned to 25.04.2014 directing that both parties to come
prepared for the next date of hearing on 25.04.2014. Similar was
the order passed on 25.04.2014 that both parties have to come
prepared for the next date of hearing on 06.08.2014. Since the
appellant-claimant did not appear before the Arbitrator, the Arbitrator
terminated the proceedings on 06.08.2014 under Section 25(a) of
the 1996 Act.
21. Section 25 of the Arbitration Act, 1996 deals with the situation
where the parties commit default without showing sufficient cause
and consequent termination of the proceedings. Section 25
provides three situations where on account of the default of a party,
the arbitral tribunal shall terminate the proceedings which are as
under:-
(i) Under Section 25(a) where the claimant fails to
communicate his statement of claim in accordance
with sub-section (1) of Section 23;
(ii) Under Section 25(b) continue the proceedings on the
failure of the respondent to communicate his claim of
defence in accordance with sub-section (1) of
Section 23;
(iii) Under Section 25(c) continue the proceedings, and
make the arbitral award on the evidence before it, in
16
the event of a party failing to appear at an oral
hearing or produce documentary evidence.
Section 25(a) provides that the Arbitral Tribunal shall terminate the
proceedings where the claimants failed to communicate his claim in
accordance with sub-section (1) of Section 23 of the Act. In the
present case, the appellant has failed to file his statement of claim;
and only sent the communication to the arbitrator seeking
adjournment on the ground that the appellant has approached the
High Court by filing petition under Section 11(6) of the Act. When
the parties have specifically agreed for appointment of sole
Arbitrator of the person appointed by the Engineer-in-Chief/Chief
Engineer, HPPWD, the appellant was not right in approaching the
High Court seeking appointment of an independent Arbitrator.
22. Inspite of extension of time, since the appellant-contractor had
not filed statement of claim, the arbitrator terminated the
proceedings under Section 25(a) of the 1996 Act by proceedings
dated 06.08.2014. The appellant-contractor did not file his
statement of claim before the arbitrator since the appellant had
approached the High Court by filing petition under Section 11(6) of
the 1996 Act, probably under the advice that the appellant can get
an independent arbitrator appointed. The appellant had been
writing letters to the arbitrator before the hearing seeking
17
adjournment. However, on the fourth occasion, proceedings were
simply terminated since no hearings were held on earlier occasions,
he expected that his request might be accepted. The arbitrator
could have issued a notice warning the appellant that no
adjournment would be granted under any circumstances. Since, no
such warning was given, we deem it appropriate to set aside the
order of termination. Appellant had made a claim on account of
delay as indicated in his letter dated 18.10.2013 under various
heads. In the interest of justice, in our considered view, an
opportunity is to be afforded to the appellant to go before the
departmental arbitrator (as agreed by the parties in clause (65) of
the general conditions of contract) and the proceedings of the
arbitrator dated 06.08.2014 terminating the proceedings is to be set
aside. We are conscious that after the Amendment Act, 2015, there
cannot be a departmental arbitrator. As discussed earlier, in this
case, the agreement between the parties is dated 19.12.2006 and
the relationship between the parties are governed by the general
conditions of the contract dated 19.12.2006, the provisions of the
Amendment Act, 2015 cannot be invoked.
23. In the result, the appeals are disposed of with the following
directions:-
18
(i) the proceedings of the arbitrator dated 06.08.2014
terminating the arbitral proceedings is set aside. In terms
of clause (65) of the general conditions of contract, the
Chief Engineer, Himachal Pradesh Public Works
Department is directed to appoint an arbitrator in terms
of clause (65) of the agreement.
(ii) the appellant shall file his claim before the arbitrator
so nominated and the arbitrator shall afford sufficient
opportunities to both the parties and proceed with the
matter in accordance with law.
We make it clear that we have not expressed any opinion on the
merits of the claim of the appellant.
…………….……………J.
 [R. BANUMATHI]
…………….……………J.
 [INDIRA BANERJEE]
New Delhi;
December 04, 2018
19

whether on the acquital of some of accused , the number of the accused shall be five or less than five and as such conviction of other accused under sec.302 read with sec.149 IPC not applicable ? Apex court held that as the original Accused Nos. 6 and 7 are acquitted by the High Court and, therefore, the number of other accused shall be five or less than five and, therefore, the conviction of the original Accused No. 1 for the offence punishable under Section 302 with the aid of Section 149 IPC, is not sustainable is concerned, the same has no substance. It is required to be noted that, from the very beginning, the case of the prosecution was that 7 to 8 persons entered the house with a common intention to kill the deceased. It is required to be noted that the original Accused Nos. 6 and 7 are acquitted by giving the benefit of doubt and on the ground that the story put forward by the prosecution that they caught hold of the deceased, is not believable. There is no finding by the High Court while giving the benefit of doubt and acquitting the original Accused Nos. 6 and 7 that they were not present at the time of the incident. Therefore, the overt act and the role attributed to them is not believable. Even otherwise, so far as original Accused No. 1 and even original Accused No. 2 are concerned, we are of the opinion that the prosecution in the present case has proved beyond doubt the case against them individually for the offence under Section 302 of IPC. whether once the case against the original Accused Nos.6 and 7 has not been believed and consequently they are acquitted by giving them benefit of doubt, similar benefit of doubt ought to be given to the other accused, more particularly, Accused No.1 also. ? Apex court held that against A1 and A2 there was direct evidence and as such the principle not applies where as Looking to the dimension of the room and the role attributed to the original Accused Nos.4 and 5, we are of the opinion that the original Accused Nos. 4 and 5 are required to be acquitted by giving them benefit of doubt, as has been given to the original Accused Nos. 6 and 7 by the High Court.

whether on the acquital of some of accused , the number of the accused shall be five or less than five and as such conviction of other accused under sec.302 read with sec.149 IPC not applicable ? 
Apex court held that as the original Accused Nos. 6 and 7 are acquitted by the High Court and, therefore, the number of other accused shall be five or less than five and, therefore, the conviction of the original Accused No. 1 for the offence punishable under Section 302 with the aid of Section 149 IPC, is not sustainable is concerned, the same has no substance.
 It  is  required  to  be  noted  that,   from  the  very beginning,   the   case   of   the   prosecution   was   that   7   to   8 persons entered the house with a common intention to kill the deceased.     It is required to be noted that the original Accused Nos. 6 and 7 are acquitted by giving the benefit of
doubt and on the ground that the story put forward by the prosecution that they caught hold of the deceased, is not believable.       There is no finding by the High Court while giving   the   benefit   of   doubt   and   acquitting   the   original Accused Nos. 6 and 7 that they were not present at the time
of   the   incident.     Therefore,   the   overt   act   and   the   role attributed to them is not believable.   Even otherwise, so far as original Accused No. 1 and even original Accused No. 2 are concerned, we are of the opinion that the prosecution in the present case has proved beyond doubt the case against them individually for the offence under Section 302 of IPC.

whether  once the case against the original Accused Nos.6 and 7 has not been believed and consequently they are acquitted by giving them benefit of doubt, similar benefit of doubt ought to be given to the other accused, more particularly, Accused No.1 also. ?

Apex court held that against A1 and A2 there was direct evidence and as such the principle not applies where as Looking to the dimension of the room and the role attributed to the original Accused Nos.4 and 5, we are of the opinion that the original Accused Nos. 4 and 5 are required to be acquitted by giving them benefit of doubt, as has been given to the original Accused Nos. 6 and 7 by the High Court.

1
NON­REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.1560 OF 2013
Farida Begum .. Appellant
Versus
State of Uttarakhand .. Respondent
WITH
Criminal Appeal No. 1652 of 2013 and
Criminal Appeal No. 1653 of 2013
J U D G M E N T
M. R. SHAH, J.
1. The present appeals before this Court arise against the
impugned   common   judgment   and   order   dated   22.08.2012
passed by the High Court of Uttarakhand at Nainital passed in
Criminal Appeal Nos. 235/2004, 239/2004 and 261/2004 by
which the High Court has dismissed the said appeals preferred
by the original Accused Nos.1, 2 and 5 and has confirmed the
conviction and sentence imposed by the learned trial Court
2
convicting them for the offences under Sections 302/149 and
147 of the IPC. 
1.1 That, in all, eight accused were tried for the offences
under Sections 147, 148 and 302/149 of the IPC for having
committed murder of one Mukhtar Ahmed.   That, out of the
eight   accused,   three   accused   namely,   Raees   Ahmed   (A4),
Mohd. Ashraf (A2) and Raees Ahmed @ Satna (A5) were also
tried for the offence under Section 25 of the Arms Act.  That,
during   the   trial,   accused   Mohd.   Aslam   (A3)   died   and,
therefore, the case of  the  said  accused  was ordered to  be
abated.  That, on conclusion of the trial, the learned Additional
Sessions Judge, Fast Track Court, Kashipur, District Udham
Singh Nagar (hereinafter referred to as “the trial Court”) held
all the accused guilty for the offences under Sections 302/149
of the IPC and sentenced them to undergo life imprisonment
and a fine of Rs.2,000/­ each and, in case of default in paying
the fine, to undergo one year RI.  The learned trial Court also
convicted   the   original   Accused   No.1   Smt.   Farida   Begum,
original   Accused  No.6  Mohd.   Nasim  @  Churti   and  original
Accused No.7 Idrish for the offence under Section 147 of the
IPC and sentenced them to undergo one year RI.  The learned
3
trial Court also convicted the original Accused No.2 Mohd.
Ashraf, original Accused No.4 Raees Ahmed and the original
Accused No.5 Raees Ahmed   @ Satna for the offences under
Section 148 of the IPC and sentenced them to undergo two
years RI.   That the learned trial Court acquitted the original
Accused Nos.2, 4 and 5 for the offence under Section 25 of the
Arms Act.
1.2   Feeling aggrieved and dissatisfied with the judgment and
order of conviction and sentence imposed by the learned trial
Court, the original Accused No.1 Smt. Farida Begum preferred
Criminal Appeal No.235 of 2004 before the High Court.  The
original Accused No.2 Mohd. Ashraf preferred Criminal Appeal
No.239 of 2004 and original Accused No.5 Raees Ahmed @
Satna preferred Criminal Appeal No.261 of 2004 before the
High   Court.     The   original   Accused   No.7   Idrish   preferred
Criminal   Appeal   No.238   of   2004,   Mohd.   Nasim   @   Churti
original Accused No. 6 preferred Criminal Appeal No.240 of
2004   and   Raees   Ahmed   original   Accused   No.4   preferred
Criminal   Appeal   No.251   of   2004   before   the   High   Court,
challenging their respective conviction and sentence imposed
by the learned trial Court.   That, by the common impugned
4
judgment and order, the High Court has dismissed the appeals
preferred by the original Accused Nos.1,2,4 and 5 and has
confirmed   their   conviction.   The   High   Court,   however,   has
allowed the appeals preferred by the original Accused Nos.6
and 7, i.e. Criminal Appeal Nos.238 of 2004 and 240 of 2004
and has acquitted them by giving them the benefit of doubt.
1.3 Feeling   aggrieved   and   dissatisfied   with   the   impugned
judgment and order passed by the High Court, the original
Accused Nos.1,2 and 5 have preferred the present Criminal
Appeals   being   Criminal  Appeal   Nos.1560/2013,  1652/2013
and 1653/2013 respectively.  At this stage, it is required to be
noted that so far as the original Accused No.4 Raees Ahmed is
concerned, he has not preferred any appeal, however, his case
shall be dealt with hereinbelow.
2.      The case of the prosecution in nutshell is as under:
 That FIR was lodged on 01.07.1999 at about 9.15 PM at
Police Station, Jaspur, Udham Singh Nagar by one Shahid
Hussain against the accused persons for the offences under
Section 302/149, 147, 148 of IPC and Section 25 of the Arms
Act.  It was revealed that the complainant, along with two of
5
his   companions,   Mukhtar   Ahmed   and   Mohd.   Rafi   after
performing their evening Namaj at a Mosque in their town,
reached the house of one Rafiq Ahmed (Dildar) at about 8.00
PM in the evening.  It was further stated that the complainant
and Mukhtar Ahmed often used to visit the house of Dildar
after performing the evening Namaj.   On that day, at about
8.20 PM, Dildar went inside his house to bring tea for his
guests.     During   this   period,   Smt.   Farida   Begum   (A1),
Chairman, Nagar Palika, Jaspur, Mohd. Ashraf, Raees Ahmed,
Raees Ahmed @ Satna, Mohd. Aslam, Naseem @ Churti and
Idrish (all original accused), accompanied by one unknown
person entered the house of ‘Dildar’, where these three guests
were sitting.   Out of these persons, Mohd. Aslam and Idrish
caught   the   hands   of   the   Mukhtar   Ahmed   (deceased),   and
Nasim @ Churti and the unknown person caught hold of the
legs of Mukhtar Ahmed (deceased).    While the complainant
and Mohd. Rafiq objected, Smt. Farida Begam exhorted that
“the son of Darji should be finished and we will see how he
removes me as Chairman of the Nagar Palika”.   It was further
stated that, on this exhortation, Raees Ahmed, Raees Ahmed
@ Satna and Mohd. Ashraf fired from their respective guns
6
which they were carrying.   It was further stated that, out of
three   gun   shots,   two   had   hit   Mukhtar   Ahmed   (deceased),
whereas one did not fire or mis­fired.   It was further stated
that thereafter Smt. Farida Begum threatened that if anyone
names   them   to   the   police   or   approves   the   “no   confidence
motion” against her, he shall also be killed.  That the case was
investigated by the Investigating Officer D. K. Sharma.   He,
along with other Police Officers, reached the spot at about 9.15
PM.     The inquest report was completed by 11.45 PM.   The
Investigating Officer recorded the statements of the witnesses.
After   preparing   the   inquest   report,   other   formalities   were
performed to send the dead body for post­mortem.       The
Investigating Officer also prepared the Panchnama of the place
of incident and also prepared the map.     That, during the
course   of  investigation,   the   respective   accused   came   to   be
arrested.  The Investigating Officer also recovered the firearm
used   in   the   commission   of   the   offence   and   sealed   them.
During the course of the investigation, the Investigating Officer
also collected the incriminating materials.  During the course
of the investigation, the Investigating Officer also collected the
medical evidence as well as the report of the scientific analyst.
7
After conclusion of the investigation, the Investigating Officer
filed charge­sheet for the offences under Sections 147, 148,
302/149 of the IPC and Section 25 of the Arms Act against the
respective   accused.     That   the   learned   Magistrate   took
cognizance and committed the case to the learned Sessions
Court, which was numbered as Sessions Trial Nos. 147 of
2000, 148 of 2000 and 149 of 2000.   At this stage, it is
required to be noted that, as such, Session Trial No. 147 of
2000 was the main case, insofar as Session Trial Nos. 148 and
149 of 2000 were against Raees Ahmed (A4) and Mohd. Ashraf
(A2) for the offences under Section 25 of the Arms Act.  That
all the accused pleaded not guilty and, therefore, all of them
came to be tried for the aforesaid offences.
3. To   bring   home   the   charge   against   the   accused,   the
prosecution examined the following witnesses:
PW1 Shahid Hussain Informant and eyewitness
PW2 Mohd. Rafi Eye­witness
PW3 Mohd. Navi
PW4 Naim Khan
PW5 Dr. J. K. Goel Who conducted the
post­mortem
PW6 Sub­Inspector
Nirvikar
One   of   the
Investigating
Officers
PW7 S.I. D. K. Sharma Investigating
8
Officer
PW8 Sub­Inspector
Suresh   Chandra
Saxena
3.1 That the prosecution also brought on record through the
concerned witnesses the documentary evidence, such as the
first information report, post­mortem report, Forensic Science
Laboratory   report,   Panchnama   of   the   place   of   incident,
Panchnama of the recovery of the firearm used by the original
accused No. 2 etc.
3.2 After closing of the evidence on behalf of the prosecution,
the defence examined the following witnesses:
DW1 Shankar   Dutta
Kandpal
DW2 Ayub Alam
DW3 Naseem   Ahmed,
Jr.   Engineer,
Electricity   Supply
Division,   Jaspur
(Rural)
3.3 That the defence also brought on record the following
documentary evidence:
1) Ex.D20   –   the   report   about   the   electricity   supply   in
Jaspur town on 1.7.1999.
9
2) Ex.D32   –   the   register   of   the   daily   log   sheet   dated
1.7.1999 (found to be having overwriting in the column of time
on it).
4. That,   thereafter,   after   completing   the   evidence,   the
accused persons came to be examined under Section 313 of
the Cr.P.C. on the basis of the material on record against
them.   All the accused denied their involvement in the case
and denied the evidence against them. 
5. Thereafter, after hearing the learned counsel appearing
for the parties and, on appreciation of evidence, the learned
trial Court by a common judgment and order dated 23.7.2004
convicted Smt. Farida Begum (A1), Mohd. Ashraf (A2), Raees
Ahmed   (A4),   Raees   Ahmed   @   Satna   (A5),   Mohd.   Nasim   @
Churti (A6) and Idrish (A7) for the offences under Sections
302/149 IPC and sentenced all of them to imprisonment of life
with a fine of Rs.2,000/­ and, in default of payment of fine, to
undergo   one   year’s   RI.     That   the   learned   trial   Court   also
convicted   the   original   accused   No.   1   Smt.   Farida   Begum,
original Accused No. 6 Mohd. Nasim @ Churti and original
Accused No. 7 Idrish also for the offence under Section 147 of
10
the IPC and also convicted the original Accused No. 2 Mohd
Ashraf,   original   Accused   No.   4   Raees   Ahmed   and   original
Accused No. 5 Raees Ahmed @ Satna for the offence under
Section 148 of the IPC and sentenced them to undergo two
years’ RI.   That the learned trial Court acquitted the accused
persons under Section 25 of the Arms Act.   The case against
the original Accused No. 3 Mohd. Aslam was ordered to be
abated due to his death during the trial.
6. As observed hereinabove, the accused approached the
High Court by filing their respective criminal appeals.   That
the High Court, by the impugned common judgment and order
has dismissed the appeals preferred by the original Accused
Nos. 1, 2, 4 and 5 and maintained the conviction and sentence
imposed by the learned trial Court.  However, the High Court
has acquitted the original Accused Nos. 6 and 7 by giving
them the benefit of doubt.  Hence, the original Accused Nos. 1,
2 and 5 are before this Court by way of present appeals.
7. Shri K.T.S. Tulsi, learned senior counsel, has appeared
on behalf of the original Accused No.1, Shri Deepak Singh,
learned counsel has appeared on behalf of original Accused
11
No.2 and Shri K.K. Tyagi, learned counsel appeared on behalf
of original Accused No.5.
7.1      Heard Shri Rajiv Nanda, learned counsel appearing on
behalf   of   the   respondent   State   of   Uttarakahand   and   the
learned   counsel   appearing   on   behalf   of   the   original
Complainant in each of the appeals.
8.    SUBMISSIONS MADE BY SHRI K.T.S. TULSI, LEARNED
SENIOR   COUNSEL   APPEARING   ON   BEHALF   OF
ORIGINAL ACCUSED NO.1
Shri  Tulsi learned senior counsel appearing on behalf of
original Accused No.1 has vehemently submitted that, in the
facts and circumstances of the case, both the High Court as
well   as   the   learned   trial   Court   have   materially   erred   in
convicting the original Accused No.1 for the offences under
Sections 302  read with Section 149 and also under Section
147 of the IPC.
8.1               It   is   further   submitted   by   the   learned   counsel
appearing   on   behalf   of   the  original   Accused   No.1   that   the
conviction   by   both   the   Courts   below   is   based   upon   the
depositions of PWs.1 and 2 whose credibility is very doubtful
and both of them are not believable.  It is further submitted
12
that,   as   such,   there   are   material   contradictions   in   the
depositions of PWs.1 and 2 and other witnesses and, therefore,
both the Courts below have materially erred in convicting the
original Accused No.1 relying upon the depositions of PWs.1
and 2.
8.2      The learned counsel for the original Accused No. 1 has
further submitted that, as such, the prosecution has failed to
prove   the   motive   and   the   reason   for   the   Accused   No.1   to
kill/commit the murder of deceased Mukhtar Ahmed.
8.3.       It is submitted that the enmity with PW.1 Shahid
Hussain could not have been accepted as the reason for the
original Accused No.1 exhortation that Mushtak Ahmed be
shot.  It is submitted that, therefore, as the prosecution has
failed to prove the motive so far as the enmity between the
original Accused No.1 and deceased is concerned, both the
Courts below have materially erred in convicting the original
Accused No.1. 
8.4     It is further submitted by the learned counsel appearing
on behalf of the original Accused No.1 that both the Courts
below have materially erred in not properly appreciating the
fact that the dimension of the room in which the incident had
13
taken place was such that it was impossible to believe that 11
persons were present in the room, when the incident allegedly
took place.   It is further submitted that, therefore, the story
put forward by PWs.1 and 2 and the prosecution is totally
unbelievable and, therefore, the impugned judgment and order
of conviction and sentence insofar as convicting the original
Accused No.1 deserves to be quashed and set aside. 
8.5 It is further submitted that, as such, there are material
contradictions so far as the electricity at the time of incident
was or not.  It is submitted that, in fact, the accused has been
able   to   prove   by   leading   the   cogent   evidence,   namely,
examining D­3 – the officer of the Electricity Supply Division
that at the time of the alleged incident there was no electricity
supply.     It   is   further   submitted   that   the   same   has   been
established   and   proved   even   by   producing   documentary
evidences Exh.D­20/D­34.   It is submitted that, therefore, it
was   not   possible   for   any   of   the   prosecution   witnesses   to
identify the accused.  It is submitted that, therefore, both the
Courts below have materially erred in convicting the original
Accused No.1.
14
8.6   It is further submitted that even the original accused
No.1was successful in proving by examining DW­2, the son of
the owner of house, that the original Accused No.1 was not
present at the time of alleged incident.   It is submitted that
DW­2 in his deposition categorically stated that the original
Accused No.1 and others were not involved in the murder of
deceased Mushtak Ahmed.
8.7       It is further submitted that the High Court ought to
have acquitted the original Accused No.1 also by giving her the
benefit of doubt,  as was given to original Accused Nos.6 and
7.   It is submitted that once the case against the original
Accused Nos.6 and 7 has not been believed and consequently
they are acquitted by giving them benefit of doubt, similar
benefit of doubt ought to be given to the other accused, more
particularly, Accused No.1 also.
8.8       Making the above submissions and relying upon the
decisions of this Court in the case of Jainul Haque v. State
of   Bihar  (1974)   3   SCC   543;  Pandurang   Chandrakant
Mhatre   v.   State   of   Maharashtra  (2009)   10   SCC   773;
Vaijayanti v. State of Maharashtra (2005) 13 SCC 134 and
15
Hoshiar Singh v. State of Punjab 1992 Supp. (1) SCC 413, it
is   requested   to   allow   the   present   appeals   and   acquit   the
original Accused No. 1 for the offences for which she has been
convicted.
9. Shri Deepak Singh, learned counsel appearing on behalf
of original Accused No. 2 has adopted the submissions made
by   Shri   K.T.S.   Tulsi,   learned   senior   counsel   appearing   on
behalf of original Accused No. 1 and, as such, has reiterated
what was submitted on behalf of original Accused No. 1.  In
addition,   learned   counsel   appearing   on   behalf   of   original
Accused No. 2 has also relied upon the decisions of this Court
in  Mohinder   Singh   v.  State  of  Punjab  AIR 1955 SC 762;
Willie  (William)  Slaney   v.  State  of  Madhya  Pradesh  AIR
1956 SC 116; Balaka Singh v. State of Punjab (1975) 4 SCC
511; Phani Bhusan Das v. State of West Bengal (1994) SCC
(Cri) 1752 and  Suresh Rai v. State of Bihar  (2000) 4 SCC
84.
9.1 Making above submissions and relying upon the above
decisions,   it   is   requested   to   allow   the   appeal   preferred   by
16
original Accused No. 2 and acquit him for the offences for
which he has been convicted.
10. Shri K.K. Tyagi, learned counsel appearing on behalf of
original Accused No. 5, has vehemently submitted that, so far
as   original   Accused   No.   5  is   concerned,   as  looking   to  the
dimension of the room which was hardly 10’ x 10’, it was not
possible for the original Accused Nos. 4 & 5 to fire.   It is
further submitted that, therefore, the story put forward by the
prosecution   that   the   original   Accused   Nos.   4   and   5   were
present and they fired, is unbelievable. 
10.1 It is further submitted by the learned counsel appearing
on behalf of original Accused No.5 that, even otherwise, the
prosecution has  failed to prove by leading cogent  evidence
that, in fact, the original Accused Nos. 4 and 5 fired from the
firearms.   It is submitted that neither the firearm alleged to
have   been   used   by   the   original   Accused   No.   5   had   been
recovered, nor even the bullet was recovered/seized.     It is
submitted that even there is no scientific evidence like ballistic
report on record which would suggest and/or prove that, in
fact, original Accused No. 5 fired from the firearm, as alleged
by the prosecution and as stated by PWs 1 and 2. It is further
17
submitted that, as such, the original Accused Nos. 4 and 5
both are entitled to be acquitted by giving them benefit of
doubt on the very ground on which the High Court acquitted
the original Accused Nos. 6 & 7 by giving the benefit of doubt.
10.2 It is further submitted that, as such, even the original
Accused No. 5 is acquitted for the offence under the Arms Act
and, therefore, also both the Courts below have materially
erred in convicting the original Accused No. 5.
10.3 Making above submissions, it is requested to allow the
appeal preferred by the original Accused No. 5 and quash and
set aside the judgment and order passed by both the Courts
below convicting the original Accused No. 5.
11. Shri Rajiv Nanda, learned counsel appearing on behalf of
the State of Uttarakhand and the learned counsel appearing
on   behalf   of   the   original   complainant   have   supported   the
impugned   judgment   and   order   of   conviction   and   sentence
imposed by the learned trial Court and confirmed by the High
Court, convicting the original Accused Nos. 1, 2 and 5 for the
offences under Sections 302/149 IPC and other offences for
which they are convicted.
18
11.1 It is further submitted by the learned counsel appearing
for the State that, so far as the original Accused No. 1 is
concerned, the motive for her to exhort the deceased has been
established and proved and the same has been discussed by
the learned trial Court as well as the High Court in detail.
11.2 It   is   further   submitted   that,   even   otherwise,   as   has
rightly been observed by the High Court and the learned trial
Court that in view of the overwhelming evidence on record,
more particularly, the depositions of PWs 1 and 2 the eye
witnesses, the presence of original Accused Nos. 1 and 2 is
established and proved beyond doubt and the prosecution has
been   successful   in   proving   the   case   against   the   original
Accused Nos. 1 and 2, the motive may be inconsequential. It is
submitted that, as such, the motive by the original Accused
No. 1 has been established and proved beyond doubt.
11.3 It is further submitted by the learned counsel for the
State   that,   in   the   present   case,   the   prosecution   has   been
successful in proving the case against the original Accused
Nos. 1 and 2 by leading cogent evidence, more particularly, by
examining PWs 1 and 2 and other witnesses. It is submitted
that both PWs 1 and 2 have fully supported the case of the
19
prosecution and even they are fully cross­examined by the
defence, however, in the cross­examination, the defence has
not been successful in proving anything contrary to what the
aforesaid two witnesses have stated in their examination­inchief.
11.4 It   is   further   submitted   that,   as   such,   there   are   no
material contradictions in the depositions of PWs 1 and 2, as
alleged, on behalf of the original Accused Nos. 1and 2.
11.5 Now, so far as the submissions on behalf of the original
Accused Nos. 1 and 2 that at the time of incident there was no
electricity supply and reliance placed upon the deposition of
DW­3,   Junior   Engineer   of   the   Electric   Supply   Division   is
concerned,   it   is   vehemently   submitted   that,   as   such,   the
learned trial Court as well as the High Court have given cogent
reasons to disbelieve the deposition of DW­3.  It is submitted
that, as rightly observed by the Courts below, DW­3 deposed
in favour of the Accused No. 2 to favour the accused persons.
It is submitted that his conduct is very much doubtful and
even it is established and proved from the cross­examination
of the said witness that the document Ex.D­34 was concocted
and false one and there was interpolation by mentioning the
20
specific time, only with a view to suit the case of the accused.
It is submitted that, therefore, the DW­3 is not believable at all
and, as such, both the Courts below have rightly not believed
the   story   put   forward   by   the   accused   that   there   was   no
electricity supply at the time of the incident.
11.6 It is further submitted that even the prosecution has
been successful in proving by leading cogent evidence that at
the time of the incident there was electricity supply.
11.7 Now, so far as the submission made on behalf of the
original Accused No. 5 that he shall also be entitled for the
benefit of doubt and is entitled to the acquittal on the very
ground on which the other accused ­ original Accused Nos. 6
& 7 came to be acquitted by the High Court is concerned, it is
submitted that the case against the original Accused Nos. 6 &
7 and the original Accused Nos. 4 & 5 will be different and is
not   comparable   and,   therefore,   merely   because   the   other
original  Accused Nos. 6 & 7 are acquitted  by giving them
benefit  of doubt, the other accused, more particularly, the
original Accused Nos. 4 and 5 shall not be entitled to acquittal.
11.8 It is further submitted that even the original Accused
No.4 has not preferred any appeal against his conviction and
21
sentence and has accepted the judgment and order passed by
both the Courts below convicting him for the offences under
Sections 302/148 IPC.
11.9 Now so far as the submissions on behalf of the accused
that  as the  accused persons  came to be acquitted for the
offence under the Arms Act and, therefore, the accused are
entitled to be acquitted, it is submitted that merely because
the accused are acquitted for one offence, ipso facto, they shall
not be entitled to the acquittal for the other offences, if the
other offences are proved against the accused.  It is submitted
that, in the present case, both the Courts below have rightly
convicted the accused for the offences under Sections 302/149
and 302/148 of the IPC, more particularly, relying upon the
depositions of PWs 1 and 2 and on appreciation of the entire
evidence on record.
11.10  Making above submissions, it is requested to dismiss
the present appeals.
12.  Learned   counsel   appearing   on   behalf   of   the   original
complainant   has   fully   supported   the   judgment   and   order
passed   by   both   the   Courts   below   convicting   the   original
accused, by further submitting that even the motive by the
22
original   Accused   No.   1   to   bestow   the   deceased   has   been
established and proved, which has been elaborately discussed
by the learned trial Court in paragraph 48.   Therefore, it is
requested to dismiss the appeals preferred by the accused.
13. Heard   the   learned   counsel   appearing   on   behalf   of
respective   parties   at   length.     We   have   gone   through   and
considered the impugned judgment and order passed by the
High Court as well as the learned trial Court.  We have also
considered in detail and reappreciated the entire evidence on
record.
14. Now, so far as the impugned judgment and order passed
by the High Court maintaining the conviction and sentence
imposed   by   the   learned   trial   Court,   while   convicting   the
original   Accused   No.   1   for   the   offences   under   Sections
302/149 and Section 147 of the IPC is concerned, we have
heard the learned counsel appearing on behalf of the accused
as well as the State and have reappreciated the evidence on
record.     For the reasons stated hereinbelow, we are of the
opinion that both the Courts below have not committed any
error in convicting the original Accused No. 1.
23
14.1 The presence of original Accused No. 1 at the time of the
incident has been established and proved beyond doubt by the
prosecution.  The witnesses, more particularly, PWs 1 and 2,
in no uncertain words, have clearly stated that the original
Accused No. 1 came to the place of the incident and that she
started  shouting and  told  to kill  the deceased.     The  role
attributed to the original Accused No. 1 clearly suggests that
the original Accused No. 1 committed the offence punishable
under Sections 302/149 IPC.   PW1 has categorically stated
that   the   original   Accused   No.   1   Smt.   Farida   Begum   came
inside the room from the eastern side and, from the northern
door, the other accused entered.  PW1 categorically stated that
the original Accused No. 1 exhorted and said that the deceased
must be finished and further stated that she will see how the
“no   confidence   motion”   is   passed   against   her.       The   said
witness has further stated that, immediately thereafter, Mohd.
Ashraf who was carrying Tamancha shot at Mukhtar Ahmed
(deceased).   The deposition of the said witness PW1 has been
further supported by the deposition of PW2 Mohd. Rafi.  Both
the aforesaid two witnesses are thoroughly cross­examined by
24
the   defence,   however,   nothing   adverse   to   the   case   of   the
prosecution has been brought from the cross­examination. 
14.2 Now,   so   far   as   the   submission   on   behalf   of   original
Accused No. 1 that the prosecution has failed to prove the
motive to kill the deceased by the original Accused No. 1 is
concerned, at the outside, it is required to be noted that it has
come on record that the original Accused No. 1 was having
enmity with the deceased Mukhtar Ahmed due to municipality
politics.   PW1, in his evidence, has categorically stated that
the deceased Mukhtar Ahmed was elected as the Chairman of
the Municipality, Jaspur in the election prior to the election at
the time of occurrence and that his wife Smt. Sameena Begum
had contested the next election for the post of the Chairman
against Smt. Farida Begum and Sameena Begum had lost that
election.  He has further stated that Smt. Sameena Begum, the
wife of the deceased, had challenged the election of A­1 in the
court by filing an election petition.  That Smt. Farida Begum
(A1) was facing ‘no confidence motion’.       The Investigating
Officer   PW7   had   categorically   stated   that   as   the   deceased
Mukhtar   Ahmed   was   opposing   the   actions   taken   by   the
original Accused No. 1 Farida Begum in the municipality and
25
that Smt. Farida Begum was the Chairman and Mohd. Aslam
was the Councillor in the Municipality and that the deceased
Mukhtar Ahmed had got an election petition filed through his
wife against   Smt. Farida  Begum,  it  could  be  the  cause  of
committing the murder of Mukhtar Ahmed by the accused
persons.
14.3 Even otherwise, it is required to be noted that, in the
present case, the presence of the Accused Nos. 1 and 2 at the
time of the incident has been established and proved beyond
doubt.    The role attributed to them has also been established
and proved by the prosecution by leading cogent evidence.
The testimony of the eye witnesses fully supports the case of
the   prosecution.     Under   these   circumstances,   as   rightly
observed by the learned trial Court and confirmed by the High
Court,   the   aforesaid   defence   shall   not   help   the   accused
persons.
14.4 Reliance has been placed upon the deposition of DW3,
the Junior Engineer of the Electricity Supply Department, by
the learned counsel appearing on behalf of original Accused
Nos. 1 and 2 in support of their case that, at the time of the
incident, there was no electricity supply and, therefore, it was
26
not possible for PWs 1 and 2 to identify the accused persons.
At the outset, it is required to be noted that, both the learned
trial Court and the High Court have disbelieved the deposition
of DW3.  From the cross­examination of DW­3, it appears that
he   had   concocted   the   document   Ex.D­32   and   that   there
interpolation by inserting the time which suits the accused.
On re­appreciation of the deposition of DW­3, we are also of
the   opinion   that   the   said   witness   is   not   reliable   and
trustworthy and that he had given the deposition only with a
view to favour the accused persons.   In the cross­examination
of DW­3, the prosecution has succeeded in proving that there
was interpolation and overwriting in Ex.32 on the timing and
20.15 PM has been shown as 20.30 PM.     Thus, as rightly
observed by the learned trial Court as well as the High Court,
the defence had made an unsuccessful attempt to prove that
there was no electricity supply at the time of incident and that
DW­3 had attempted to favour the accused persons for some
special   reasons   and   had   tempered   with   the   departmental
records.     We   are   in   complete   agreement   with   the   findings
recorded by the learned trial Court and confirmed by the High
Court while not believing DW­3.
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14.5 Now,   so   far   as   the   submission   made   by   Shri   Tulsi,
learned   senior   counsel   appearing   on   behalf   of   the   original
Accused No. 1 that there are contradictions in the deposition
of PWs 1 and 2 and DW­2 is concerned, on considering the
entire deposition of PWs 1 and 2, we do not find any material
contradictions which may destroy the case of the prosecution.
Sometime   there   may   be   minor   contradictions.     However,
unless those contradictions are such material contradictions
which may destroy the case of the prosecution, the benefit of
such contradictions cannot be given to the accused.   In the
present case, we do not find any material contradictions in the
deposition of PWs 1 and 2 which may destroy the case of the
prosecution.
14.6 Now, so far as the submission made on behalf of the
original Accused No. 1 that as the original Accused Nos. 6
and 7 are acquitted by the High Court and, therefore, the
number of other accused shall be five or less than five and,
therefore, the conviction of the original Accused No. 1 for the
offence punishable under Section 302 with the aid of Section
149 IPC, is not sustainable is concerned, the same has no
substance.  It  is  required  to  be  noted  that,   from  the  very
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beginning,   the   case   of   the   prosecution   was   that   7   to   8
persons entered the house with a common intention to kill
the deceased.     It is required to be noted that the original
Accused Nos. 6 and 7 are acquitted by giving the benefit of
doubt and on the ground that the story put forward by the
prosecution that they caught hold of the deceased, is not
believable.       There is no finding by the High Court while
giving   the   benefit   of   doubt   and   acquitting   the   original
Accused Nos. 6 and 7 that they were not present at the time
of   the   incident.     Therefore,   the   overt   act   and   the   role
attributed to them is not believable.   Even otherwise, so far
as original Accused No. 1 and even original Accused No. 2 are
concerned, we are of the opinion that the prosecution in the
present case has proved beyond doubt the case against them
individually for the offence under Section 302 of IPC.   
14.7 Now,   so   far   as   the   reliance   placed   by   the   learned
counsel appearing on behalf of the original Accused Nos. 1
and   2   upon   the   decisions   of   this   Court   referred   to
hereinabove is concerned,  we are of the opinion  that,  on
facts, the said decisions shall not be applicable to the facts of
the case, more particularly, the overwhelming evidence in the
29
form of depositions of PWs 1 & 2 and PW7, which prove the
case against the original Accused Nos. 1 and 2 beyond doubt.
15. It   is   further   required   to   be   noted   that   so   far   as   the
original   Accused   No.   2   is   concerned,   PWs   1   and   2   have
categorically stated that, along with Farida Begum, the original
Accused No. 2 also entered and he fired from his firearm.   His
presence   and   the   overt   act   attributed   to   him   has   been
established and proved by the prosecution beyond doubt.  The
firearm used in the commission of the offence by the original
Accused No. 2 has been recovered at the instance of original
Accused No. 2 himself.  There is a direct evidence in the form
of the eye witnesses ­ PWs 1 and 2, which fully supports the
case of the prosecution even after thorough cross­examination
by the defence.
16. In view of the further reasons stated above, we are of the
opinion that the High Court as well as the learned trial Court
have rightly convicted the original Accused Nos. 1 and 2.
17. Now, so far as the conviction and sentence imposed by
the   learned   trial   Court   and   confirmed   by   the   High   Court
convicting the original Accused No. 5 is concerned, we are of
30
the opinion that the original Accused No. 5 shall be entitled to
be   acquitted   by   giving   the   benefit   of   doubt   on   the   same
grounds   on   which   the   High   Court   acquitted   the   original
Accused   Nos.   6   and   7   by   giving   them   benefit   of   doubt.
Looking to the dimension of the room and the role attributed
to the original Accused Nos.4 and 5, we are of the opinion that
the original Accused Nos. 4 and 5 are required to be acquitted
by giving them benefit of doubt, as has been given to the
original Accused Nos. 6 and 7 by the High Court.   At this
stage, it is required to be noted that so far as the acquittal of
the   original   Accused   Nos.   6   and   7   by   the   High   Court   is
concerned, the same has been accepted by the State and same
has attained the finality.  
17.1 It is also required to be noted that even otherwise so far
as Accused No. 5 is concerned, the prosecution has even failed
to prove beyond doubt that in fact Accused No. 5 fired from his
firearm, which as such has missed, as alleged.   There is no
evidence on record in the form of recovery of weapon or even
the   missed   bullet.     Therefore   also   A­5   is   entitled   to   be
acquitted by giving him benefit of doubt.
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17.2 At this stage, it is also required to be noted that so far as
the original Accused No. 4 is concerned, he has not preferred
any appeal against his conviction and sentence.   However,
there   may   be   number   of   reasons   for   that,   including   the
financial constraint.     However, we cannot loose sight of the
fact that his case is similar to that of the original Accused No.
5 and even original Accused Nos. 6 and 7.   Therefore, we take
suo   moto  cognizance   and   we   are   of   the   opinion   that   the
original Accused No. 4 is also entitled to acquittal by giving
him benefit of doubt, as the case of the original Accused No. 4
is   similar   to   that   of   original   Accused   No.   5   and   even   the
original Accused Nos. 6 and 7.
18.  In view of the above and for the reasons stated above,
Criminal   Appeal   No.   1560   of   2013   preferred   by   original
Accused No. 1 and Criminal Appeal No. 1652 of 2013 preferred
by the original Accused No. 2 stand dismissed by confirming
the judgment and order passed by the learned trial Court and
confirmed by the High Court convicting the original Accused
Nos. 1 and 2 for the offences under Sections 302/149 and
Sections 147 & 148 IPC.  The conviction and sentence of the
original Accused Nos. 1 and 2 imposed by the trial Court and
32
confirmed by the High Court, is hereby maintained.  It appears
that the original Accused No. 1 (Smt. Farida Begum) is on bail.
On her conviction and sentence being confirmed by this Court,
her bail bond shall stand cancelled and she shall surrender
before   the   Court   concerned   to   serve   out   the   remaining
sentence within a period of two weeks from the date of this
judgment.
18.1 In view of the above and for the reasons stated above, the
Criminal Appeal No. 1653 of 2013 preferred by the original
Accused No. 5 is hereby allowed.  The original Accused Nos. 4
and 5 (Raees Ahmed and Raees Ahmed @ Satna) shall stand
acquitted for the offences for which they were convicted by the
learned trial Court and confirmed by the High Court by giving
them benefit of doubt.   The original Accused Nos. 4 and 5
(Raees Ahmed and Raees Ahmed @ Satna) shall be released
forthwith, if not required in any other case.
…………………..……………………J.
(N. V. RAMANA)
…………………………………..…….J.
(MOHAN M. SHANTANAGOUDAR)
…………………..……………………J.
(M. R SHAH)
New Delhi,
December 4, 2018