REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. OF 2017
(Arising out of S.L.P.(Crl.)No.8717 of 2014)
Arun Kumar ….Appellant(s)
VERSUS
The State of Bihar & Ors. ….Respondent(s)
J U D G M E N T
Abhay Manohar Sapre, J.
1) Leave granted.
2) This appeal is filed by the son of the deceased-Sheo Kumar Pati
Tiwari against the final Order dated 21.04.2014 passed by the High
Court of Judicature at Patna in Criminal Appeal(D.B.) No.1030 of 2013
whereby the Division Bench of the High Court dismissed the appeal
filed by the appellant herein under Section 372 of the Code of
Criminal Procedure, 1973 (hereinafter referred to as “the Code”)
against the acquittal of respondent Nos.2-5 of the charges under
Sections 302/34, 201 and 307 of the Indian Penal Code, 1860
(hereinafter referred to as “IPC”) vide judgment dated 17.09.2013
passed by the Ad-hoc Additional District & Sessions Judge-III, Siwan
in Sessions Trial No.32 of 1993.
3) The prosecution case, in short, is that on 24.07.1991, after
having dinner at 9.00 p.m., the informant-Uma Pati Tiwari along with
his elder brother Ram Tapasya Pati Tiwari and nephew Sheo Kumar Pati
Tiwari were talking with each other at the Bathan situated at Village
Kashidat Diara District Siwan, Bihar. At that time, Ram Naresh
Chaudhary with Gun, Sukhraj Mallah with Gun, Janardan Ahir with Lathi,
Chandeshwar Kurmi with Gun, Anil Singh with Gun, Balinder Ahir with
Lathi, Naga Bhar with Lathi and Dwarika Chaudhary with Lathi came
there in group and attacked them. Janardan Ahir and Balinder Ahir hit
on the right hand of the informant with lathi five times and Sukhraj
Mallah fired gun shot on Ram Tapsya Pati Tiwari, the brother of the
informant. Ram Naresh Chaudhary, Anil Singh and Sukhraj Mallah fired
bullets from gun at Shiv Kumar Pati Tiwari. The informant and the
people with him fell down being injured. Shiv Kumar Pati Tiwari died
and the accused persons fled away with his dead body towards South.
The informant had injuries on his right hand and back and Ram Tapsya
Pati Tiwari had gun shot injury on his left eye, left ear and also at
nose. The other villagers saw the incident.
4) The cause of the incident was that some days ago, the accused
persons had cut and stolen away the barbed wire of the field of the
informant upon which, they scolded the accused persons.
5) The informant stated that he had recognized the accused persons
in moon light and torch light. The injured persons were admitted in
Sadar Hospital, Siwan.
6) On 25.07.1991, at about 10.00 a.m., Mr. Mahender Pandey, Thana
In-charge, after hearing about the incident, came in the Hospital and
recorded the statement of the deceased’s father in his station diary
at entry No. 393. Thereafter, sub-Inspector Mr. J.N. Prasad proceeded
to inspect the scene of the crime, collected sample of blood stained
earth etc. and recorded the statements of the witnesses. At 1.00 p.m.
Mr. A.A. Khan-Sub-Inspector recorded the statement of the deceased’s
uncle in the Hospital.
7) On the basis of the station diary entry No.393, Sub-Inspector
Mr. J.N. Prasad registered FIR No.42/1991 dated 25.07.1991 was lodged
against eight accused persons in Assaon Police Station. The accused
persons were apprehended.
8) After investigation, charge-sheet No.32/91 was filed on
21.10.1991 against Ram Naresh Chaudhary, Balvinder Ahir, Anil Singh,
Sukhraj Mallah, Chandreshwar Kurmi, Janardan Ahir, Naga Bhar and
Dwarika Chaudhary.
9) Subsequently, a supplementary charge-sheet No.3 of 1992 was
filed on 09.06.1992 against Anil Singh, Naga Bhar and Sukhraj Mallah,
Chandreshwar Kurmi, Janardan Ahir and Dwarika Chaudhary.
10) After cognizance on 17.09.1992, the trial of three accused
Sukhraj Mallah, Chandreshwar Ahir and Dwarika Chaudhary was separated.
Thereafter the trial of Naga Bhar was also separated.
11) Thereafter, on the basis of original charge sheet, Sessions
Trial No.32/93 and on the basis of the supplementary charge sheet
Sessions Trial No.76/93 was lodged. Both the trials were tried
together.
12) Charges were framed against the accused persons. Respondent
Nos. 3 & 4 were charged with offences punishable under Sections
201/302/34 IPC. Respondent Nos. 2 & 5 were charged with the offences
punishable under Sections 323/324/325/307 IPC. All the four accused
were charged with the offences of rioting and committing murder with
common object. The prosecution examined 13 witnesses.
13) By judgment dated 17.09.2013, the Trial Court acquitted all the
accused persons of the offences charged against them.
14) Challenging the said judgment, the son of the deceased filed
appeal before the High Court.
15) By impugned order, the High Court dismissed the appeal filed by
the appellant.
16) Hence, the appellant has filed this appeal by way of special
leave petition before this Court.
17) Having heard the learned Counsel for the parties and on perusal
of the record of the case including perusing the written submissions
filed by the respondents, we are inclined to allow the appeal in part
and remand the case to the High Court for hearing the appeal on merits
afresh in accordance with law.
18) We are of the considered opinion that the appeal needs to be
remanded to the High Court for its hearing on merits afresh in
accordance with law. The need to remand the case has occasioned due to
the reason that we find that the High Court dismissed the appeal
cursorily and by a cryptic order.
19) The High Court though in the impugned order referred to the
evidence of some witnesses but neither referred and nor appreciated
much less discussed the entire evidence adduced by the prosecution of
as many as 13 witnesses in proper perspective. In other words, we find
that the High Court did not exercise its appellate powers while
hearing the appeal in the manner it ought to have and dismissed the
appeal finding no fault in the order impugned before it by observing
in its conclusion that since the view taken by the Sessions Court is a
plausible view, the same does not call for any interference by the
High Court.
20) It is true that the appeal before the High Court was against the
acquittal order of the Sessions Judge whereby all the accused charged
for the offences punishable under Sections 302/34, 201 and 307 of IPC
stood acquitted yet, in our considered view, the law laid down by this
Court on the question of the powers of the Appellate Court while
hearing the appeal arising out of acquittal order of the Sessions
Judge in Lalit Kumar Sharma & Ors. Vs. Superintendent & Remembrancer
of Legal Affairs, Govt. of West Bengal, 1989 Supp(2) SCC 140 should
have been kept in consideration by the High Court while hearing the
appeal and further the High Court should have called for the record of
the case from the Trial Court as provided under Section 385 (2) of the
Code which it seems was not called for.
21) It is apposite to quote the law laid down by this Court in the
case of Lalit Kumar (supra).
“8. Before dealing with the contentions raised by the respective
learned counsel, we shall examine whether the judgment of the
trial court was manifestly perverse and wholly unreasonable,
compelling the appellate court to step in with the order of
acquittal. It is now well settled that the power of an appellate
court to review evidence in appeals against acquittal is as
extensive as its powers in appeals against convictions, but that
power is with a note of caution that the appellate court should
be slow in interfering with the orders of acquittal unless there
are compelling reasons to do so. This Court in Mathai Methews v.
State of Maharashtra1 has pointed out that (SCC pp. 773-74, para
5):
“if a finding reached by the trial Judge cannot be said to
be an unreasonable finding, then the appellate court should
not disturb that finding even if it is possible to reach a
different conclusion on the basis of the material on
record.”
Regarding the power of the appellate court in dislodging a
finding of acquittal of a trial court, there are plethora of
decisions, but we feel that it is not necessary for us to refer
to all those decisions because we are of the firm view that the
impugned judgment is liable to be set aside even on the ground
that the appellate court has gone wrong in setting aside the
order of acquittal on the re-appraisal of the available
evidence.”
22) As mentioned above, since the High Court decided the appeal
without keeping in view the law laid down by this Court quoted supra,
it has committed an error and hence it is not possible for this Court
to sustain the impugned order which deserves to be set aside.
23) This Court cannot undertake the exercise of discussing and
appreciating the evidence as a first Appellate Court and secondly,
having regard to the nature of charges leveled against the accused
persons and the evidence adduced by the prosecution, we consider it
just and proper to request the High Court to decide the appeal afresh
on merits keeping in view the law laid down by this Court in the case
of Lalit Kumar Sharma (supra).
24) We have also perused the written submissions filed by the
respondents as permitted by the Court. However, we are not persuaded
to accept the submissions of the respondents urged in their written
submissions for the reasons mentioned above. In our opinion, the
cursory manner in which the High Court disposed of the appeal does not
command us to uphold the impugned order.
25) In any event, the respondents (accused) would have full
opportunity to place their case before the High Court on remand and
urge all their submissions in support of the order of the Sessions
Judge on the merits.
26) Before parting with the case, we consider it proper to make it
clear that we have not recorded any finding on the merits of the case
having formed an opinion to remand the case to the High Court for
hearing the appeal afresh on merits on the grounds mentioned above.
27) The High Court will, therefore, decide the appeal strictly in
accordance with law uninfluenced by any of our observations made in
this order.
28) In view of foregoing discussion, the appeal succeeds and is
accordingly allowed in part. Impugned order is set aside. The criminal
appeal out of which this appeal arises is accordingly restored to its
original file to enable the High Court to decide the appeal, as
directed, expeditiously.
………...................................J.
[R.K. AGRAWAL]
…...……..................................J.
[ABHAY MANOHAR SAPRE]
New Delhi;
May 01, 2017
