JUDGMENT B.L. Yadav, J.
1. These two analoguous appeals (Criminal Appeal No. 715 of 3979 -Ram Parshan Shahi v. State of U.P. and Government Appeal (against accquittal) No. 1708 of 1979 State of U.P. v. Ram Nayan (hereinafter referred to as the first appeal and second appeal respectively), are directed against the same judgment and order dated 19-2-1979 rendered by the III Additional District and Sessions Judge, Gorakhpur in Sessions Trial No. 448 of 1976, (for the offence under Section 302, 307, 147, 148, 149, and 324, I.P.C. and Section 27 of the Arms Act), convicting the appellants in the first appeal to the life imprisonment under Section 302, I.P.C. and for three years R.I. under Section 307, I.P.C. and 1½ years R.I. under Section 324, I.P.C. and six months R.I. under Section 27 of the Arms Act but these sentences were to run concurrently, and acquitting the respondent Ram Nayan and 6 others in the second appeal it is according convenient to dispose them of by a common judgment.
2. The portrayal of the essential facts as contained in the F.I.R. are that in the occurrence that took place on 6-6-1976 at about 11 a.m. in village Garhwa Rampur, PPS. Barhaiganj, district Gorakhpur, one Nand Kishore Shahi was shot dead and Jangeshwar Shahi, Kedar Shahi and Vijai Pratap Shahi received injuries and the common object of the accused was to commit murder of Nand Kishore Shahi and to cause injuries to Jangeshwar Shahi, Kedar Shahi and Vijai Pratap Shahi. The prosecution case further was that Ram Parshan Shahi and Ganendra Shahi, appellants No. 1 and 2 in the first appeal were armed with licenced gun and spear respectively and they along with other accused including the accused in second appeal caused injuries to the deceased and other injured persons.
3. A Government appeal, the second appeal has been preferred by the appellant, State of U.P. against Ram Nayan and 6 others.
4. The respondents in the Government Appeal were charged under Section 302 read with Section 307, I.P.C. with the aid of Section 149, I.P.C. and all the accused were, however, charged under Section 323 read with Section 149, I.P.C. for having caused simple hurt to Vijai Pratap Shahi, Raj Ballabh Shahi and Bipin Bihari Shahi. Ram Samujh Shahi is the son of Vindhyachal Shahi. Ram Parshan Shahi and Gyanendra Shahi and Pranpati Shahi are alleged to be the relations of each other. Similarly, Abhay Shahi and Jeobodh Shahi are also relations The informant Vijai Pratap Shahi is the nephew of Raj Ballabh Shahi whose son is Ashok Shahi.
5. The prosecution case precisely stated was that the acused Jeobodh Shani happened to be Pradhan of the village Garhwa, Rampur against whom a vote of no confidence was carried out successfully at the instance of the complainant Vijai Pratap Shahi, who was later on elected in place of the ousted Pradhan and the candidate set up by Ram Parashen Shahi, appellant No. 1 in the first appeal was defeated. They developed bad blood on account of the no confidence motion against the earlier Pradhan. In the morning of 6-6-1975 one Ashok Shahi, cousin of the complainant Vijai Pratap Shahi, took his cows for grazing towards the north-west of his village. The appellants in the first appeal gave lathi blows to the cows of Ashok Shahi and the hot words were exchanged between appellants in first appeal and Ashok Shahi. A report of this incident was lodged at the police station (vide Ext. Ka-7) by Dilip Shahi. Ext-Ka-8 is the extract of the General Diary. With a view to teach lessons to Ashok Shahi, the accused persons formed a common object. They appeared at the house of Raj Ballabh Shahi. The appellant No. 1 in the first appeal was armed with the licensed gun and the second appellant in that appeal was armed with spear. The respondents in the second appeal were armed with lathis. At about 11 a.m. Ram Samugh Shahi from the side of complainant raised a slogan of "Jain Bajrang Bali", and exhorted Ram Parshan Shahi, appellant No. 1 in the first appeal to fire from his gun killing his adversary whatever might be the result, and on that exhortation he fired from his gun which hit Nand Kishore Shahi, the deceased and the cousin brother of the complainant. The other gun shot hit Janageshwar Shahi and Bipin Bihari Shahi. When the complainant Vijai Pratap Shahi came forward to rescue members of his party, the second appellant in the first appeal assaulted him spear. He also assaulted Raj Ballabh Shahi with lathi. This occurrence was witnessed by Subhash, Kapil Deo, Jokhan and Hardeo Shahi. The appellants in the first appeal and the respondents in the second appeal thereafter went towards the south to repeat it again. Nand Kishore Shahi was murdered in this incident whereas Bipin Behari Shahi and Jangeshwar Shahi received gun shot injuries the complainant Vijai Pratap Shahi sustained spear and lathi injuries. Kedar Shahi also received spear and lathi injuries. The injured persons excluding Vijai Pratap Shahi proceeded to District Hosiptal Gorakhpur for medical examination. Vijai Pratap Shahi, the complainant, lodged a report (Ext. Ka-1). Sri Thakur Prasad Pandey, Head Constable prepared the Chik report (Ext. Ka-9) at 12-15 p.m. The entry was made in the General Diary (Ext. Ka-10). The Station Officer Juthan Singh P.W. 10 reached the spot and prepared the inquest report (Ext. Ka-12) on the dead body of the deceased and also the photo lash (Ext. Ka-13) and challan lash (Ext. Ka-14). The dead body having been sealed was handed over to constable Kaushal Kumar Pandey, P.W. 7 along with a letter (Ext. Ka-15) to the Chief Medical Officer, Gorakhpur. The Site plan (Ext. Ka-16) was prepared on the spot. The samples of blood stained Kharanja and its Fard (Ext. Ka-17) was prepared. Tikli and Wads were collected from the spot and Fard (Ext. Ka-18) was prepared and taken in possession. The Investigating Officer interrogated the prosecution witnesses.
6. It is convenient to set out the post mortem-report, on the dead body of Nand Kishore Shahi carried out by, Dr. P.N. Shukla, P.W. 9 on 7-6-1975 at 4-30 p.m. and the following anti-mortem injuries were found:
1. Circular punctured wound, two in number on the right side of face 2" apart above 1 3/4" from outer canthus of right eye 3/10" x 3/10" tissue deep. No charring, no tattooing.
2. Circular punctured wound two in number lying close to each other over the right side of neck 3" from mustoid process 1/10" x 3/10" tissue deep each.
3. Circular punctured wound 3/10" x 3/1-" tissue deep left side neck 2 3/4" below mustoid process. N. B. Injury No. 3 seems to be one of the exit wound of injury No. 2.
4. Abrasion 1 1/2" x 1" area back of right elbow.
The details of other injured persons with their injuries are set out below :-
Kedar Shahi.
1. Contusion on the left upper eyelid.
2. Contusion 2" x 1" on the top of head.
3. Incised wound 1" x 1/4" bone deep on the left side forehead just above left eye brow.
Jangsher Shahi.
1. Lacerated wound 1 1/2" x 3/4" on the back of right shoulder 2Vi" below the root of the middle of the neck.
2. Gunshot wound 1/2" x 1/4" on the right side back 1 1/2." below from the injury .No. 1 Adv. X-ray.
3. Two gun shot wounds 1/2" x 1/2" each in an area of 1 1/2" x 1" on the front of shoulder 3 1/2" above and at to the sternaclascicutor joint.
4. Two gun shot injury 1/2" x 1/2" each on the front of the shoulder and bleeding on the top.
Adv. X-ray.
Vijai Pratap Shahi. Medical examination took place on 7-6-1975 between 3 to 4 a.m. (Ex. Ka-4 to Ex. Ka-6).
1. Contusion 1/2" x 1" on the back of right shoulder on the upper scapular region.
2. Contusion 3" x l/2" on the upper side of left scapular region.
3. Contusion 3" x 3/4" on the middle of the. right thigh. C/o pain in the chest.
Raj Ballabh Shahi.
1. Contusion 3" x 1/4" on the joint of the left knee.
2. Contusion 2" x 1/2" on the joint right knee front side C/p in both the scapular region.
Bipin Behari Shahi.
Abrasion 1" x 1/10" and contusion 1 1/2" x 3/4" on the right side in between the shoulder and right side knee.
7. A charge-sheet was submitted against all the appellants in the first appeal and the respondents in the second appeal. The charges against the appellants in the first appeal were also under Section 27 of the Arms Act. The appellants in the first appeal and the respondents in the second appeal have pleaded not guilty.
8. Eye witnesses examined at the trial were Vijai Pratap Shahi, P.W. 1 (injured witness) (page 28 of the paper book), Jangsher Shahi, P.W. 2 (injured witness)(page 44 of the paper book), Kedar Nath Shahi, P.W. 4 (injured wit ness) (page 55 of the paper book),'Subhash Shahi, P.W. 5 (page 62 of the paper book The other witnesses arc P.W 3-Dr. N. Swaroop. P.W. 6 and Dr. P. N. Shukla, Medical Officer Incharge, District Hospital, Gorakhpur, P.W. 9 and Sri Juthan Singh, P,W 10. Other witnesses are more or less formal witnesses.
9. The learned Additional District & Sessions Judge relied upon the statement of eye witnesses against the appcallartts in the first appeal, whereas he disbelieved these witnesses as against the respondents in the second appeal.
10. The appellants in the first appeal were convicted as indicated above, whereas the respondents in the Government appeal were acquitted. The government preferred an appeal (second appeal) against the respondents Ram Nayan whereas the convicted appellants have preferred the first appeal.
11. Sri G. S. Chaturvedi, learned counsel for the appellants in the first appeal urged that even though P.W. 1 Vijai Pratap Shahi, P.W. 2 Jangsher Shahi, P.W. 4 Kedamath Shahi and P.W. 5 Subhash Shahi were injured witnesses, but their statements contain so many discrepancies and they have made such Constradictory statements that even though they might have been present at the time of occurrence, but then statements would indi- cate that the prosecution did not come with true rather concealed the material facts and they have tried to create embellisnmcnt in the prosecution version. 11 was further urged that the acquittal of respondents in Govt. appeal was correct. Reliance was placed on Balak Ram v. State of U.P. and Sevi v. State of Tamil Nadu .
12. Sri R. C. Deepak, learned counsel appearing for the State, however, refuted the submissions of the learned counsel for the appellants in the first appeal and urged that there was no justification to disbelieve the injured witnesses and in case they are relied upon, there would be no reason to disbelieve the prosecution case. Sri Deepak, however, further urged that the learned Additional Sessions Judge has not correctly appreciated the statements, of P.Ws. and his 1indings in respect of the acquittal of the respondents in the second appeal are perverse and no reasonable person can take the view taken by the learned Additional Sessions Judge; there was no embellishment of the case set up by the prosecution, nor there was any infirmity so as to disbelieve the prosecution witnesses leading to acquittal of the respondents in. the second appeal.
13. In order to appreciate the submissions made by the learned counsel for the parties, it is convenient to read the provisions of Section 378 of the Code of Criminal Procedure, 1973, (for short the Code), and Section 386 thereof together. Section 378 of the Code deals with the appeal in cases of acquittal. In the instant case the Government has preferred the second appeal with the leave of this Court under Section 378(3) of the Code, whereas the appellants in the first appeal have preferred an appeal against the order of conviction under Section 374 of the Code. Section 386 provides the power of appellate court whether against the conviction or against the acquittal. The procedure is that the High Court would peruse the record and hear the counsel for the appellant. The appellate court, if he considers that there is no sufficient ground for interference, would dismiss the appeal. Whereas in respect of an order of acquittal, the power under Section 386(a) of the Code is that this Court may, in an appeal from an order of acquittal, reverse the said order and direct that further enquiry be made. In case this Court finds the accused guilty, in that event an order of sentence can be passed in accordance with law. In an appeal against conviction if this Court finds ground for interference, it would record an order of acquittal.
14. We have no manner of doubt that the High Court is clothed with plenary powers to go through the entire evidence and to come to its own conclusion as warranted by the facts of the case. But certain guidelines have to be kept in mind. These guidelines in a number of judicial pronouncements of the apex court and other High courts have indicated self restraint in the exercise of plenary powers. Consequently in an appeal against acquittal in case two views are possible after the appraisal of evidence on record, and in case one such view has been adopted by the trial court, in that event this Court would not be justified in making interference. In other words, there must be strong and convincing reasons for interference in an appeal against the acquittal. It has also to be borne in mind that in criminal jurisprudence there is a presumption about innocence of the accused. In other words, the person sought to be prosecuted is assumed to be innocent till he is convicted. That innocence of the accused has been rein-forced when the order of acquittal is recorded by the trial court. In that event unless there are compeling reasons and some important aspect and evidence has been overlooked by the trial court and it has been demonstrated by the learned counsel for the State that trial court has gone wrong and the conclusion drawn are not sustainable in evidence, there need not be any interference. The High Court in such matters has to make a cautious and circumspect approach in exercise of its plenary and unlimited statutory powers and it has to reach its own conclusion about the guilt or otherwise of the indicated persons. In our opinion this Court must be slow in reversing the order of acquittal unless there are good and strong reasons and unless the findings recorded by the trial court are perverse. At the same time it has also to be kept in mind that the findings of the trial court are not to be easily interfered with as the trial court had an opportunity to watch the demeanour of the witnesses, whereas this Court has just to decide the matter on the basis of perusal of record only. (See Madan Gopal Kacker v. Nawal Dubey, ; Ram Milan v. State of U.P., ; Ahermayavisa v. State of Gujarat, and Amok Singh v. State of Punjab, 1992 (Supp) (1) SCC 426).
15. We proceed first to decide the first appeal against the judgment and order of conviction. Before we proceed further it would be in the fitness of things to state that appellant No. 1 Ram Parshan Shahi is dead. The Legislature in its wisdom has enacted for the first time some beneficial provisions under Section 394 of the Code. No doubt every appeal under Sections 374, 377, 378 abates on the death of the accused. Similarly other criminal appeals except an appeal from the sentence of fine, also abate. However a 'proviso', has been added under Section 394 of the Code to the effect that in an appeal against conviction, in case any of the near relatives of the appellant prefers an application within thirty days from the date of death of the appellant for leave to continue the appeal, and in case the leave is granted, the appeal shall not abate. In the present case an application was filed after the death of appellant No. 1 in the first appeal by the son of the appellant. It appears that appellant No. 1 was employed as a teacher in an educational institution. Consequently we allowed the application by our order dated 7-5-1992. The reasons in that order were to be given later and those reasons in brief are these.
16. The law Commission in its 41st report recommended that any of the family members, including the son of the deceased, in an appeal by a "convicted person, may file an application and get rid of the odium, which would otherwise attach to the deceased appellant. This was to obviate certain difficulties which the appellant, if alive and not convicted, would have been able to receive certain benefits, just like provident fund, gratuity, family pension, or some other emolument, in case he was employed in service. In case the appeal abates, in that event the heirs of the appellant would not get the emoluments which could have been received by the appellant in case he was alive. With a view to remove the obstacles in the ways of the heirs to receive such amount and to get rid of the odium, in case the appeal is allowed and conviction and sentence are set aside, this salutary provision was enacted. Keeping in view the gravity of the situation and the broad principles of justice, we have allowed the application earlier by our order dated 7-5- 1992.
17. Reverting to the merits of the case in the first appeal against the judgment and order of conviction, no doubt, P.W. 1 Vijai Pratap Shahi is the complainant and the injured witness, the statement of an injured witness need not be easily disbelieved. But other statements have to be scrutinized in detail under our plenary powers of scrutiny under Section 386 of the Code. P.W. 1 has recited the entire prosecution story which need not be stated. He proved the relationship and topography of the occurrence. He further stated that the appellants belong to one group. He stated about the ill will created on account of the no confidence motion carried out against the said Pradhan at the instance of the complainant, who was subsequently elected as Pradhan after the defeating the candidate of Ram Parshan Shahi, appeallant No. 1. He also stated the prosecution version about the occurrence in the morning of 6-6-1975 that Ashok Shahi, the cousin brother of the complainant had taken his cow to the North-West of the Village and the appellants in the first appeal had given lathi blows to the cows which was followed by exchange of hot words. A report of this incident was lodged at the police station. But no eye witness has lodged that report about the morning occurrence. We proceed to consider the statement under para 23 (page 3 of the paper book), where the P.W. 1 stated that in his F.I.R. he has stated about Ashok Shahi having taken his cow for grazing, but no time was mentioned, He stated that he has told the time at about 9 a.m., but why not the Investigating Officer noted it down was not known. Again he stated that the accused had followed Ashok Shahi up to his door and at that time Gyanendra and Ram Parshan Shahi have lathis in their hands (vide para 25, page 38 of the paper book). But the appellants in the first appeal did not give any blow to Ashok Shahi. This appears to be against human conduct that in case they have followed Ashok Shahi up to the door, in all possibility they would have also given blows. Further these witnesses tried to pacify the sentiments. Thereafter the appellants in. the first appeal went to their residence and they did not extend any abuse to Ashok Shahi. But the same was not mentioned in the F.I.R. He did not state this fact to the Investigating Officer, as he did not ask about it. He again stated that he did not remember the time when Dilip was given abuses and as to when Dilip went to Police Station, whereas Ashok Shahi has stated that Dilip was sent to Police Station. He further stated that before the deceased was shot, P.W. 1 and some other persons tried to intervene and pacified the sentiments and at that time the appellant No. 1, in the first appeal did not use his gun nor the appellants gave beating to anybody. This statement also appears to be in-consistent and unbelievable. His statement further was that the first gun shot hit Nand Kishore Shahi who fell on the spot and died, whereas the second shot hit Jangsher Shahi and Bipin Behari Shahi, and the third shot was made in-the air. Gyanendra Shahi, appellant No. 2" in the first appeal assaulted Kedar Shahi with spear, whereas Ram Nayan, the first respondent in the second appeal has assaulted Kedar Shahi with lathi. In case there was any intention to kill Nand Kishore Shahi the assailants would have repeated the second and third shots as well. The Statement of this witness about Ashok Shahi about having taken his cow is just hearsay, and this witness has stated this with a view to give support to the prosecution case. When this witness was assaulted with lathi and spear and why not the appellant No. 1 in the first appeal caused any gun shot injuries, is the matter of guess and speculation. He was assaulted, as stated earlier, by lathi and spear. In case that was so, he could have been assaulted before the deceased was shot dead. This witness also stated that his party was not armed with any weapon. In all human experience, in case the assailants, the appellants in the first appeal and the respondents in the second appeal were armed with gun, spear and lathies why not the prosecution party was also armed with certain weapons. Entire statements of the P.Ws. are full of discrepancies and contradictions. P.W.1 has tried to create embellishment in the prosecution case as he is an injured witness. Even though he is an injured witness, but he has received only three contusions. The first contusion is on the back of right shoulder, the second contusion is on the upper side of the left scapular region and the third contusion is on the middle of the right thigh. These injuries, in our opinion, appears to be self! inflicted. It is accordingly not safe to rely upon P.W. 1, the injured witness. P.W. 2 Jangsher Shahi an injured witness has tried to support prosecution version in his examination-in-chief. He also stated that prosecution party was not armed with any weapon. No doubt he received four injuries, but those injuries appear to have been self inflicted. We have scrutinized his statement which does not inspire confidence.
18. Similarly we have considered the statement of Kedar Nath Shahi, P.W. 4, who was also an injured witness. We have also kept in mind the nature of injuries as indicated above. He has received two contusions, one on the left upper eyelid, the third injury is incised wound. These injuries appears to be self inflicted. Similarly the next eye witness Subhash Shahi, P.W. 5 also tried to support the prosecution version. But in our opinion, his statement appears to be unworthy of credence. His statement is manifestly and inextricably mixed with falsehood. Consequently we have considered it safe not to rely upon his statement. We have also considered the statement of the Investigating Officer, P.W. 10. He has denied the statement which the aforesaid eye witnesses stated to him during the investigation. Preparation of site plan was also not satisfactory. There was no indication about the earlier occurrence which took place in the morning when Ashok Shahi had taken his cow for grazing.
19. Keeping in view our plenary and unlimited statutory powers,, and have scrutinised the statements of relevants P.Ws. we have reached the conclusion that the eye witnesses and also the Investigation Officer have made statements which are not reliable. The testimony of the eye witnesses, indicated above, does not inspire confidence. The witnesses must tell the whole truth and they should not make contradictory statements. Even though they might be present, but they have not supported the prosecution case, nor their statement appear to be worthy of credence. Consequently, we have considered it proper not to rely upon them. The learned Additional Sessions Judge was not correct, in our opinion, to record the order of conviction against the appellants in the first appeal. Consequntly. we set aside the order of conviction recorded against the appellants in the first appeal.
20. In the second appeal filed by the State of U.P., we have scrutinized the judgment including the findings given by the learned Additional Sessions Judge. The view taken by him about disbelieving the prosecution witnesses as regards the respondents appear to be correct. There is no perversity and unreasonablenesss in the findings recorded by learned Additional Sessions Judge. We have kept in mind that the trial court had occasion to watch the demeanour of the witnesses, whereas this Court had no such opportunity. The prosecution witnesses did not come with clean hands nor their statements reveal the truth at all and cogent reasons have been assigned by the learned trial judge in recording the finding that the prosecution witnesses were neither truthful nor trust-worthy as regards-respondents in the second Appeal are concerned. As the innocence of the accused, the respondents in the Second appeal has been reinforced by the recording a finding of acquittal by the learned trial judge, consequently, unless there are good and strong grounds the order of acquittal need not be interfered with. The view taken by the trial court is plausible view after disbelieving the prosecution witnesses against the respondents in the Government Appeal.
21. We have also considered the dictum laid down-in Balak Ram v. State of U.P., (1974 Cri LJ 1486) (supra), indicating the powers of the High Court against an order of acquittal. It was emphasized by the apex court that in case two views possible after the appraisal of evidence, and one such possible view has been adopted by the trial court, the same need not be interfered with. Similarly in Sevi v. State of TamilNadu(1981 Cri LJ 736) (supra), it. was pointed out by the their Lordships of the apex court that in case there are discrepancies and disquieting features in the case put forward by the prosecution and the account of eye-witnesses appear to be too dramatic, in that event they need not be relied upon. The statements have to be scrutinized keeping in view the human conduct. We have kept in view the dictum laid down by their Lordships of the Supreme Court. In our opinion, as the view taken by the trial court about the acquittal of respondents in the second appeal was a plausible view and sufficient reasons have been indicated, consequently we have refrained from making interference in the Government Appeal.
22. In view of the discussions made herein-before, and applying the Aristotalean and Baconian reasonings, we have no manner of doubt that the conviction recorded by the learned Additional Sessions Judge against the two appellants in the first appeal cannot be sustained.
23. In the result, the first appeal succeeds and is allowed. The conviction and sentences recorded against the appellants in the First Appeal are set aside. They are on bail. They need not surrender. Sureties are discharged and bail-bonds are cancelled.
24. As the reasons given by the learned Additional Sessions Judge in recording the order of acquittal in the Government Appeal are sound, consequently, we dismiss the Government Appeal.