Case referred:

1. Sheo Swarop v. Emperor. A.I.R. 1934 P.C. 227.

Shacheendra Dwivedi, J. - The appellant-State has preferred this appeal against the order of acquittal recorded by the learned trial Court thereby acquitting the accused-respondents of the charge under section 302, in the alternative under sections 302/ 149 and 201, I.P.C.

2. According to the prosecution story, deceased Arjun Prasad was living in village Jagannathpura. The deceased had no issue. His widow- Mst. Ram Kunwar Bai (PW-12), who had left the village Jagannathpura, was-living with her parents in village Machhariya. Witnesses Triveni Bat (PW- 10) and Badri Singh (PW- 11) are the residents of village Jagannathpura. In the past, the son of Triveni Bai (PW- 10) committed murder in village Jagannathpura and since then Mst. Ram Kunwar Bai, widow of Arjun Prasad, had left village Jagannathpura and were living in village Machhariya.

3. Since there was none to live with deceased Arjun Prasad, accused Shiv Charan, respondent was made to live with his family. It is alleged that Shiv Charan got a sale-deed executed of the agricultural land in his favour from Arjun Prasad. In respect of the same land, a suit was filed by one Raghunath, which was stated to be pending at the time when the trial had concluded.

4. It is alleged by the prosecution that the sale-deed of the property of Arjun Prasad was got executed by accused Shiv Charan by playing deceit upon him. Since no arrangement was made for the maintenance of Arjun Prasad, he had started denying the alleged sale. His wife Mst. Ram is Kunwar Bai (PW- 12) was alleged to have objected to such sale in the Court. Therefore, it is stated that the accused per sops in order to get rid of the whole dispute committed murder of Arjun Prasad in the intervening night of 3rd and 4th April, 1979 and it is further stated that before the police could reach the village, the dead body was put to fire. The case of the prosecution is also that when the dead body was being taken to the funeral ground, Lal Singh (PW- 9) and one Mst. Chandan Bai had objected, the accused-respondent Shiv Charan and Bachhi had given threat to them at the gun point. It was also alleged that other accused persons in order to screen the offenders had caused disappearance of the evidence by putting the dead body to fire. Accused-respondent No.1 who had participated in putting the body to fire at the funeral ground was charged only with the commission of offence under section 201. LP.C.

5. The case of the accused persons was of total denial. It was stated that the deceased, aged about 62 years, had died the natural death as he was a chronic patient of deceased asthma and was being treated for the last about 12 years. Accused-respondent Shiv Charan had filed his written-statement. He had stated that the deceased gave him love and affection. He was made to live with him since his wife had left him and he had no issue. Shiv Charan is a member of the deceased family. Due to love and affection bestowed on him by deceased Arjun Prasad, his wife Ram Kunwar Bai (PW -12), Mst. Triveni Bai (PW- 10) and Lal Singh (PW- 9) were on inimical terms. The other witness Badri (PW- 11) is the servant of Mst. Triveni Bai (PW-10).

6. For the above reason, after the death of Arjun Prasad, the accused respondent-Shiv Charan with all his relations and friends were got falsely implicated in the alleged offence so that Mst. Ram Kunwar Bai (PW- 12), Mst. Triveni Bai -(PW- 10), Lal Singh (PW- 9) and others may occupy his house and also take possession of the land, which was transferred in his favour by deceased Arjun Prasad. It was also stated, by Shiv Charan that although Lal Singh (PW- 9) had been saying that he had nothing to do and had no interest with the property of deceased Arjun Prasad, but Shiv Charan had filed a registered sale-deed dated 25-1-1980 on record in respect of the house of deceased Arjun Prasad, which was got executed by Lal Singh (PW- 9) in favour of his minor son from Ram Kunwar Bai (PW-12).

7. The other accused persons had also assigned good reasons in their false implication in the case. As for instance, the case of accused-respondent Bachhi was that he had lodged the report against Lal Singh (PW- 9) for the murder of Om Prakash. The copy of the report was also filed on record. The case of Rameshwar Jatav was that a case of dacoity was pending against witness. Lal Singh (PW-9) and the son-in-law Radha Kishan of witness Triveni Bai (PW- 10), on his report. Accused - respondent Seeta Ram, is the father of Mst. Vidya Devi, who is the widow of Om Prakash. Om Prakash was the son of Mst. Triveni (PW- 10). Vidya Devi had claimed her right in the property of Om Prakash, but Triveni Bai (PW- 10) was not prepared to give even an inch of land to her. Her father accused-respondent Seeta Ram was appointed by Mst. Vidya, as her Attorney and he was prosecuting the civil litigation. The case of accused respondent, Vishnu was that his father Har Narayan had obtained a decree against Lal Singh (PW- 9). Thus, the terms of the prosecution witnesses were inimical with the accused persons.

8. Coming to the material fact, the prosecution alleged that the two witnesses namely, PW- 10 Triveni Bai and PW- 11 Badri had seen the incident and they were examined as eye-witnesses. According to their version. in the intervening night of 3rd and 4th April, 1979, they had seen accused Shiv Charan strangulating the deceased by pressing his neck and the other accused persons were holding deceased Arjun Prasad by his hands and legs.

9. At the trial Dr. Ravi Raman was examined by defence witness as DW-4 in order to prove that the deceased met the natural death as he was suffering from asthma and was treated by the witness from June, 1977 to October, 1977.

10. The learned trial Court after full dressed trial on the appreciation of the evidence found that version of the alleged two eye witnesses, namely. Triveni Bai (PW- 10) and Badri (PW- 11) was wholly unreliable in view of their self-contradictory statements which were also contradicted by each others version and by the circumstances of the case and as such could not be relied upon and. Therefore, acquitted the accused persons of all the charges.

11. It is contended by the appellant-State that the statements of the prosecution witnesses, particularly the statements of PW- 10 Triveni Bai and PW- 11 Badri were wrongly disbelieved by the learned trial Court, whereas the prosecution had fully proved the charges against them and. Therefore, the order of acquittal deserves to be set aside.

12. It is well settled that in an appeal against the acquittal of the accused, due weight has to be attached to the findings of facts recorded by the learned trial Court on the assessment of the reliability of the witnesses because the advantage which the trial Court has in observing their demeanour and conduct and their appearance at the time of giving evidence in Court is not available to an appellate Court.

13. Therefore, in the instant case, it is to be examined whether the reasons assigned for the acquittal of accused person on the appreciation of the evidence are reasonable and proper or not.

14. To begin with, initially five accused persons were stated to have committed murder in the first information report (Ex. 19) lodged by witness Lal Singh (PW- 9), where as admittedly he was not an eye-witness, named five accused. The witness Lal Singh (PW- 9) had stated, for the first time in Court that the information about the incident and the names of the accused persons were given to him by his servant Ram Nath, but the said Ram Nath was not examined by the prosecution at the trial. The contradictions between the statement of Lal Singh (PW-9) in court and his statement given to the police during investigation on material and were also considered by the learned trial Court. The learned trial Court in the circumstances found that the most material witness Ram Nath was not examined by the prosecution though the initial version that had appeared in the F.I.R. was based only on the information of Ram Nath.

Such evidence being hearsay has to be kept out of consideration. Further an adverse inference has also to be drawn against the prosecution for withholding the material eye witness, who could unfold the prosecution story as it was his version which is stated to have- appeared in F.I.R. It is a fatal lacuna for the prosecution.

15. However, the prosecution in order to establish the guilt against the accused persons has relied upon firstly on the eye witness account of Triveni Bai (PW- 10) her alleged servant Badri Singh (PW- 11) and secondly on the circumstantial evidence of motive for murder and the early disposal of the dead body before the police could reach the village.

We will first consider the circumstances through which the prosecution seeks to connect the accused-respondents with the stated offence. According to prosecution, the accused had motive for committing the offence. It is alleged that accused-respondent Shiv Charan got a registered sale-deed executed from deceased Arjun Prasad of his land by playing fraud on deceased Arjun Prasad. Lateron, Arjun Prasad started denying the sale-deed. Regarding the land, a suit was filed by one Raghunath and the wife of Arjun Prasad had also objected to such sale-deed in the Court. Therefore, the accused persons under a conspiracy committed the murder of Arjun Prasad in the intervening night of 3rd and 4th April, 1979 so that the dispute may end once forever.

16. The second circumstance relied upon by the prosecution is of the disposal of the dead body before the Sunrise and earlier to the police reaching the village. It is alleged that Chandan Bai (not examined) and Lal Singh (PW- 9) had objected to such disposal of the dead body on which a threat is also stated to have been given by accused-respondents Shiv Charan and Bachhi to them.

17. With regard to the motive, it has come in evidence that accused Shiv Charan was residing with deceased Arjun Prasad at his instance since his wife Ram Kunwar (PW-12) had left him and had gone to reside with her parents. Now, if accused persons wanted to take the property of Arjun Prasad through fraud, they could have got the sale-deed executed for the whole property as Arjun Prasad was the owner of more properties including the two houses. Further there is absolutely nothing on record to suggest that any fraud was played on Arjun Prasad in getting the sale-deed executed from him nor he had objected to such sale-deed under any document or had complained to anyone. Admittedly, the sale-deed was executed on 19-3-1979 and Arjun Prasad had died in the intervening night of 3rd and 4th April, 1979, i.e., about after 15 days, but he had not done anything against the stated fraud. Further though the police had seized the document of registered sale-deed from the house of Arjun Prasad during investigation, yet it was not filed in the Court. The copy of the document was tendered in evidence by defence as Ex. D/5. The document of the sale-deed and the statement of witnesses, Banwari (DW-2) and Kripa Shankar (DW-3) on the contrary show that no fraud was played on Arjun Prasad in the execution of the sale-deed. DW-2 Banwari was the servant of Arjun Prasad and was examined by defence on being given up by the prosecution. The police during investigation did not examine Advocate, Surendra Kumar, who had drafted the sale-deed and got it executed from Arjun Prasad. The deceased is also-not alleged to have complained or stated to anyone about the alleged fraud between the period of execution of the sale-deed and his death. Although, the prosecution witness, Lal Singh (PW- 9) admits in his statement that Arjun Prasad used to meet him during this period while going to Mandir for darshan.

A cumulative effect of the above circumstance, would clearly go to indicate the failure of prosecution in proving the motive. Nor there could be any motive for the accused persons to commit the murder of Arjun Prasad in view of above circumstances.

18. Now, we proceed to consider the next circumstance of the early disposal of the dead body despite the alleged objection stated to be raised by Chandan Bai (not examined) and Lal Singh (PW-9). The circumstances of the case go to show that Lal Singh (PW- 9) is an interested witness. He got the sale-deed of the house of deceased Arjun Prasad, after his death, from his wife Ram Kunwar in the name of his minor son. His statement is that earlier to the funeral of the dead body, he had asked the accused persons not to dispose of the body as he would get its postmortem done, hut curiously this material fact does not appear in the F.I.R. lodged by him. It is common in the villages that the dead body is not kept in the house for long period. There is no material on record that the accused persons were informed to await the arrival of the police or that the police was at all informed of the stated suspicious death. According to defence, Arjun Prasad was a patient of Asthma. Although prosecution witnesses Har Narayan (PW- 4), Lal Singh (PW- 9) and Triveni Bai (PW- 10) had denied the fact that Arjun Prasad was suffering from Asthma, yet PW -1 Badri Singh stated in para 23, that Arjun Prasad was suffering from dysentry. The wife of the deceased, Ram Kunwar (PW-12) had also denied that her husband was suffering, from Asthma whereas PW-1 Ramsewak admitted that deceased Arjun Prasad was a patient of Asthma and had taken treatment for a long period.

The servant of Arjun Prasad, named Banwari (PW-2) deposed that Arjun Prasad was suffering from Asthma and had died due .to the ailment. The papers of his treatment (Exs. D/6 and D/7) proved by DW-4 Dr. Ravi Raman got to establish that deceased was suffering from Asthma and due to that ailment, his heart had become weak and he could have died suddenly. In the circumstances nothing could be inferred from the disposal of body.

19. Now, adverting to the evidence of eye-witnesses, it may be seen that the two eye-witnesses, namely, Triveni Bai (PW- 10) and her servant Badri Singh (PW- 11) have been found to be unreliable by the learned trial Court. Triveni Bai (PW- 10) has resiled from her case diary statement A to A and K to K. She had stated to the police that she had seen the incident in the night through a window, but in the Court she had denied that version and stated that the incident was witnessed by her from the roof. She herself is the owner of the house, yet she stated that she does not know whether there is any window or not. - Further in her case diary statement she had stated that she was sleeping in the room and had witnessed the incident through window. But in Court she denied this fact and stated that she had seen the commission of the offence by the accused persons from the roof. According to her, Badri (PW- 11) also saw the incident from the roof, but lateron she contradicted her version that she cannot say wherefrom Badri Singh (PW -11) had seen the incident. She has also contradicted the case diary version wherein she had stated to police that the dead body of Arjun Prasad was carried by the accused persons early in the morning but in the Court she stated that she cannot say when was the dead body taken by the accused persons as she had not seen the carrying of the dead body.

It appeared in the prosecution evidence that though the window of Triveni Bai's house, due to the spot situation; the incident could not be witnessed. It appears that for that reason, resiling from her case diary statement she had stated in Court that she had seen the incident from the roof.

The other witness Badri Singh (PW 11) has even denied the admitted fact that Shiv Charan was residing with deceased Arjun Prasad. The version of the two eye-witnesses (PW- 10) Triveni Bai and PW - 11 Badri Singh is also contradicted by each other on the material fact as to where witnesses were sleeping at the time of the alleged incident. The earlier version of Triveni Bai was that she was sleeping in the room, but lateron she had stated to be sleeping on the roof and Badri Singh woke up only on her shouts while he was sleeping on the other roof whereas the version of Badri Singh has been that he was sleeping at some distance on the same roof. On evidence even the presence of Badri Singh (PW- 11), being the servant of Triveni Bai (PW -10) has been doubted by the learned trial Court. Under the detailed discussion about the payment of salary, the learnec1 trial Court also found that the fact of Badri Singh being the servant of Triveni Bai was also doubtful as appeared after the incident, no salary to Badri Singh was to be paid.

20. The learned Court below on the evidence has found that the improvements in the later statement were made by Triveni Bai (PW- 10) in order to make herself an eye-witness and Badri Singh (PW- 11) was projected as her servant so that he could also see the incident by having reason to remain present in the house at that hour. On the consideration of material fact that the witnesses did not state to have seen the incident to anyone before the police came to the village, the trial court found that it was the excuse which the witnesses had advanced that it was due to fear that they did not narrate the incident to anyone nor came outside the house was a lame excuse. It was not the version of the witnesses that the accused persons had at all seen them witnessing the incident. As such, there could be no cause of fear.

21. The statement of eye-witness Badri Singh (PW- 11) was also not recorded by the police on the date when it had reached in village, though the witness was available for giving his statement. The fact that Lal Singh (PW- 9) had although stated that he had asked the accused persons not to dispose of the body while it was being carried by them for funeral, he named only five accused persons in his F.I.R. The learned trial Court on the consideration of the conduct of the witnesses of resiling from their case diary statement and their Court statements being self-contradictory and having been contradicted by each others version held very rightly that the evidence of the prosecution could not be relied upon for, convicting the accused persons and, therefore, acquitted the accused persons of the charge of murder.

22. The view taken by the learned trial Court on the appreciation of evidence is neither perverse nor unreasonable and in such circumstances, this Court would not interfere with the order of acquittal. Even if two views of the evidence were reasonably possible, the order of acquittal could not be interfered with. In the instant case, the learned trial Court has assigned good reasons for acquittal of the accused on the basis of evidence and the State has also failed before us to point out any mistake of the trial Court in assessing the prosecution evidence or in not considering any material fact brought on record by the prosecution.

23. Although it is true that even in an appeal preferred against the order of acquittal, this court can interfere on its reappraisal of the evidence, but as held by the Privy Council in the celebrated case of Sheo Swarop v. Emperorl, although to an appeal from an order of acquittal the powers of the High Court to reassess the evidence and to reach to its own conclusions are as extensive as in an appeal against an order of conviction, yet, the High Court should not disturb the acquittal if to quote in the words of Lord Russel of Killowen that the appellate Court should:

"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 the trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had

1. A.I.R. 1934 P.C. 227.

the advantage of seeing the witnesses. "

24. Even where two reasonable conclusions may be possible to be drawn on the evidence on record, the High Court should, as a matter of judicial caution, refrain from interfering with the order of acquittal recorded by the Court below. To put in other words, if the main grounds on which the Court below has based its order in acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. In appeals against acquittal, this Court has to satisfy itself if the view taken by the trial Court in acquitting the accused persons was possible or not. After going through the evidence, we have found that the learned trial Court has taken, the view which any reasonable and prudent man in the circumstances would take and therefore, on the above discussion and the foregoing reasons, we uphold the impugned order of acquittal as being not perverse or palpably erroneous. The appeal has no merit. It is as such dismissed. Appeal dismissed.