ARUN KUMARversusTHE STATE OF BIHAR & ORS.

                            [2017] 3 S.C.R. 808


A                             ARUN KUMAR
                                     v.
                     THE STATE OF BIHAR & ORS.
                     (Criminal Appeal No. 825 of 2017)
B                              MAY0!,2017
      [R. K. AGRAWAL AND ABHAY MANOHAR SAPRE, JJ.]
         Code of Criminal Procedure, 1973 - s.378 - Appeal by son
  of deceased against acquittal of respondent nos.2-5 of charges
C u/ss.302134, 201 and 307 /PC - Prosecution case was that accused
  persons equipped with guns and lathis attacked the complainant
  party resulting in death of one and gun shot and lathi injuries to
  two including the informant - Villagers witnessed the incident -
  Trial court acquitted the accused persons - Son of deceased filed
  appeal before High Court which was dismissed - On appeal, held:
D In Lalit Kumar case, it was held that appellate court should be slow
  in interfering with the orders of acquittal unless there are compelling
  reasons to do so - High Court decided the appeal without keeping
  in view the law laid down in Lalit Kumar case - Further, High Court
  ought to have called for the record of the case from the trial court
E as provided uls.385(2) of the Code which it seemed to have not
  done - Matter remai1ded to High Court to decide appeal afresh -
  Penal Code, 1860 - ss.302134, 201 and 307.
         Allowing the appeal and remitting the matter to High Court,
    the Court
F          HELD: 1.1 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, the High Court did not exercise its
     appellate powers while hearing the appeal in the manner it ought
G
     to have and dismissed the appeal finding no fault 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. [Para 19][812-C-D]
          1.2 It is true that the appeal before the High Court was
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                                     808
             ARUN KUMAR v. THE STATE OF BIHAR                               809



  against the acquittal order of the Sessions Judge whereby all the A
  accused charged for the offences punishable under Sections 302/
  34, 201 and 307 of IPC stood acquitted yet, 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 *La/it Kumar Sharma case should have been B
  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. The cursory
  manner in which the High Court disposed of the appeal does not
  command to uphold the impugned order. In any event, the C
  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. [Paras 20, 24, 25][812-E-F; 813-H; 814-A-B]
       *Lalit Kumar Sharma & Ors. v. Superintendent & D
       Remembrancer of Legal Affairs, Govt. of West Bengal 1989
       Supp (2) SCC 140 - relied on.
                         Case Law Reference
       1989 Supp (2) sec 140              relied on        Para 20
                                                                            E
       CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
 825 of2017.
       From the Judgment and Order dated 21.04.2014 of the High Court .
 of Judicature at Patna, in Criminal Appeal (DB) No. 1030 of2013.
       Rohit Sharma, Rounak Nayak, Arvind Kumar, Tiwary Sandeep             F
 Puggal, (for Harish Pandey), Advs. for the Appellant.
      E. C. Vidya Sagar, Shantanu Sagar, Gopal Sirigh, Manish Kumar,
 Shivam Singh, Advs. for the Respondents.
       I.he Judgment of the Court was delivered by
                                                                            G
        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 ofJudicature at Patna in Criminal Appeal(D.B.) No. I 030 of2013
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810            SUPREME COURT REPORTS                         [2017) 3 S.C.R.


A - 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 ofrespondent Nos.2-5 of the charges under Sections 302/34,
    201 and 307 of the Indian Penal Code, 1860 (hereinafter referred to as
B "IPC") vi de judgment dated 17.09.2013 passed by the Ad-hoc Additional
    District & Sessions Judge-III, Siwan in Sessions Trial No.32of1993.
          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
 C Diara District Si wan, Bihar. At that time, Ram Naresh Chaudhary with
   Gun, Sukhraj Mall ah with Gun, JanardanAhir 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. Jaitardan Ahir and Balinder Ahir hit on the right
 D 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
 E 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
 F 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.
 G           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.
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            ARUN KUMAR v. THE STATE OF BIHAR                               811
               [ABHAY MANOHAR SAPRE, J.]

Mr. A.A. Khan-Sub-Inspector recorded the statement of the deceased's       A
uncle in the Hospital.
       7. On the basis of the station diary entry No.393, Sub-Inspector
Mr. J.N. PrasadregisteredFIRNo.42/1991dated25.07.1991 was lodged
against eight accused persons in Assaon Police Station. The accused
persons were apprehended.                                                  B
        8. After investigation, charge-sheet No.32/91 was filed on
21. l 0.1991 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.3of1992 was        C
filed on 09.06.1992 againstAnil 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 ofNaga Bhar was also separated.            D

      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.                E
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.                                                                  F
       13. By judgment dated 17.09.2013, the Trial Court acquitted all
the accused persons of th.e offences charged against them.
      14. Challenging the said judgment, the son of the deceased filed
appeal before the High Court.
                                                                            G
       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.
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812             SUPREME COURT REPORTS                          [2017) 3 S.C.R.


A             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.
B            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.
c        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 pro~~cution 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
D 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 Cqurt.
         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
E for the offences punishable under Sections 302/34, 201 and 307 ofIPC
  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 Jud~e iq Lalit
  Kumar Sharma & Ors. Vs. Superintendent & RememJ1rancer of
F Legal Affairs, Govt. of West Bengal, 1989 Supp(2) SCC i 40 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.

G           2L 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
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            ARUN KUMAR v. THE STATE OF BIHAR                                813
               [ABHAY MANOHAR SAPRE, J.]

      in with the order of acquittal. It is now well settled that the A
      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 B
      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          C
         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 D
      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."                                            E
       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 notpossible for this Court to
sustain the impugned order which deserves to be set aside.
       23. This Court cannot undertake the exercise of discussing and       F
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          G
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    H
      814             SUPREME COURT REPORTS                          [2017] 3 S.C.R.


      A     manner in which the High Court disposed of the appeal does not command
            us to uphold the impugned order.
              25. In a:ny 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
      B 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.
       c           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
       D 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.


            Devika Gujral                                                 Appeal allowed.




.,.