LAL MANDIversusTHE STATE OF WEST BENGAL

A                                 LAL MANDI
                                        v.
                       THE STATE OF WEST BENGAL                                    y




                                 APRIL 4, 1995

B             [DR. A.S. ANAND AND M.K. MUKHERJEE, JJ.]

        Indian Penal Code 1860-Section 302-Criminal Appeaf-Appraisal of
  evidence by the appellate court-Appellate coult must appreciate the evidence
  to arrive at an· independent findinirThe accused to be given benefit of
C reasonable doubt if on appreciation of evidence-two views are possible.
          Constituton of India-Article 136--Reappraisal of evidence
    unt!zi-<:oun does not generally reappraise evidence but in cenain cases
    evidence on record can be analysed to satisfy judicial consience.

D         The appellant was convicted and sentenced by the Sessions Judge
    under Section 302/34 IPC and Section 201 IPC. On appeal, the High Court
    dismissed the appeal without considering the evidence on record on the
    ground that the Sessions Judge had the opportunity of watching the
    demeanour and conduct of the witnesses deposing before him and bis
E   assessment of evidence cannot be substituted by the appellate court even
    if two views were possible on the appraisal of the evidence. Hence the
    present appeal by way of S.L.P.

          Setting aside the conviction of the appellant for offences under
    Section 302/34 IPC and 201 IPC and convicting him for offence under
F   Section 325/34 IPC, this Court                               ·

        HELD: 1. An appellate court may give every reasonable weight to the
  conclusions arrived at by the trial Court but it must be remembered that
  an appellate court is duty bound, in the same way as the trial court, to test
  the evidence extrinsically as well as intrinsically and to consider as
G throughly as the trial court, all the circumstances available on the record
  so as to arrive at an independent finding regarding quilt or innocence of
  the convict. An appellate court fails in the discharge of one of its essential
  duties, if it fails to appreciate the evidence on the record and arrive at an
  independent finding based on the appraisal of such evidence. The High
H Court failed to do so and its view is patently erroneous. [138-B, CJ
                                         134
                        LALMAND!v. STATE[DR.ANAND,J.]                            135

             · 2. Though, the powers of an appellate court, while dealing with au A
        appeal against acquittal and an appeal against conviction are equally wide
        but the considerations which weigh with it while dealing with an appeal
        against an order of acquittal and in an appeal against conviction are
        distinct and seperate. The presumption of innocence of an accused which
        gets strengthened on his acquittal is not available ou bis conviction.
                                                                 [137-H, 138-A-B] B
              Tota _Singh v. State of Punjab, AIR (1987) SC 1083, distinguished.

-··-<         3.1. Though this court does not generally reappraise the evideuce
        which bas been considered by the courts below, in an appeal by Special
        Leave, but since the consideration of the evidence by the High .Cqurt was      C
        not proper, the evidellll!' on the record can be analysed. [138-D)
                                            . . ,, .                         I
             3.2. The evidence on the record does not justify the convictfon of tire
        appellant for offences under Section 307/34 IPC and Section 201 IPC.
                                                                           [139-E)
             CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.                     D
        745 of 1991.

             From the Judgment and Order dated 31.7.90 of the Calcutta High
        Court in Cd.A.No. 172 of 1986.

              K.V. Vishwanathan and K.V. Venkataraman for the Appellant.               E

              Tapas Ray, J.R. Das and D.K. Sinha for the Respondent.

              The Judgement of the Court was delivered by

               DR. ANAND, J. The appellant alongwith four absconding accused F
        Man Singh, Babu Lal, Arjan and a son-in-law of Ganesh was charge-
        sheeted for committing the murder of Dullen Maddi, wife of PW2, Murka
        Maddi on 31.8.1982 at about 8.00 p.m. It is alleged by the prosecution that
        after causing injuries to the deceased, the assailants buried her dead body
        with the intention of screening the offenders from legal consequences. The G
        learned Additional Sessions Judge, Burdwan convicted the appellant for
        offences under Section 302/34 IPC and Section 201 !PC and sentenced him
        to undergo imprisonment for life and to pay a fine of Rs. 5,000 for the
        offence under Section 302/34 !PC and RI for a period of 5 years and a fine
        of Rs. 2,000 for the offence' under Section 201 IPC. The substantive
        sentences were however, directed to run concurrently. His appeal before H
    136                  SUPREME COURT REPORTS                [1995] 3 S.C.R.

A   the High Court of Calcutta against conviction and sentence failed on
    31.7.1990. Hence, this appeal by special leave.

         The prosecution case against the appellant is that the villagers of
  Dhupchindanga in Burdwan District were under an impression that the
  deceased was a witch and was responsible for the death of the infant
B daughter of one of the absconding accused, Man Singh. It is alleged that
  on 31.8.1982 at about 8.00 p.m., while PW2 Murka Maddi, his three sons
  including Sita Ram Maddi, PW8 and a daughter alongwith his wife Dullon
                                                                                 r-
  Maddi (deceased) were sitting inside their house, Man Singh alongwith
  another person and Babu Lal (the absconding accused) entered their house
C and gave beating to PW2 and his wife Dullon and then dragged her away
  to Man Singh's house. While Dullon was being assaulted in her house, PW2
  and PW8 fled away. The appellant and one of the absconding accused
  were present at the house of Man Singh and all of them took part in
  assaulting the deceased at the house of Man Singh. PW2 and PW8 went
D to the police station and lodged a report on 1.9.1982 at about 1030 hrs.
  The report Ex.-7 was entered in the general diary by the Station House
  Officer, PWlO. The statement, however, was cryptic. It did not disclose the
  names of the accused even. Snbsequently, when PWl4 took over the
  investigation, he recorded the statement of PW2 on 1.9.1982 at abont 1235
  hrs. and on the basis of that statement, a formal FIR was registered. The
E body of Dullon (deceased) was exhumed on 2.9.1982 by the SI in the
   presence of the Executive Magistrate and inquest proceedings were held.
   T~e dead body was sent for postmortem examination. The SI during the
   investigation seized lathis alleged to have been in the assault of Dullon
   from the house of Man Singh and Ganesh.
F
          Before the Trial Court, it was submitted on behalf of the appellant
    that had PW8, Sitaram, son of the deceased and PW2 husband of the
    deceased been actually eye witnesses and had witnessed the occurrence the
    statement Ex.7 made by them to PWlO, which was recorded in the general
    diary would not have been so cryptic and the name of the appellant and
G   others, who were admittedly known to them would have found a mention
    therein. It was also submitted that the conduct of Murka Maddi, PW2, the
    husband of the deceased, who made no efforts either to save his wife
    from being forcibly dragged from his house also creates a doubt about his
    presence at the time of the occurrence. Both the submissions were rejected
H   by the Trial Court and in our opinion rightly and for cogent reasons with
                       LALMAND!v. STATE[DR.ANAND,J.)                           137
      which we agree.                                                                 A
             The High Court dismissed the appeal and confirmed the conviction
,·.   ·and sentence of the appellant. However, the manner in which the High
       Court dealt with the appeal leaves much to be desired. The High Court
       did not oonsider much less discuss the evidence at all and after a narration
       of the prosecution case observed :                                             B

               "The learned Sessions Judge had an opportunity of watching the
               demeanour and conduct of the witnesses deposing before him and
               his assessment of the evidence in facts and circumstances could
               not be discarded as pervert or illogical or illegal. That being the    C
               case this court of appeal would not substitute the findings of the
.,             Sessions Judge by its own simply because a different conclusion
               could be arrived at on the assessment of the evidence from a
               different angle or from the same angle. So, considering all these,
               we do not find any reason to depart from the findings made by          D
               the learned Sessions Judge as to the guilt of the accused. See Tota
               Singh v. State of Punjab, AIR {1987) S.C. 1083 though this case
               dealt with order of acquittal in appeal, the principle laid down in
               the said decision by the Supreme Court may apply to order of
               conviction as well. It is said that where two views are possible on
               an appraisal of the evidence adduced in the case and the court         E
               below has taken a view which is a plausible one, the Appellate
               Court cannot legally interfere with an order of acquittal even if it
               is of the opinion that the view taken by the Court below on its
               consideration of the evidence is erroneous. 11
                                                                                      F
             To say the least, the approach of the High Court is totally fallacious.
      In an appeal against conviction, the Appellate Court has the duty to itself
      appreciate the evidence on the record and if two views are possible on the
      appraisal of the evidence, the benefit of reasonable doubt has to be given
      to an accused. It is not correct to suggest that the "Appellate Court cannot
      legally interfere with" the order of conviction where the trial court has G
      found the evidence as reliable and that it cannot substitute the findings of
      the Sessions Judge by its own, if it arrives at a different conclusion on
      reassessment of the evidence. The observation made in Tota Singh's case,
      which was an appeal against acquittal, have been misunderstood and
      mechanically applied. Though, the powers of an appellate court, while H
    138                   SUPREME COURT REPORTS                 (1995] 3 S.C.R.

A dealing with an appeal against acquittal and an appeal against conviction
  are equally wide but the considerations which weigh with it while dealing
  with an appeal against an order of acquittal and in an appeal against
  conviction are distinct and separate. The presumption of innocence of
  accused which gets strengthened on his acquittal is not available on his
B conviction. An appellate court may give every reasonable weight to the
  conclusions arrived at by the trial court but it must be remembered that an
  appellate court is duty bound, in the same way as the trial court, to test
  the evidence extrinsically as well as intrinsically and to consider as
  thoroughly as the trial court, all the circumstances available on the record
  so as to arrive at an independent finding regarding guilt or innocence of
C the convict. An Appellate Court fails in the discharge of one of its essential
  duties, if it fails to itself appreciate the evidence on the record and arrive
  at an independent finding based on the appraisal of such evidence. The
  High Court failed to do so and its view is patently erroneous. Though this
  Court does not generally reappraise the evidence which has been con-
  sidered by two courts below in an appeal by special leave but since the
D consideration of the evidence by the High Court was not proper, we have
  ourselves analysed the evidence on the record with the assistance of
  learned counsel for the parties.

          Our independent analysis of the evidence shows that the appellant
E   was present at the house of Man Singh when Dullon deceased was brought
    there and had also given a kick to the deceased at the house of Man Singh.
    The question, however, is, what offence can be said to have been com-
    mitted by the appellant ? In this connection, the statement of PWS that he
    know the appellant and at the time of the occurrence had seen him standing
F   at a distance after his mother had been dragged away by Man Singh and
    the son-in-law of Ganesh but that the appellant had not taken any part in
    that incident assumes much significance, particularly when it is admitted
    by the prosecution witnesses that the appellant has no relationship what-
    soever with either Man Singh or the other absconding co-accused.               ...
                                                                                   .

G       According to PW5, the appellant had kicked the deceased once. This
  witness did not ascribe any other role to the appellant. However, PWS
  deposed that besides kicking the deceased, the appellant had also given
  her one lathi blow. This part of the testimony of PWS has not received
  corroboration from any other witness. Admittedly, the complainant party
H and the appellant were not on good terms. PWS admitted that not only
                LALMAND!v. STATE[DR.ANAND,J.]                        139

had the appellant boycotted the marriage feast on the occasion of the A
marriage of the elder brother of PWS but he had also restrained some
other persons from attending that feast. During his cross- examination,
PWS admitted that he had animosity with the appellant. The possibility,
therefore, that PW8 exaggerated the role of the appellant and attributed a
lathi blow also to him cannot be ruled out. No role has been ascribed to B
the appellant by PW2, PW5 or PWS in so far as the dragging of the
deceased from the house of Man Singh towards the river side is con-
cerned. Again, no part is attributed to the appellant when the deceased
was hurried near the river side, which place was pointed out by Babu Lal,
the absconding co-accused to the police. In the face of all these circumstan-
ces, in our opinion it would not be safe to hold that the appellant shared C
the common intention with the absconding co-accused in either causing the
death of the deceased or in destroying the evidence to screen the offence.

       The only consistent evidence that emerges from the testimony of
PW2, PW5 and PWS is that the appellant gave a kick to the deceased at
the house of Man Singh. According to the post-mortem report, the D
deceased had four incised wounds besides a lacerated wound and fracture
of ribs. The fracture of ribs of th~ deceased is attributed to the appellant
and his co-accused. The appellant can, thus, be fastened with the liability     •
of an offence under Section 325/34 !PC only. The evidence on the record
does not justify the conviction of the appellant for offences under Section E
302/34 !PC and Section 201 !PC. We accordingly set-aside his conviction
and sentence for the offences under Section 302/34 !PC and 201 !PC and
instead fiad him guilty of an offence under Section 325/34 !PC and
sentence him to suffer rigorous imprisonment for the period already
undergone by him. This appeal, therefore, succeeds to the limited extent
as noticed above. The appellant shall be released from custody forthwith F
if not required in any oth~r case.

T.N.A.                                              Petition disposed of.