Holding

An appellate court may set aside an order of acquittal if the trial court's findings are unreasonable or against the weight of the evidence; the High Court was justified in doing so.

Summary

The case arose from a long‑standing family enmity over a religious dispute. On 25 December 1975 the appellant, Mohd Aslam, armed with a double‑barrel gun, shot the complainant’s son‑in‑law Shamim Raza, who died on the spot, and Mohd Umar, who later died of his injuries. The Sessions Court acquitted the appellant, but the Allahabad High Court set aside the acquittal, convicted him under IPC 302 and sentenced him to life imprisonment. The appellant appealed, arguing that the High Court should not have interfered with the acquittal because the trial judge had carefully examined the evidence and that the eye‑witnesses were partisan. The Supreme Court held that an appellate court is not barred from re‑appraising evidence in an appeal from an acquittal where the trial court’s reasons are unreasonable or contrary to the weight of the evidence. It found that the High Court had properly scrutinised the trial judge’s findings, accepted the credibility of the eye‑witnesses and the forensic evidence, and was therefore justified in upholding the conviction. The appeal was dismissed and the appellant was ordered to surrender.

Issues considered

In an appeal from an order of acquittal, may the appellate court re‑appraise the evidence and set aside the acquittal if the trial court's reasons are unreasonable?
Whether the alleged partisan bias of eye‑witnesses warrants discarding their testimony.
Whether the short interval between the incident and filing of the FIR defeats the prosecution case.
Whether the difference in the nature of injuries (bullets versus pellets) creates reasonable doubt about the appellant’s guilt.

Legislation cited

Code of Criminal Procedure, 1973s. 107, s. 117, s. 37
Indian Penal Code, 1860s. 302

Subjects

acquittalappellate reviewevidence appraisaleye‑witness testimonymurderlife imprisonmentIPC 302CPC 37partisan witnessesforensic evidence

Judgment

A MOHD. ASLAM ALIAS KUYIAN
v.
STATE OF U.P.

MARCH 18, 1993

B [K. JAYACHANDRA REDDY AND G.N. RAY, JJ.)

Code of Criminal Procedure, 1973 : Section 37&-Appeal against ac-
quittaHnteiference by Appellate Court whet1.
c Penal Code, 1860 : Section 302-Conviction under, by High Court-
Appreciation of evidence by Supreme Court-High Court's finding whether
justified-Evidences of eye-witnesses-Value of

The prosecution case was that there was long standing enmity -4'
D between appellant's father and one Khan on one side and the com-
plainant on the other, which rose out of rival claim in placing 'sawai' on
the Akhara of Tajias. A Civil litigation was pending between the parties
over the dispute. Criminal proceedings under section 107 read with
section 117 of the Code ·or Criminal Procedure were also pending between
them.
E
The nephew and son-in-law of the complainant was doing pairvi of ">--
the cases OD behalf Of the complainant and because Of that the father of
the appellant and one Khan became inimical to the son-in-law of the
complainant.
F
At about 6.00 P.M. on the date of the occurrence namely 25.12.1975,
the son-in-law .of the complainant was sitting on a wooden bench in front
of a hair C\ltling shop of his village. One Umar and P.W.1 were also ~.
sitting wl'th him and all the three were talking. P.Ws. 2 and 3 and the
complainant were standing near a Gumti, at a short distance and were
G talking.

At the time, the appellant armed with a double barrel gun came there.
He challenged the complainant's son-in-law and threatened to kill anyone A
who would come forward. He fired two shots which hit the complainant's
H son-in-law add one Umar. Both of them fell down. Complainant's son-In-law
444

--~- --.. --.~--~·'"' .
MOHD.ASLAM v. STATE OF U.P. 445

died on the spot. P.W.10 took Umar to Hospital. A
The Complainant went to his home and got a report of the occur-
rence written by P.W.4 and taking the report to the Police Station, abont
4 miles away, he lodged the F.I.R at 7.15 P.M. Investigation of the case
was immediately commenced. Umar died on 4.1.1976, prior to his death on
1.1.1976, the Police had interrogated the deceased. B

The case of accused - appellant was that he was falsely implicated
on account of enmity and party faction. He denied all the allegations of the
prosecution.

The Sessions Court acquitted ihe accused-appellant, as it did not
c
find the prosecution case and the evidence acceptable.

Allowing the State's appeal against acquittal, the High Court con-
victed the appellant under section 302 I.P.C. and sentenced him to im-
prisonment for life. D
In the appeal before this Court, the accused contended that the High
Court did not appreciate the salutory principles governing the judgment
of acquittal; that the Sessions Judge bad taken pains in analysing in detail .
the evidences adduced in the case and gave reasonings for each of the
finding as to why the prosecution case could not be accepted and what E
were the intrinsic deficiency in the evidences adduced in the case in
support of the prosecution; that the law was well settled that in a case of
acquittal, the appellate Court should not interfere with the judgment of
acquittal if such-judgment was based on consideration of the evidences
adduced in the case and there was no perversity in coming to the finding F
for passing the judgment of acquittal and in such a case of acquittal, the
High Court in exercise of its appellate power should not endeavour to
appreciate the evidence on its own in order to come to different finding
unlike in an appeal arising from the judgment of conviction; that it has
been established convincingly that there was party faction between the two
groups over a dispute to place Sawai on Tajias and both civil and criminal G
proceedings were instituted between the two groups: that the eye-witnesses
were in the faction of the complainant and they were partition witnesses;
that the Sessions Judge, therefore, after nothing the various discrepancies
in the prosecution case, was not inclined to place reliance on the evidences
adduced by the alleged eye-witnesses and acquitted the accused/appellant; H
446 SUPREME COURT REPORTS [1993] 2 S.C.R.

A and that such order of acquittal, in the facts of the case and the reasons
indicated by the Sessions Judge, was not required to be interfered with in
appeal by the High Court.

Dismissing the appeal, this Court,

B HELD: 1. In an appeal arising from an order of acquittal, the
appellate Court is not precluded from appreciating the evidences on its
own if the reasons given by the learned trial Judge in passing the order of
acquittal, do not stand scrutiny and are against the weight of the evidences
adduced in the trial. The appellate Court, will be quite justified in setting
C aside the order of acquittal if it appears to the court of appeal that
improper consideration of the materials and evidences on recor.d was
made and the reasonings of the trial Judge are wholly unjustified. It is
only necessary that the court of appeal should weigh the reasonings of the
learned trial Judge with care and caution in the light of the evidences
adduced in the case by giving cogent reasons as to why such findings are
D unreasonable and against the evidence. [451B-C)

2.01. In the instant case, the High Court has taken care in analysing
each and every finding of the learned Sessions Judge in the light of the
evidences adduced in the case and has given cogent reasons as to why such
findings were unreasonable and not acceptable. It is an P• ..mitted position
E
that two persons suffered gun shot injuries and one of the jured persons
died on the spot and the other was removed to hospital. He got serious
injuries and later on sccummbed to such injuries. The mere fact that
there was enmity and bitterness between the two groups, by itself, does not
establish that the eye-witnesses falsely implicated the accused/appel-
F lant. [451D-E] ...
2.02. There are no intrin~ic discrepancies in the evidences of the
eye-witnesses. Even if it is assumed that such eye-witnesses belong to the
group of the complain.ant, their evidences are not liable to be discarded on
G that score if such evidences otherwise inspire confidence and get cor-
roborated by other evidences and from the nature of injuries, sustained by I-
the deceased persons. [452E]

2.03. All the findings made by the Sessions Judge were considered in
detail by the High Court and the findings of the learned Sessions Judge
H were not accepted by the High Court by indicating that such findings were
MOHD. ASLAM v. STATE OF U.P. [RAY, J.] 447

against the weight of the evidences and the same wert wholly un- A
reasonable. In the circumstances, there is no reason to take a contrary
view in this appeal. [452H]

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
554 of 1984.
B
From the Judgment and Order dated 27.9.1984 of the Allahabad
High Court in Government Appeal No. 1.634 of 1977

M.R. Sharma, Ms. Anjana Sharma and R.D. Upadhayaya for the
Appellant.
c
Arvind K. Nigam, Ms. Kamini J aiswal and A.S. Pundir for the
Respondent.

The Judgment of the Court was delivered by

G.N. RAY, J. This appeal is directed against the Judgment dated D
September 27, 1984 passed by the Division Bench of the Allahabad High
Court setting aside the judgment dated April 30, 1977 passed by the
learned Additional Sessions Judge, Second Court, Kanpur (Dehat). By the
impugned Judgment, the Division Bench of the Allahabad High Court
allowed the appeal preferred by the State of Uttar Pradesh against the E
judgment of acquittal in Sessions Trial No. 235 of 1976 and convicted the
accused/appellant Mohd. Aslam under Section 302 l.P.C. and sentenced
him to imprisonment for life.

-
• The prosecution story in short is that there is long standing enmity
between Abdul Salem and Abdul Hamid Kham Pradhan on one side and the F
complainant Abdul Hamid on the other. Such enmity arose out of rival claim
• in piacing 'sawai' on the Akhara ofTajias at the time ofMoharram. Sawai is a
kind offlag which is put on Tajias at the time ofMoharram. Over such dispute
a civil litigation was going on between the said parties and there were also
criminal proceedings under Section 107 read with Section 117 of the Code of
Criminal Procedure between the said parties. Shamim Raza was nephew and G
son-in-law of Abdul Hamid, the complainant and the said Shamim Raza was
doing pairvi of the said cases on behalf of Abdul Hamid. For the aforesaid
reasons, Abdul Salem and Abdul Hamid Khan Pradhan. became inimical
towards Shamim Raza and Abdul Hamid. Mohd. Aslam, the accused/appel-
lant is the son of Abdul Salem. Both the parties were residents of village Bara, H
448 SUPREME COURT REPORTS (1993] 2 S.C.R.

A within Policy Station Akbarpur in the District of Kanpur. On December 25,
1975 at about 6.00 P .M. Shamim Raza was sitting on a wooden bench in front
.
of a hair cutting shop ofliyas in village Raza. Mohd. Umar and Abdul Khaliq
(P.W.l) were also sitting with him and the said three persons were talking. I==
The Gumti of one Mohd. Laiq was at a short distance towards the east of that
place. Bhurey (P.W.2), Qamruddin (P.W.3) and Abdul Hamid were standing -,I
B near the said Gumit and had also been talking. There was light coming from
electric bulbs at that place. At that time, the accused/appellant, Mohd. Aslam
came there armed with a double barrel gun. He challenged Shamim Raza and
threatened to kill anyone who would come forward. Thereafter, he fired two
shots. By said shots, Shamim Raza and Mohd. Umar sustained gun-shot
c injuries and both of them fell down. Shamim Raza died on the spot and the
condition of Mohd. Umar also became serious. Such occurrence was seen by
Mohd. Umar, Abdul Hamid, Bhurey and Qamruddin. Peer Mohammed
_...
(P.W.10) took Mohd. Umar to Lala Lajpatrai Hospital at Kanpur for treat-
ment and at 7.'.j_O P,M. Dr.R.C. Asthana (P.W.8) examined Mohd. Umar.
Abdul Harnitl went to his house and got a report of the occurrence written by
D
Mohd. Raiiwan (P.W.4) and took the said report to Akbarpur Police Station
which was aoout 4 miles away and lodged the F.I.R. at 7.15 P.M. Station
Officer incharge of the Akbarpur Police Station, Mr. Jagdamba Prasad
Misra, t.ook up the investigation of the case and he interrogated Abdul
Hamid at the Police Station and thereafter reached the scene of occurrence
)--
E at about 7.55 P .M. He found the dead body of Shamim Raza lying at the scene
of occurn;nce and he prepared inquest report and other connected papers.
He also interrogated Bhurey, Qarnruddin and Abdul Khaliq who were the
· e¥e-witpessbs,. He also prepared the site plan and found blood on the wooden
berich and also on the ground and collected portion of the blood stained
- ~

wooden bench and blood stained bricks. The injured Mohd. Umar was
F
interrogated in th~ hospital on January, 1976. The post mortem examination .
on the body ofShamim Raza was performed by Dr. Prakash (P.W.6). Mohd.
-"I ~

Umar died in the hospital on January 4, 1976 and his post mortem examina-
tion was performed by Dr.RD. Misra at Kanpur on January 5, 1976.

G The accused/appj:llant Mohd. Aslam· denied the prosecution allega-
...
tions against him ahd alleged that he was falsely implicated on account of
enmity and party faction. He also denied that'he had been absconding from
......
the village and he examined two witnesses in defence. The learned Addi-
tional Sessions ,Judge did not find the prosecution case and the evidences
H acceptable. Accordingly, he acquitted the accused/appellant. The State
,,

/

MOHD. ASLAM v. STATE OF U.P. [RAY, J.] 449

).. thereafter preferred an appeal before the Allahabad High Court and as A
aforesaid, the Allahabad High Court allowed the said appeal, set aside the
judgment of acquittal passed by the learned Sessions Judge and convicted
the accused/appellant under Section 3021.P.C. and sentenced him to suffer
rigorous imprisonment for life.

-~
B
Learned counsel appearing for the accused/appellant has strenuously
contended that the High Court did not appreciate the sa!Utory principles
governing the judgment of acquittal. He has contended that the learned
Sessions Judge had taken pains in analysing in detail the evidences adduced
in the case and gave reasonings for each of the findings as to why the
prosecution case could not be accepted and what were the intrinsic deficien- c
· cy in the evidences adduced in the case in support of the prosecution. The
learned counsel has contended that the law is well settled that in a case of
;;...
acquittal, the appellate Court should not interfere with the judgment of
acquittal if such judgment is based on consideration of the evidences ad-
duced in the case and there is no perversity in coming to the finding for
D
passing the judgment of acquittal. In such a case of acquittal, the High Court
in exercise of its appellate power should not endeavour to appreciate the
evidence on its own in order to come to different finding unlike in an appeal
arising from the judgment of conviction. The learned counsel has contended
that it has been established convincingly that there was party faction between
the two groups over a dispute to place Sawai on Tajias and both civil and E
criminal proceedings were instituted between the two groups.

The learned counsel has contended that Abdul Hamid, the father-
in-law of the deceased, Shamim Raza, was the principal man with whom
Abdul Salem and Abdul Hamid Khan Pradhan had disputes and differen- F
ces. There was no earthly reason to bear malice and grudge against Shamim
;... Raza who was only a son-in-law of Abdul Hamid Khan Pradhan. Accord-
ingly, there was no reason to kill him particularly in the presence of
eye-witnesses as alleged. Such fact was taken note of by the learned
Sessions Judge in analysing the acceptability of the prosecution case and
credibility of the witnesses examined in support of the prosecution case. G
The learned counsel for the appellant has also submitted that there was no
reason for injuring Mohd. Umar by the accused/appellant. He has eon-
tended that the alleged incident of gun shot injuries had not happened in
the manner alleged by the prosecution but after such incident, the com-
plainant and th~ other alleged eye-witnesses falsely implicated the ac- H
·c
450 SUPREME COURT REPORlS [1993] 2 S.C.R.

A 'cused/appellant because of the old enmity between. the two groups. The
·. , learned counsel has contended that in a very short time, a written com-
plaint was lodged in the Akbarpur· Police Station which is admittedly fotir
n'.utes away from t~,e place of occurrence. The prosecution story is that after
i. the incident the said written complaint was reduced in writing by a person
-s ' other than the complainant. and thereafter the complainant went to the
Police Station to file the written complaint. If the incident had taken place
at about 6.00 P.J\L as alleged by the prosecution, it is practically impossible
\ to lodge the said written F.I.R. at Akbarpur Police Station by 7.15 P .M.,
particularly when Abdul Hamid, ·the complainant did not straighta\vay go
to the Akbarpur. Police Station but he had been to his house and got .a
C report of the occurrence written by Mohd. Raizwan (P.W.4) and· then
··· ·todged the F.l.R. at the Akbarpur Police Station. The learned Sessions
Judge had taken note of this very important fact in ·not accepting the
prosecution case. Unfortunately, the High Court failed to appreciate the
strong reasonings given by the learned Sessions Judge in not accepting the
D prosecution case. ·The learned counsel has· also submitted. that there is
serious discrepancy so far as the injury of Mohd. Umar is ci:Jncemed.
Admittedly, Mohd. Umar got injtired by a gun shot at the back but the
manner in which the injured was sitting and the direction from which the
gun was fired.by the appellant, could not have caused gun shot injuries at
the back of Mohd. Umar. The learned Sessions Judge having noted such
E discrepancies had rightly rejected the prosecution case implicating the :
accused/appellant. He has also submitted that the doctor had noted that
M~hd. u~,sustained gun shot injuries from a bullet but the injuries.
sustained by the other deceased, namely, Shamiin Raza was a gun shot
injury from pellets. It was nobodfs case that different guns had been used
by the accused/appellant for injurllig the said two persons differently.
.![ Because of such discrepancy, the learned Sessions Judge was not illclined
' '•. ' to accept the prosecution case and the suggestion given by the prosecution
witnesses that Mohd. Umar might have turned his back in a reflex and
received'the gun shot injuries at the back was not accepted by the learned
0

Sessions Judge. The learned counsel for the appellant has also contended
G that the alleged eye-witnesses were in the faction of the complainant Abdul
Hrurud and they were partisan witnesses. Accordingly, their testimonies
were required to be considered with extreme care and caution. The learned '}1~ ,__
. -< ~
1
Sessions Judge,' therefore, after. noting the various discrepancies in the
· prosecution · case; was not inclined to place reliance on the evidences ·
H adduced by tlie 'alleged eye-witnesses and acquitted the accused/appellant. •
MOHD. ASLAM v. STATE OF U.P. [RAY, J.] 451

• Such order of acquittal, in the facts of the case and the reasons indicated A
by the learned Sessions Judge, was not required to be interfered with in
appeal by the High Court.

We are, however, unable to accept the submissions made by the
learned counsel for the appellant. In an appeal arising from an order of
~ B
acquittal, the appellate Court is not precluded from appreciating the
evidences on its own if the reasons given by the learned trial Judge in
passing the order of acquittal, do not stand scrutiny and are against the
weight of the evidences adduced in the trial. The appellate Court, will be
quite justified in setting aside the order of acquittal if it appears to the
court of appeal that improper consideration of the materials and evidences c
on record was made and the reasonings of the trial Judge are wholly
unjustified. It is only necessary that the court of appeal should weigh the
reasonings of the learned trial Judge with care and caution in the light of
the evidences adduced in the case by giving cugent reasons as to why such
findings are unreasonable and against the evidence. In the instant case, the D
High Court has taken care in analysing each and every finding of the
learned Sessions Judge in the light of the evidences adduced in the case
and has given cogent reasons as to why such findings were unreasonable
and not acceptable. It is an admitted position that the two persons suffered
gun shot injuries on December 25, 1975 in the evening and one of the
injured persons died on the spot and the other was removed to hospital. E
He got serious injuries and later on sccummbed to such injuries. The mere
fact that there was enmity and bitterness between the two groups, by itself,

- does not establish that the eye-witnesses falsely implicated the accused/ap-
pellant. Shamim Raza was the son-in-law of Abdul Hamid and it was
established in evidence that he was looking after the cases between the F
parties and making 'pairvi'in civil and criminal cases. In our view, the High
,\...-
Court is justified in holding that because of such positive role taken by
•' Shamim Raza, he had incurred displeasure of the other group which acted
as a motive for th~ gun shot injuries. The learned Sessions Judge doubted
the prosecution case because of lodging the F.I.R. at 7.15 p.m. at Akbarpur
Police Station wliich was about four miles away from the place of occur- G
• rem 2 wh~re the incident, according to the prosecution, had taken place at
~ about 6.00 P.M. We do not think that such F.I.R. could not have been
·lodged by that tiJ11e. The High Court has considered the reasonings of the
learned Sessions Judge on the question of lodging the F.l.R. at Akbarpur
Police Station within a short time and has, in our view, given very good H
452 SUPREME COURT REPORTS [1993) 2 S.C.R.

A reasons in not accepting the views entertained by the learned Sessions ~
Judge. In our view, the learned Sessions Judge was also not justified in
holding that the gun shot injuries suffered by Mohd. Umar had not been
properly explained by the prosecution because the doctor had noted that
such injuries were caused by bullet and not by pellets. The injuries suffered
by Mohd. Umar as noted by the doctor do not run counter to the prosecu-
B tion case that such injuries were caused by the gun used by the accused/ap- ,J
pellant. The High Court is right, in our view, in holding that the size of the
pellet depends on the type of cartridge used in a gun. It cannot be held as
a matter of course that simply because ·the pellets injuring the deceased
Sharnim Raza were smaller in size than the size of the pellets used in
c injuring Mo~d. Umar, both the injuries could not have been inflicted by
the same gun. The High Court, in our view, is also justified in not accepting
the reasonings of the learned Sessions Judge that the injuries caused at the
back of Mohd. Umar were not possible and run counter to the evidences
adduced by the prosecution. There was interval though very short between
the two shots and it is not at all unlikely or highly improbable that because
D
of the inherent reflex, the other injured, Mohd. Umar, had turned his side
and received the injuries at the back portion. In the mstant case, there are
eye-witnesses to the occurrence and there are no intrinsic discrepancies in
their evidences. Even if it is assumed that such eye-witnesses belong to the_
group of the complainant, their evidences are not liable to be discarded on
E that score if such evidences otherwise inspire confidence and get cor.-
roborated by other evidences and from the nature of injuries, sustained by
the deceased persons. The High Court is right in holding that although
Abdul Khaliq (P.W.l) belonged to a group and appeared to be a partisan
witness, his evidence was not required to be discarded on that ground but
was required to be closely scrutilised. The High Court, in our view, is also
F
justified in holding that QallJ.ruddin (P.W.3) was not related to Shamirn
,....
Raza, dece.ased or the complainant and he did not belong to any of the
rival groups. This witness had no enmity with the accused/appellant or his
father. Qarnruddin (P.W.3) has been rightly held by the High Court, as an
' ...
independent and reliable_witness.
G
It appears to us that all the findings made by the learned Sessions •
Judge were considered in detail by the High Court and the findings of the --11
learned Sessions Judge were not accepted by the High Court by indicating '
that such findings were against the weight of the evidences and the salhe
H were wholly unreasonable. In the aforesaid circumstances, we do not find

l
MOHD. ASIAM v. STATE OF U.P. [RAY, J.) 453

any reason to take a contrary view in thi~ appeal and set aside the order A
of conviction made by the High Court. The appea~ therefore fails and is
dismissed. By the Order dated April 8, 1986, this Court granted bail to the
accused/appellant. In view of tile dismissal of this appeal the bail stands
cancelled and the accused/appellant is directed to surrender and serve out
the sentence.

V.P.R. A1>peal dismissed.

-