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2017 DIGILAW 1221 (ALL)

STATE OF U. P. (STATE APPEAL) v. KAILASH

2017-05-08

AJAI LAMBA, VIJAY LAXMI

body2017
JUDGMENT : VIJAY LAXMI, J. 1. Challenge in this appeal is to the judgment and order dated 26.03.1982 passed by the V, Additional District and Sessions Judge, Hardoi acquitting the accused respondents, namely, Kailash A1, Ram Bilas A2, Dinesh A3 and Ramesh A4 under Sections 148 and 307/149 I.P.C. in Session Trial No.569 of 1980. Admittedly, cross case, Sessions Trial No.137/79 State v. Ram Asrey of this case has ended in acquittal and no appeal has been filed challenging the said acquittal by the State. 2. The incident occurred on 06.01.1978 at 9.00 a.m. in the Barotha of Ram Asrey, Complainant, PW1 (herein described as complainant) who suffered fire arm injuries in the incident. The FIR written by Shashi Prabha Devi, PW2 the daughter of the complainant on his dictation was lodged on the same date at P.S. Mallawan. The accused persons were charged under Section 148 and 307/149 I.P.C. All the accused pleaded not guilty and claimed to be tried. The evidence was recorded separately in said trials and separate judgments were delivered by the trial Court. 3. The case of the prosecution as unfolded during the trial through F.I.R. and the evidence may be described as under:- The complainant Ram Asrey and the accused Kailash Narain Tripathi, Ram Bilas Son of Lalta, Dinesh and Ramesh sons of Goverdhan are residents of the same village Lacchipur, Police Station Mallawa, District Hardoi. There has been enmity of Ram Asrey with accused Kailash, Ram Bilas sons of Lalta and Dinesh, Suresh and Ramesh sons of Goverdhan since the Case Crime No.386 of 1976 Sarkar v. Kailash Narain and Others under Section 107/116 Cr.P.C. was initiated by the complainant against them. The accused Kailash and others became inimical with the complainant and were trying to kill Ram Asrey since then. It is in this background that on 06.01.1978 at about 9.00 a.m. when Ram Asrey was sitting in his Barotha, the accused Kailash A1, Ram Bilas A2, Dinesh A3, Ramesh A4 being armed with guns alongwith Ram Chandra reached on his chabutra and attacked Ram Asrey. All the four accused started firing upon the complainant who got injured. When he tried to rush inside his house raising outcry, the accused Kailash, Ram Bilas, Dinesh, Ramesh and Ram Chandra entered his Barotha and again fired upon the complainant. He was hit on his right shoulder and left buttock below his waist. All the four accused started firing upon the complainant who got injured. When he tried to rush inside his house raising outcry, the accused Kailash, Ram Bilas, Dinesh, Ramesh and Ram Chandra entered his Barotha and again fired upon the complainant. He was hit on his right shoulder and left buttock below his waist. Hearing his outcry his son and other children reached the spot. The accused made one fire from chabutara and two fires were made by them on reaching barotha. One of the fire made by them in Barotha hit Ram Chandra, who fell down on the spot and died. This incident was seen by the children of the complainant who had come to the door of the galiyara on hearing hue and cry raised by the complainant. The site plan of the occurrence shows that there is a chabutara in front of the house of the complainant Ram Asrey and then in the west of this chabutara there is a barotha and in the north west of this barotha there is a galiyara which leads to the courtyard inside the house and it is in the north west of this courtyard that there is a staircase leading to the first floor on the roof. 4. The report was written by Shashi Prabha on dictation of the complainant which is Exhibit Ka1 which was sent to police station Mallawan, Hardoi through chowkidar Jai Jai. The thana Mallawan is at a distance of about 3 miles from the place of the occurrence. Investigation was conducted by Ram Lal Verma PW4 S.O. GRP who visited the spot on 06.01.1978 and prepared site plan exhibit Ka-4, recorded the statement of the complainant Ram Asrey, his daughters Km. Shashi Prabha, Km. Shashi Rashmi, his son Ashwini Kumar, and wife Smt. Swaroop Rani. The statement of the complainant Ram Asrey was recorded at his house. S.O. completed the investigation and the charge sheet exhibit Ka-5 was submitted against 4 accused persons. 5. The proceeding under Section 302 I.P.C. was initiated in cross case ST. no. 137/79 against Ram Asrey and his son Sarangdhar. The FIR was lodged by Kailash on 06.07.1978 stating that in the morning one Ram Chandra Son of Ram Bharosey Kurmi came to house of Kailash Narain who wanted to purchase dried tree of the complainant for few. 5. The proceeding under Section 302 I.P.C. was initiated in cross case ST. no. 137/79 against Ram Asrey and his son Sarangdhar. The FIR was lodged by Kailash on 06.07.1978 stating that in the morning one Ram Chandra Son of Ram Bharosey Kurmi came to house of Kailash Narain who wanted to purchase dried tree of the complainant for few. Kailash took Ram Chandra alongwith Ramesh to his brother towards west of his village and showed him the dried tree. On their way back to the house of Kailash to settle the price of the tree, when they reached in front of the house of the accused Ram Asrey and his son Sarangdhar were standing in the Barotha of their house armed with guns. Seeing the complainant, Ram Asrey challenged them to kill saying that you create troubles in our affairs. On outcry of Kailash, the witnesses Khanjan Chamar, Raj Bahadur Nai and Deewan etc. of the village reached on the spot. Ram Asrey fired a shot on Kailash to kill him but he escaped. Sarangdhar also made a fired on him which hit Ram Chandra in his abdomen who was coming behind him. Ram Chandra fell down and died in galliyara. On interference of witnesses, the accused entered their house. The FIR was lodged by complainant Kailash Narain with the P.S. concerned on the same date. 6. The prosecution relied on the testimony of 5 witnesses namely Ram Asrey Shukla PW1, Dr. J.K. Verma PW2, Km. Shashi Prabha PW3, Ram Lal Verma PW4, and Dr. A.K. Mehrotra PW5 and also placed on record certain exhibit before the trial Court. The accused answered queries put to them under Section 313 Cr.P.C. They stated their false implication on account of enmity. The accused Kailash stated that on the date of the occurrence Ram Chandra had come to him to purchase dried wood. He was taken by Kailash to his grove for showing the dried Mango tree. When he alongwith Ram Chandra and Ramesh were returning from the grove and on their way reached in front of door of the complainant, they saw that Ram Asrey was standing at his door with a gun. Kailash was in front followed by Ram Chandra and then by Ramesh. Seeing them, Ram Asrey challenged them and fired upon him but he escpaed. Ram Chandra also took out his pistol and fired upon Ram Asrey. Kailash was in front followed by Ram Chandra and then by Ramesh. Seeing them, Ram Asrey challenged them and fired upon him but he escpaed. Ram Chandra also took out his pistol and fired upon Ram Asrey. Meanwhile Sarangdhar, the son of the complainant, came there running with a gun in his hand, and fired upon Ram Chandra who was hit. He fell down in the street and died there. The other accused adopted the statement of the accused Kailash. 7. After appreciating the evidence on record Learned trial court has acquitted the accused-respondents against which State has preferred this appeal. 8. Smt. Smiti Sahay, learned Counsel for the appellant State opposed the judgment of the trial Court. It is argued by learned A.G.A on behalf of Appellant State that the statements of PW-1 and PW- 2 stand fully proved and corroborated from the evidence of each other and other evidence available on the record. Their evidence lends full support to the case of prosecution and corroborates the medical evidence. 9. Learned counsel for the accused/respondent argued that the evidence of P.W. 1 and 3, does not merit any credence, in as much as they were interested witnesses and there were lot of discrepancies as between FIR and their evidence submitted before the Court. On behalf of the respondent, it was contended that there is absolutely no evidence against the respondent. They have been falsely implicated in this case. There was no motive for them to commit the attempt of murder of the complainant. 10. We have heard the learned Counsel appearing the State as also the learned Counsel appearing for the Respondents. 11. At the outset, it is necessary to mention that the principal witnesses are PW- 1 to PW- 3 and there is no reason not to give credence to their evidence. PW-1, Ram Asrey, the author of the FIR, has testified that he got the FIR of the incident prepared by dictating it to his daughter and then lodged it at Police Station through chawkidar the same day. Thereafter entry was made in the general diary. He has deposed that the accused belonged to his own village. The case under Section 107 Cr.P.C. was initiated by the complainant against Kailash and others in the year 1975, thus, the accused had enmity with the complainant. Thereafter entry was made in the general diary. He has deposed that the accused belonged to his own village. The case under Section 107 Cr.P.C. was initiated by the complainant against Kailash and others in the year 1975, thus, the accused had enmity with the complainant. On account of this enmity on 06.01.1978 at about 9.00 a.m. when he was sitting in his Barotha, accused Kailash, Ram Bilas, Dinesh, Ramesh came to his chabutra being equipped with the guns. Ram Chandra also came with them but having no weapon in his hand. The respondents/accused made fire on the complainant who got injured. He tried to run away inside his house. He fell down. Meanwhile the accused entered his Barotha and further shot two fires in the Barotha causing injury to the complainant. The other fire hit Ram Chandra who was also then in Barotha. Being hit by fire arms of companion accused, Ram Chandra ran away towards the galiyara/rasta saying that **gk; rqe yksxksa us gesa gh ekj M+kykA** who fell down in rasta and died. The other accused also ran away behind him. The complainant rushed inside his house raising outcry on first fire on which his wife, daughter Shashi Prabha, Shashi Rashmi and his son rushed to the gallery of their house. As soon as the complainant reached the courtyard his daughter closed the door of galliyara from inside. The complainant went up to the roof of his house. He stated that the proceedings under Section 107 Cr.P.C. were initiated by him against Kailash, Ramesh and Dinesh and others. It was also stated that during election of Gaon Panchayat he supported Keshav who was defeated by Kailash who was continuing as Pradhan since then. The election was held 10 to 12 years back. The proceedings under Section 107 continued upto 1977 and the incident occurred in 1978. The complainant is a Lekhpal. After incident he was taken by the police in a cart to the bus stand and from there to Hardoi hospital by a bus. He did not go to police station. He told to the investigating officer about the places from where the firing was made. During cross examination complainant specifically stated that when the accused reached his chabutra they shot one fire from chabutra and the two fires were made by them when they entered the barotha. He did not go to police station. He told to the investigating officer about the places from where the firing was made. During cross examination complainant specifically stated that when the accused reached his chabutra they shot one fire from chabutra and the two fires were made by them when they entered the barotha. He was hit by the fire made from chabutra and another fire made from barotha. Ram Chandra was hit by the third fire made by the accused from barotha. The complainant was hit by two shots. When he was running inside his home through galiyara he was hit by gun shot on his buttock. The level of barotha is one balisht higher than the chabutra. He stated that his elder son was Sarangdhar who was brought up in his nanihal from the age of 8 to 10 years and was permanently residing there. At the time of incident his age was 24- 25 years who was not present at home. He denied the suggestion that on the date of the incident kailash was returning from his grove alongwith Ram Chandra and Ramesh and that he made any fire on Kailash from his pistol. He also denied the suggestion that his son Sarangdhar made any fire on Ram Chandra on account of which he died. 12. Km. Shashi Prabha, his daughter PW-3 has deposed that she has seen Ram Chander going out of the barotha and all the four accused persons followed him. PW-3 has also identified the accused persons. That apart, PW-3 has supported the testimony of PW-1 lent support to the case of the prosecution and corroborated in each necessary particulars. PW-3 stated that on the date of the incident she alongwith her mother, younger sister and brother were sitting in their courtyard. Her father was sitting in barotha. When she heard the cries of her father, she rushed to galiyara and saw that Ram Chandra was running out of barotha. He had no fire arm in his hand and the other accused also were running behind him. The blood was oozing out from the body of Ram Chandra. When his father reached inside courtyard she closed the door of gallery, his father went up to the roof. He had no fire arm in his hand and the other accused also were running behind him. The blood was oozing out from the body of Ram Chandra. When his father reached inside courtyard she closed the door of gallery, his father went up to the roof. The chowkidar Jai Jai Ram was seen by them from roof in the rasta who was called inside the house and the FIR was given to chowkidar for getting it registered to the P.S. concerned. She stated during cross examination that she heard one fire when she was in her courtyard and two fires when she was going towards the gallery. The investigating officer had taken the blood from the spot. She denied the suggestion that fire was made by his father or his brother Sarangdhar on the date of the incident which caused death of Ram Chandra. Though there has been roving cross-examination, nothing has been really elicited from PW-1 and PW-3 to make their testimony impeachable. 13. The prosecution has proved the presence of the witnesses PWs 1 and 3 at the place of occurrence and there is no reason to disbelieve their version with regard to the accused persons committing the attempt of murder of the complainant. 14. As rightly contended by the Learned Counsel for the State, the medical evidence substantially establishes that the accused attempted to kill the injured which discloses the coordinated vengeance. Dr. J.K. Verma PW2 proved the injury report Exhibit Ka-2 of the complainant where following injuries were noted: (i) Multiple gunshot wounds of entry (one big of 3 cm x 3.5 cm and other of .8 cm x .8 cm to .8 cm x 1 cm) depth not proved in the interest of the patient on the front right side of the neck and chest in an area of 15 cm x 7 cm from lavel of Adam's apple down-ward and just lateral to mid line towards right side. No blackening or tatooing are present but only the margins of big wound were backward. Margins are inverted and lacerated. Swelling was present over this area and right shoulder. (ii) A guns shot wound of entry of 2.5 cm x 2 cm x depth not proved in the interest of the patient. No blackening or tatooing are present but only the margins of big wound were backward. Margins are inverted and lacerated. Swelling was present over this area and right shoulder. (ii) A guns shot wound of entry of 2.5 cm x 2 cm x depth not proved in the interest of the patient. On the left side back in the posterior axillary line and just below the level of highest point of iliac crest with lacerated inverted margins, blackening present around the margins of the wound. 15. Dr. J.K. Verma PW2 stated that the injuries were caused by fire arm. He stated as under: Injury No. 1 lkeus ls Qk;j gksus ij gh vkbZ gksxhA Injury No. II side ls vkbZ gksxhA pksV uEcj 2 [kM+s gksus ij Hkh vk ldrh gSA 16. He further stated that in the X-ray plate No.34 radio opaque shadows of different sizes were found in the chest and right shoulder of the complainant. As regards the injuries of Ram Chandra, Dr. J.K. Verma PW2 stated that deceased Ram Chandra could hardly have spoken one and half sentence or would have crossed one or two paces after getting fire arm injury. 17. The statement of the injured PW1 is found to be clear, cogent and specific proving charges against the accused under Section 148 and 307 r/w 149 IPC. The statement of victim was corroborated by his daughter PW3 who rushed to the spot having been attracted by alarm reached by the injured. Their testimony has impressed us and we find them to be truthful and reliable witnesses. The evidence of PW3 who had seen the Ram Chandra and the accused running away from the scene of the crime lends credence to the prosecution version. The suggestion was given to the injured during cross examination that the respondents accused were falsely implicated in this case on account of their enmity. We find no reason that the injured and his daughter would go to that length to falsely implicate the respondents. The medical evidence fully supported the ocular evidence and therefore, the ultimate conclusion of finding the respondents were guilty of the offence, was fully established. 18. Once their evidence is accepted, their evidence proves the commission of crime by the accused certain. 19. The present case involves consideration on following issues. The medical evidence fully supported the ocular evidence and therefore, the ultimate conclusion of finding the respondents were guilty of the offence, was fully established. 18. Once their evidence is accepted, their evidence proves the commission of crime by the accused certain. 19. The present case involves consideration on following issues. First issue, being the sufficiency of the testimonies of PW-1 and PW-3 to convict the accused persons without any corroboration from an independent witness. The reason assigned by the Trial Court in recording acquittal of the accused is that P.W.1 and P.W.3 were interested witnesses. PW-1 and PW-3 are related witnesses as they are father and daughter and no independent witness was examined by the prosecution. 20. With respect, in our opinion, the said ground is invalid. For, in the circumstances of the case, the complainant PW-1 was injured himself and his daughter PW-3 was the most natural witness; she was the person present in the courtyard of her house at the time of the occurrence, and who saw the accused running from the spot. True, it is she is the daughter of the injured Ram Asrey PW1; but she cannot be called an 'interested' witness. She is related to the injured. 'Related' is not equivalent to 'interested'. A witness may be called 'interested' only when he or she derives some benefit from the result of a litigation; in the decree in a civil case, or in seeing an accused person punished. A witness who is a natural one in the circumstances of a case cannot be said to be 'interested'. 21. However, there is no bar on the admissibility of a statement by related witnesses supporting the prosecution case, but it should stand the test of being credible, reliable, trustworthy, admissible in accordance with law and corroborated by other witnesses or documentary evidence of the prosecution. The Supreme Court has held in State of A.P. v. S. Rayappa and Ors. AIR 2006 SC 3709 as under in this regard: By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. AIR 2006 SC 3709 as under in this regard: By now it is a well-established principle of law that testimony of a witness otherwise inspiring confidence cannot be discarded on the ground that he being a relation of the deceased is an interested witness. A close relative who is a very natural witness cannot be termed as an interested witness. The term interested postulates that the person concerned must have some direct interest in seeing the accused person being convicted somehow or the other either because of animosity or some other reasons. On the contrary it has now almost become a fashion that the public is reluctant to appear and depose before the Court especially in criminal case because of varied reasons. Criminal cases are kept dragging for years to come and the witnesses are a harassed lot. They are being threatened, intimidated and at the top of all they are subjected to lengthy cross-examination. In such a situation, the only natural witness available to the prosecution would be the relative witness. The relative witness is not necessarily an interested witness. On the other hand, being a close relation to the deceased they will try to prosecute the real culprit by stating the truth. There is no reason as to why a close relative will implicate and depose falsely against somebody and screen the real culprit to escape unpunished. The only requirement is that the testimony of the relative witnesses should be examined cautiously. The High Court has brushed aside the testimony of P.W.1 and P.W.2 on the sole ground that they are interested witnesses being relatives of the deceased. 22. It is true PW3 is related witness in as much as she happens to be the daughter of the injured but that, in our view, would not render her evidence unworthy of credence. Nothing inherently improbable has been brought out which may justify rejection of the testimony of PW-3. In the instant case P.W. 3 had no interest in protecting the real culprit, and falsely implicating the respondents. Her presence at the time and place of incident is established. The evidence of PW-3 further gets corroborated by the fact that she wrote the FIR on dictation of the complainant. 23. In the instant case P.W. 3 had no interest in protecting the real culprit, and falsely implicating the respondents. Her presence at the time and place of incident is established. The evidence of PW-3 further gets corroborated by the fact that she wrote the FIR on dictation of the complainant. 23. The Supreme Court has held in Manga alias Man Singh v. State of Uttarakhand (2013) 7 SCC 629 , that it is the quality of the witness that matters and not the quantity, when the related witness was examined and found credible. The time honoured principle is that evidence has to be weighed and, not counted. On this principle stands the edifice of Section 134 of the Evidence Act. The test is whether the evidence has a ring of truth, is cogent, credible and trustworthy, or otherwise. In such a case non-examination of an independent witness would not be fatal to the prosecution case. In the present case, the prosecution witnesses PW-1 and PW-3, corroborated each other, and are completely reliable. 24. The second ground on which the Trial Court refused to place reliance on the evidence of PW 1 and 3 was that there were "material discrepancies". As indicated above we have perused the evidence of PW 1 and 3. However, we have not found any "material discrepancies" in their evidence. The discrepancies referred to by the Trial Court are in our opinion, minor, insignificant, natural and not 'material'. 25. It is argued that discrepancies are there in the statement of PW1 which is inconsistent with the FIR. It is an after thought. To quote the observations of trial court: From this statement it is evident that the accused had fired upon the complainant Ram Asrey after entering into barotha of his house and that would mean that three gunshots were fired by the accused in the barotha out of which two had hit the complainant and one had hit Ram Chandra, the companion of the accused. The statement of Ram Asrey that one gunshot had hit him when the accused had fired from the chabutara and the other gunshot fire hit him when the accused had entered in the barotha can be said to be an after thought and cannot be believed. 26. In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. 26. In the depositions of witnesses there are always some normal discrepancies however honest and truthful they may be. These discrepancies are due to normal errors of observation, normal errors of memory due to lapse of time, due to mental disposition such as shock and horror at the time of the occurrence, and the like. Material discrepancies are those which are not normal, and not expected of a normal person. As indicated above we have not found any material discrepancies in the evidence of the P.W. 1 and P.W. 3 from FIR. 27. Evidence of PW1 and PW3 have been analyzed with great care and caution. Minor details which are not indicated in the first information report are later on elaborated in court do not justify a criticism that the case originally presented has been abandoned to be substituted by another one. PW's 1 evidence appears to be clear, cogent and trustworthy. Nothing substantial has been brought on record to disregard the testimony of this witness. The evidence of PW1 alone was sufficient to fix the guilt of the accused persons. Merely because of the fact that there were some minor omissions, which are but natural, no adverse inference could be drawn against the Prosecution. Necessarily there cannot be exact and precise reproduction in any mathematical manner. What needs to be seen is whether the version presented in the court was substantially similar to what was stated during investigation. It is only when exaggerations fundamentally change the nature of the case, the court has to consider whether the witness was telling the truth or not. The so-called improvements do not, in any way, introduce a new facet of the case. Every omission is not a contradiction. The evidence of PW 1 and 3 was truthful evidence. Section 149 of the Act is clearly attracted. This is not a case where anything substantial has been brought on record to disregard the evidence of PW 1 and 3. 28. The third ground relates to the place of occurrence. It is argued that the place of the occurrence was doubtful since the dead body of Ram Chandra was found in rasta which was against the version of FIR and the statement of PW1. 28. The third ground relates to the place of occurrence. It is argued that the place of the occurrence was doubtful since the dead body of Ram Chandra was found in rasta which was against the version of FIR and the statement of PW1. To quote the observations of Trial court: The dead body of Ram Chandra at point 'F' in the galiyara out side of the house of the complainant Ram Asrey and this also disbelieves the statement of Ram Asrey that Ram Chandra was hit and injured by one of the gunshot fire inside his barotha by the accused as written report Ext.Ka-2 mentions that Ram Chandra had fallen down at the spot and died there. The statement of Dr. J.K. Verma is also to the effect that after receiving injuries as mentioned in the post mortem report Ext.Kha- 2 the deceased Ram Chandra could hardly have moved a pace or so and could utter a sentence or half. 29. There is dispute with regard to the place of commission of the crime. If we critically examine the evidence of PW 1, there is nothing to doubt the correctness of the version given by him. PW-1, complainant in the present case has proved the FIR (Ext. Ka-1) lodged by him. In cross examination there is no material contradiction between the facts stated in the FIR and his evidence in the trial Court which has been corroborated by the evidence of PW-3. 30. FIR is not encyclopedia of all the facts relating to crime. The only requirement is that at the time of lodging FIR, the informant should state all those facts which normally strike to mind and help in assessing the gravity of the crime or identity of the culprit briefly. In State of U.P. v. Naresh and Ors., the Supreme Court observed as under: It is settled legal proposition that FIR is not an encyclopedia of the entire case. It may not and need not contain all the details. Naming of the accused therein may be important but not naming of the accused in FIR may not be a ground to doubt the contents thereof in case the statement of the witness is found to be trustworthy. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. The court has to determine after examining the entire factual scenario whether a person has participated in the crime or has falsely been implicated. The informant fully acquainted with the facts may lack necessary skill or ability to reproduce details of the entire incident without anything missing from this. Some people may miss even the most important details in narration. Therefore, in case the informant fails to name a particular accused in the FIR, this ground alone cannot tilt the balance of the case in favour of the accused. (Vide: Rohtash v. State of Rajasthan (2006) 12 SCC 64 ; and Ranjit Singh and Ors. v. State of Madhya Pradesh JT 2010 12 SC 167). 31. In the instant case, it is quite clear that PW-1 and PW-3 have fully proved the incident and corroborated the statements mentioned in the FIR and there is no material inconsistency in the statements of the two witnesses. There is no material contradiction in the cross examination and the entire facts of the FIR which have been fully supported by the statements of the two aforesaid witnesses. We have read the evidence of PWs. 1 and 2 as a whole. Their deposition inspire confidence. Therefore, conclusion of the learned Trial Judge that there were material discrepancies in their statements is erroneous. As already discussed, the doubts entertained by the learned Trial Judge in this case were based on minor discrepancies and inconsistencies. With regard to doubts entertained by Courts, the Supreme Court observed in the case of State of U.P. v. Krishna Gopal, 1989 CriLJ 288 that while the protection given by the criminal process to the accused persons is not be eroded, at the same time, uniformed legitimization of trivialities would make a mockery of administration of criminal justice. In such scenario we cannot give any weightage to said argument of the counsel for the respondents. 32. From the perusal of the medical report and the statement of the doctor it is clearly evident that the fire-arm injuries on the victim person were found to be on the right shoulder and left buttock. According to the statement of PW-1, the injuries were caused by gun shots. A perusal of the evidence of PW-1 unmistakably makes it quite clear that on the day of incident, Ram Asrey was sitting in his barotha at about 9.00 am. Accused reached on his chabutra. According to the statement of PW-1, the injuries were caused by gun shots. A perusal of the evidence of PW-1 unmistakably makes it quite clear that on the day of incident, Ram Asrey was sitting in his barotha at about 9.00 am. Accused reached on his chabutra. Then followed the assault. They made fire on him. The bullet has hit him. He rushed inside his house but in the meantime accused reached the barotha and shot two fires one of which hit the informant PW1 and another hit Ram Chander. 33. If the witnesses already examined are reliable and the testimony coming from their mouth is unimpeachable the court can safely act upon it, uninfluenced by the factum of non-examination of other witnesses. It is not even suggested by the defence that they were not present at the place of the incident. The injuries sustained by the complainant are not just minor and certainly not self-inflicted. There is apparently no reason why they would tell a lie. The genesis of the incident is brought out by witness PW1 and PW3. In fact, the presence of the complainant and the accused persons on the spot is not disputed. How the complainant suffered fire arm injuries is proved by himself and corroborated by PW3. No explanation of the injuries by the accused sustained by the complainant have assumed significance. The evidence available on record shows and that appears to be very natural that as soon as the accused persons had reached the chabutra of the house of the complainant they opened the assault. 34. We have minutely scrutinized the statements of all the witnesses and found them consistent and reliable. With the assistance of the learned Counsel for the parties we have gone through the evidence adduced and on our independent appreciation we find the witnesses consistent and reliable in their narration of the incident. In our opinion minor discrepancies are there which do not cast any infirmity in the prosecution case. 35. Next ground relates to implications of explanation given by accused in their statements under Section 313 Cr.P.C. It is a case where the entire incriminating material evidence was put to the accused while they were being examined under section 313 Code of Criminal Procedure, 1973. 35. Next ground relates to implications of explanation given by accused in their statements under Section 313 Cr.P.C. It is a case where the entire incriminating material evidence was put to the accused while they were being examined under section 313 Code of Criminal Procedure, 1973. The accused has an option and where he avails that option in his statements made under section 313 Code of Criminal Procedure, 1973 and explains the circumstances appearing against him as well as put forward his defence, then his such statement, in so far as it supports the case of the prosecution, can be used against him for rendering conviction. In Ramnaresh and Ors. v. State of Chhattisgarh AIR 2012 SC 1357 the Supreme Court observed as under: In terms of section 313 Code of Criminal Procedure, 1973, the accused has the freedom to maintain silence during the investigation as well as before the Court. The accused may choose to maintain silence or complete denial even when his statement under section 313 Code of Criminal Procedure, 1973 is being recorded, of course, the Court would be entitled to draw an inference, including adverse inference, as may be permissible to it in accordance with law. Right to fair trial, presumption of innocence unless proven guilty and proof by the prosecution of its case beyond any reasonable doubt are the fundamentals of our criminal jurisprudence. When we speak of prejudice to an accused, it has to be shown that the accused has suffered some disability or detriment in relation to any of these protections substantially. Such prejudice should also demonstrate that it has occasioned failure of justice to the accused. One of the other cardinal principles of criminal justice administration is that the courts should make a close examination to ascertain whether there was really a failure of justice or whether it is only a camouflage, as this expression is perhaps too pliable. Ref. Rafiq Ahmed @ Rafi v. State of Uttar Pradesh (2011) 8 SCC 300 . It is a settled principle of law that the obligation to put material evidence to the accused under section 313 Code of Criminal Procedure, 1973 is upon the Court. Ref. Rafiq Ahmed @ Rafi v. State of Uttar Pradesh (2011) 8 SCC 300 . It is a settled principle of law that the obligation to put material evidence to the accused under section 313 Code of Criminal Procedure, 1973 is upon the Court. One of the main objects of recording of a statement under this provision of the Code of Criminal Procedure is to give an opportunity to the accused to explain the circumstances appearing against him as well as to put forward his defence, if the accused so desires. But once he does not avail this opportunity, then consequences in law must follow. Where the accused takes benefit of this opportunity, then his statement made under section 313 Code of Criminal Procedure, 1973, in so far as it supports the case of the prosecution, can be used against him for rendering conviction. Even under the latter, he faces the consequences in law. 36. In the instant case, the respondents failed to furnish any explanation whatsoever in relation to the injuries caused to the complainant, when examined Under section 313 Code of Criminal Procedure, 1973. It was the duty of the respondents to furnish some explanation in their statement. Under section 313 Code of Criminal Procedure, 1973 as to under what circumstances the complainant suffered fire arm injuries on shoulder and buttock. Merely making a bald statement that they were innocent and falsely implicated in this case is not enough as the said allegation made by the respondents could not be established. 37. In his statement under Section 313 Cr.P.C., accused Kailash made mention of three gun shots stating that one fire was made by Ram Asrey. Thereafter Ram Chandra, his companion, took his pistol and fired on Ram Asrey and third fire was made by Sarangdhar which caused the death of Ram Chandra. However, this statement is contrary to the contents of his FIR of the cross case Exhibit Kha-1 where he made mention of only two gun shots, one made by Ram Asrey and another by his son Sarangdhar which allegedly resulted in death of Ram Chandra. Accused Kailash made an improvement in his statement under Section 313 Cr.P.C. which has not been explained. As against it, prosecution has proved that Ram Chandra had no weapon with him at the time of occurrence. 38. Accused Kailash made an improvement in his statement under Section 313 Cr.P.C. which has not been explained. As against it, prosecution has proved that Ram Chandra had no weapon with him at the time of occurrence. 38. In the FIR of cross case accused Kailash stated that Sarangdhar, the son of the complainant, was present on the spot who made a fire on Kailash but Ram Chandra was hit by his fire. There is no cogent evidence on record to prove this version of the accused. Per contra, the complainant Ram Asrey proved that bringing and brought up of his son Sarangdhar was done at his Nanihal since childhood who was permanently residing there. He was not the resident of his village and was not present on the spot. 39. There is no cogent evidence on record to prove this version of the accused. Per contra, the complainant Ram Asrey proved that bringing and brought up of his son Sarangdhar was done at his Nanihal since childhood who was permanently residing there. He was not the resident of his village and was not present on the spot. 39. It would be appropriate here to reproduce the FIR lodged by Kailash against the accused respondent Ram Asrey and Sarangdhar on dated 06.01.1978 and also the explanation given by Kailash during his statement recorded in the Section 313 Cr.P.C. to prove the aforesaid contradiction: **Jheku Fkkuk bUpktZ egksn; eYykoka gjnksbZ lsok esa fuosnu gS fd esjs xkao ds jke vkljs iq= fo'kEHkj n;ky viBuh; ls iqjkuh jaft'k ekurs gSA vkSj esjs ekjus dh fQdj esa dkQh le; ls jgrs gSA vkt lqcg jke pUnz iq= jkeHkjksls dqehZ eksgYyk xkso/kZuiqj Fkkuk eYykoka dk esjs ?kj ij igqapk vkSj eq>ls dgk lw[kk isM+ gks rks eq>s ydM+h dh t:jr gSA eSaus dgk gS py dj ns[k yks esjk isM+ vke dk lw[kk xkao ds if'pe dh rjQ Hkkx esa [kM+k gS dks fn[kk;k vkSj jkepUnj ls dgk ilUn gS rks pyks nke dh ckr phr ?kj ij d:axk ogka ls eSa vkxs esjs ihNs jkepUnj mlds ihNs jes'k pUnj xkao ds vius ?kj dks vk jgs Fks djhc ukS cts fnu jkevkljs ds ?kj ds lekus igaqps ns[kk fd jkevkljs iq= fo'kEHkj n;ky canwd fy;s o lkjax/kj iq= jkevkljs canwd fy;s cjksBs ls ge dks yydkjk dgk fd rqe gekjs dke esa cgqr vM+pu M+kyrs gks vkt rqEgs tku ls ekj Mkywaxk eSaus 'kksj epk;k esjs 'kksj ij xokgku [katu pekj o jkt cgknqj ukbZ o nqykjs HkqthZ vkfn xkao ds vk x;s eq> dks tku ls ekj M+kyus uh;r ls jke vkljs us canwd ls esjs mij Qk;j fd;k bl Qk;j ls cp x;k fQj lkjax/kj us viuh gkFkks es yh gqbZ canwd ls Qk;j esjs mij fd;k ;g Qk;j esjs u yxdj esjs ihNs vkrs gq;s jkepUnz ds yxkh nkfgus dks[k esaA jkepUnz Qk;j ds yxus ls ogha fxj dj xfy;kjs esa ej x;k gSA xokgku us eqfYteku dks M+kaVk rc og ?kj ds vUnj ?kql x;sA vkSj xokgku us ?kVuk ns[kh gSA fyf[kr fjiksVZ Hkst jgk gwaA fy[k dj dk;Zokgh dh tkosA eSa eqyfteku dh Mj dh otg ls ugha vk jgk gwaA izkFkhZ dSyk'k ujk;u f=ikBh iq= Jh ykyrk izlkn f=ikBh fuoklh xzke yPNhiqj Fkkuk eYykoka ftyk gjnksbZ rkjh[k 06-01-1978A 40. During his statement recorded under Section 313 Cr.P.C. Kailash stated as under:- iz'u&13 D;k vkidks dqN vkSj dguk gSA mRrj& jkepUnz ?kVuk ds fnu esjs ;gka lw[kh ydM+h [kjhnus vk;k FkkA eSa ydM+h fn[kkus mldks ckx ys x;k FkkA ml le; jke pUnz Hkh esjs lkFk FkkA tc rhuksa okil ?kj vk jgk Fkk eSa lcls vkxs Fkk esjs ihNs jke pUnz o mlds ihNs jes'k FksA tc jke vkljs ds njokts ls xqtjk rks jke vkljs tks vius njokts ij cUnwd fy;s [kM+s Fks esjs mij Qk;j fd;kA eSa Hkkx [kM+k gqvkA esjs ugha yxhA jke pUnz us dej ls dV~Vk fudkydj jke vkljs ij Qk;j fd;k rc lkjax/kj nkSM+dj xfy;kjs esa vk x;k vkSj jke pUnz ij Qk;j dj fn;k tks jke pUnz ds yxk tks maps ij Fkk] og ogha fxj dj xfy;kjs@jkLrs esa ej x;kA 41. More so, in statement under section 313 Code of Criminal Procedure, 1973 the respondent Dinesh has taken the stand that he was not present at the place of occurrence but he did not disclose that where he was present. In fact, this has not even been the suggestion of the defence while cross-examining the prosecution witnesses. It was for him to prove that he was not present at the place of occurrence and was entitled to plea of alibi. In our considered opinion, he has miserably failed to establish this fact. The version put forward by the accused in his statement under section 313 Code of Criminal Procedure, 1973 is unbelievable and unacceptable. There is no cogent evidence on record to support his plea. 42. The accused Ram Bilas, for the reasons best known to him, had taken up a stand of complete denial in his statement recorded under section 313 Code of Criminal Procedure, 1973 and opted not to explain his whereabouts at the relevant time. It is true that the statement under section 313 Code of Criminal Procedure, 1973 cannot be the sole basis for conviction of the accused but certainly it can be a relevant consideration for the courts to examine, particularly when the prosecution has otherwise been able to establish its case. It is clearly established from the evidence on record that the injured was sitting in a Barotha on the date of the occurrence when the respondents including Ram Chandra reached his chabutra and then Barotha and attacked the complainant. It is clearly established from the evidence on record that the injured was sitting in a Barotha on the date of the occurrence when the respondents including Ram Chandra reached his chabutra and then Barotha and attacked the complainant. The cross case was registered by accused Kailash for murder of Ram Chandra against Ram Asrey and his son Sarangdhar but they were acquitted of said charge and the judgment has become final. 43. Furthermore, it is not the case of the accused in FIR Exhibit Kha-1 that the injuries were caused to Ram Asrey, complainant by Ram Chandra. In fact, this has not even been the suggestion of the defence while cross examining the prosecution witnesses. These are certain definite circumstances clearly indicating towards the involvement of the respondents in the commission of the crime. The prosecution has been able to establish its case beyond reasonable doubt on the basis of the evidence on record. 44. The next circumstance relates to the motive which is another crucial point regarding commission of the said offence by the respondents. The contention raised by the counsel for the respondents was that there was no motive which could be attributed to the respondent for committing the said crime and in the absence of any motive, their alleged act of committing attempt of murder of Ram Ashrey should not be believed. It is argued that for motive reliance is placed on a case under Sections 107/116 Cr.P.C. against the accused persons Kailash, Dinesh, Ramesh. Other person Suresh, Ram Ashrey and Subhash also figured among the opposite parties in the case under Section 107/116 Cr.P.C. and as such it cannot be said that the accused persons were the only persons who could have a motive for committing the crime and moreover these proceedings ended in compromise. 45. This contention raised by the counsel for the respondent is also devoid of any force as motive on the part of the respondents is proved in view of the positive evidence on record. It is established from evidence on record that Proceedings under Section 107/117 of the Code of Criminal Procedure, 1973 had been drawn against Kailash, Dinesh and Ramesh and three others on complaint of Ram Ashrey. It is proved by Ext Ka 9 on record. It is established from evidence on record that Proceedings under Section 107/117 of the Code of Criminal Procedure, 1973 had been drawn against Kailash, Dinesh and Ramesh and three others on complaint of Ram Ashrey. It is proved by Ext Ka 9 on record. However, the respondent accused stated in their 313 statement that they were falsely implicated due to enmity without producing any material to support such allegation against complainant/witnesses. Thus the analysis of the sequence of events revealed that admittedly there was enmity between accused respondent and injured. 46. Even otherwise as per the settled legal position where positive evidence against the accused is clear, cogent and reliable, it becomes immaterial whether motive on the part of the accused has been proved by the prosecution or not. If that is the correct position, the absence of motive, in this Court's opinion, is of little or no consequence. Here, it would be worthwhile to reproduce the following paragraph from the recent judgment of the Apex Court in the case of Amitava Banerjee @ Amit @ Bappa Banerjee v. State of West Bengal, reported in AIR 2011 SC 2913 , as under: "Motive for the commission of an offence no doubt assumes greater importance in cases resting on circumstantial evidence than those in which direct evidence regarding commission of the offence is available. And yet failure to prove motive in cases resting on circumstantial evidence is not fatal by itself. All that the absence of motive for the commission of the offence results in is that the court shall have to be more careful and circumspect in scrutinizing the evidence to ensure that suspicion does not take the place of proof while finding the accused guilty." 47. In the facts of the present case, the positive evidence is sufficient enough to nail the accused. 48. Next, it is argued that the investigation was perfunctory, as the I.O. Ram Lal Verma PW4 did not collect the blood stained earth from the places of the occurrence nor did collect pellets, etc. In the facts of the present case, the positive evidence is sufficient enough to nail the accused. 48. Next, it is argued that the investigation was perfunctory, as the I.O. Ram Lal Verma PW4 did not collect the blood stained earth from the places of the occurrence nor did collect pellets, etc. Shashi Prabha stated that the blood out of the wounds of Ram chandra had fallen down in the barotha of her house and the I.O., but the trail of blood from the injuries of the deceased Ram Chandra had been shown by the I.O. in the site plan from the chabutara of the house of Ram Asrey to the point 'F' where he fell down and died. The trial court observed that the complainant shifted the place of the occurrence from his barotha as no such trail of blood shown by the I.O. at the barotha. 49. In any event, if some blood had fallen at the place of occurrence which the investigating officer failed to notice or if the trail of blood from the injuries of Ram Chandra had been shown by the I.O. in the site plan from the chabutara of the house in place of barotha, that by itself will not be fatal to the case of the prosecution. We must observe that the investigation in this case has been most unsatisfactory and the investigating officer was not conscious of his responsibilities. However, for this reason we will not reject the case of the prosecution entirely. It would not be right in acquitting an accused person solely on account of the defect; to do so would tantamount to playing into the hands of the investigating officer if the investigation is designedly defective. See Karnel Singh v. State of M.P. ( 1995 (5) SCC 518 . 50. In Paras Yadav and Ors. v. State of Bihar 1999 (2) SCC 126 it was held that if the lapse or omission is committed by the investigating agency or because of negligence there had been defective investigation the prosecution evidence is required to be examined de hors such omissions carefully to find out whether the said evidence is reliable or not and to what extent, such lapse affected the object of finding out the truth. The contaminated conduct of officials alone should not stand on the way of evaluating the evidence by the courts in finding out the truth, if the materials on record are otherwise credible and truthful; otherwise the designed mischief at the instance of biased or interested investigator would be perpetuated and justice would be denied to the complainant party, and in the process to the community at large. 51. It was observed by the Supreme Court in Ram Bihari Yadav v. State of Bihar and Ors. ( 1998 (4) SCC 517 ) that if primacy is given to such designed or negligent investigation, to the omission or lapses by perfunctory investigation or omissions, the faith and confidence of the people would be shaken not only in the Law enforcing agency but also in the administration of justice. 52. In the instant case, the lacuna in the investigation stands completely covered by the statements of witnesses. The evidence of the victim and witnesses clearly establishes the story of the prosecution. In view of the clear statement of the prosecution witnesses, we have no hesitation in rejecting the arguments of the respondents. 53. The question then is whether the Respondents were members of an unlawful assembly as alleged by the prosecution. In such cases what ought to be done by the court is to approach the depositions carefully and scrutinize the evidence more closely to avoid any miscarriage of justice. In order to attract Section 149, it must be shown that the incriminating act was done to accomplish the common object of unlawful assembly and it must be within the knowledge of other members as one likely to be committed in prosecution of the common object. If the members of the assembly knew or were aware of the likelihood of a particular offence being committed in prosecution of the common object, they would be liable for the same under Section 149 I.P.C. 54. Keeping the above in view, if we examine the evidence in this case, we find that all the accused were found to have acted in concert and attacked the complainant armed with deadly weapons and that they formed themselves into an unlawful assembly with the common object of causing fire-arm injuries to the complainant is found amply established and sufficiently proved by substantive and acceptable evidence. It is established from facts, evidence and circumstances of this case that the accused respondents were aggressors. They could not claim the right of Private Defence because there is sufficient evidence on record to prove that the complainant Ram Asrey was not armed with a gun when the accused respondents fired at him. It is not the case that either of the respondents suffered injuries during the incident. We see no basis for the contention of the respondent that they were not aggressors and reliance could not be placed on prosecution evidence. The attempt of murder, seems to be a calculated one and the manner in which it was got executed by all the accused acting in unison in a pre-planned manner to achieve their design, has been proved to answer the definition of attempt of murder, punishable under Section 307 of the I.P.C. read with Section 149, I.P.C. and offence under Section 148 I.P.C. 55. Last but not least, the legal principles regarding the powers of appellate Court while dealing with an appeal against an order of acquittal, have been reiterated by the Supreme Court in a catena of cases. It has been observed by the Apex Court that while considering the appeal against acquittal the appellate court can appreciate the evidence if the judgment is based on complete misconception as to the evidence on record, the same is perverse. The court below in this case has not examined the evidence and have not appreciated the same qua respondents in correct perspective. The Supreme Court culled down five general principles in Chandrappa and Ors. v. State of Karnataka (2007) 4 SCC 415 , as follows: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. (3) Various expressions, such as, 'substantial and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. (Emphasis supplied) 56. The Supreme Court referred to Kallu alias Masih and Ors. v. State of M.P. (2006) 10 SCC 313 , in the above-mentioned judgment, where it held that; While deciding an appeal against acquittal, the power of the Appellate Court is no less than the power exercised while hearing appeals against conviction. In both types of appeals the power exists to review the entire evidence. However, one significant difference is that an order of acquittal will not be interfered with, by an appellate court, where the judgment of the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because a different view is possible. The appellate Court will also bear in mind that there is a presumption of innocence in favour of the accused and the accused is entitled to get the benefit of any doubt. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court. 57. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. Further if it decides to interfere, it should assign reasons for differing with the decision of the trial Court. 57. The principle to be followed by appellate Court considering the appeal against the judgment of acquittal is to be interfered only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable and relevant and convincing materials have been unjustifiably eliminated in the process, it is a compelling reason for interference. These aspects were highlighted by Supreme Court in Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra 1973 Cri LJ 1783, Ramesh Babulal Doshi v. State of Gujarat 1996 (4) Supreme 167 , Jaswant Singh v. State of Haryana : 2000 Cri LJ 2212, Raj Kishore Jha v. State of Bihar and Ors. 2003 (7) Supreme 152 , State of Punjab v. Karnail Singh 2003Cri LJ 3892 and State of Punjab v. Pohla Singh and Anr. 2003Cri LJ 5010 and Suchand Pal v. Phani Pal and Anr. 2004 Cri LJ 628 . 58. For the reasons afore-recorded, we have no hesitation in holding that the prosecution has been able to prove its case beyond reasonable doubt. The accused are guilty of committing the offence under Section 148 and 307 r/w 149 IPC. We hold them guilty of committing these offences. 59. Thus, on a sum total of the evidence and the circumstances mentioned above and considering the reasons given by the trial court for acquitting the accused, we are of the opinion that the Sessions Judge has committed a serious error on a point of law while acquitting the accused A-1 to A-4 without applying his mind to the effect of the evidence on record. We see no reason to discard the evidence on record. We are, therefore, clearly of the opinion that the judgment of the trial court in this regard is extremely perverse. In our opinion, this is positively not a case in which another view is reasonably possible. 60. Unmerited acquittal should be guarded against because they strike at the root of the judicial edifice and shake the confidence of the people in the efficacy of justice delivery system. The following observations of the Supreme Court in the case of Shivaji Sahebrao Bobade And Anr. v. State Of Maharashtra, 1973 CriLJ 1783 need to be kept in mind by all Trial Courts while appreciating evidence in criminal trials. The following observations of the Supreme Court in the case of Shivaji Sahebrao Bobade And Anr. v. State Of Maharashtra, 1973 CriLJ 1783 need to be kept in mind by all Trial Courts while appreciating evidence in criminal trials. "Even at this stage we may remind ourselves of a necessary social perspective in criminal cases which suffers from insufficient forensic appreciation. The dangers of exaggerated devotion to the rule of benefit of doubt at the expense of social defence and to the soothing sentiment that all acquittals are always good regardless of justice to the victim and the community, demand especial emphasis in the contemporary context of escalating crime and escape. The judicial instrument has a public accountability. The cherished principles or golden thread of proof beyond reasonable doubt which runs tro: the web of our law should not be stretched morbidly to embrace every hunch, hesitancy and degree of doubt. The excessive solicitude reflected in the attitude that a thousand guilty men may go but one innocent martyr shall not suffer is a false dilemma....... Thus too frequent acquittals of the guilty may lead to a ferocious penal law, eventually eroding the judicial protection of the guiltless. For all these reasons it is true to say, with Viscount Simon, that "a miscarriage of justice may arise from the acquittal of the guilty no less than from the conviction of the innocent..." In short our jurisprudential enthusiasm for presumed innocence must be moderated by the pragmatic need to make criminal justice potent and realistic. A balance has to be struck between chasing chance possibilities as good enough to set the delinquent free and chopping the logic of preponderant probability to punish marginal innocents." 61. On threadbare scrutiny of the evidence, the participation of the accused respondents A-1 to A-4 is proved to the hilt. 62. In view of the aforesaid discussion, facts and circumstances of the case, we are of the considered view that the Trial Court clearly erred in acquitting the accused. Accordingly, we set aside the judgment and order of the Trial Court. 63. The appeal is hereby allowed. The accused/respondents A-1 to A-4 are convicted under Sections 148 and 307/149 I.P.C. 64. List on 11.05.2017 to give hearing to the convicts on the quantum of sentence.