Shibu S/o Varghese @ Joy v. State of Kerala; Sreekumar @ Sreekutttan v. State of Kerala; State of Kerala v. (CRL.A Nos. 2388/2006, 2356/2009 & 597/2010)

## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 CRL.A NO. 2388 OF 2006`** ``` AGAINST THE JUDGMENT DATED 06.12.2006 IN SC NO.798 OF 2005 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ARISING OUT OF THE ORDER/JUDGMENT IN CP NO.15 OF 2005 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE , ERNAKULAM APPELLANT/ACCUSED NO.1: ``` ``` SHIBU, S/O. VARGHESE @JOY, MANALIL VEETTIL, KONTHURUTHY KARA, ELAMKULAM VILLAGE. BY ADV SRI.S.NIRMAL KUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA ``` ``` REP. BY C.I. OF POLICE, ERNAKULAM TOWN SOUTH POLICE STATION,, ERNAKULAM (CRIME 24/2004), REP. BY PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. ``` ``` BY ADV PUBLIC PROSECUTOR ``` ## **`SHEEBA THOMAS. -GP`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, ALONG WITH CRL.A.597/2010, 2356/2009, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 2 ``` ## **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 CRL.A NO. 597 OF 2010`** ``` AGAINST THE JUDGMENT DATED 18.03.2010 IN SC NO.354 OF 2008 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM ARISING OUT OF THE ORDER/JUDGMENT IN CP NO.25 OF 2008 OF ADDITIONAL CHIEF JUDICIAL MAGISTRATE , ERNAKULAM APPELLANT/ACCUSED: ``` ``` SREEKUMAR @ SREEKUTTAN AGED 27 YEARS S/O.MANI, CHAKKALAKKAL HOUSE, THEVARA,, MATTUMMAL, ERNAKULAM. BY ADV S.NIRMAL KUMAR ``` ## **`RESPONDENT/COMPLAINANT:`** ``` STATE OF KERALA PUBLIC PROSECUTOR, HIGH COURT OF KERALA,, ERNAKULAM. REPRESENTING THE CIRCLE INSPECTOR,, ERNAKULAM TOWN SOUTH POLICE STATION. ``` ## **`SHEEBA THOMAS. -GP`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, ALONG WITH CRL.A.2388/2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 3 ``` # **`IN THE HIGH COURT OF KERALA AT ERNAKULAM PRESENT`** ``` THE HONOURABLE MR.JUSTICE P.G. AJITHKUMAR MONDAY, THE 18[TH] DAY OF MARCH 2024 / 28TH PHALGUNA, 1945 CRL.A NO. 2356 OF 2009 ``` ``` AGAINST THE JUDGMENT DATED 16.12.2006 IN SC NO.798 OF 2005 OF II ADDITIONAL DISTRICT COURT,ERNAKULAM APPELLANT/APPELLANT/COMPLAINANT: ``` ``` STATE OF KERALA REPRESENTED BY THE PUBLIC PROSECUTOR, HIGH COURT OF KERALA. ``` ``` ADVS.SEENA C. -GP ``` ## **`RESPONDENTS/RESPONDENTS/ACCUSED 2 TO 9:`** - **`1 JOBY, S/O. VINCENT, VENATTU VEETTIL, NEAR KASEEBA THEATRE, KONTHURUTHY KARA, ELAMKULAM VILLAGE.`** - **`2 KANNAN, S/O.DWARA MULLETHU VEETTIL, KONTHURUTHY KARA,, ELAMKULAM VILLAGE.`** - **`3 MURUKESH, S/O.DHARANEENDRAN KARIMPPETHARA VEETTIL, PANAMPILLY NAGAR, DESOM, ELAMKULAM VILLAGE.`** - **`4 SUMESH, S/O.SASI PANACHICKATHARA VEETTIL,, KONTHURUTHY KARA, ELAMKULAM VILLAGE.`** - **`5 MANEESH MANU, S/O.KUNJANBAVA SOORYA NAGAR BHAGOM, KONTHURUTHY KARA,, ELAMKULAM VILLAGE, (MURIKUMTHARA VEETTIL, THEKKAN, MALIPURAM KARA, VYPPIN, ELAMKUNNAPUZHA VILLAGE.`** - **`6 (SREEKUMAR @ SREEKUTTAN S/O.MANI) * CHAKALACKAL VEETTIL, THEVARA MATTUMMEL,, ELAMKULAM VILLAGE (ABSCONDING). * R6 DELETED FROM CAUSE TITILE AS PER ORDER DATED 09/02/2015.`** - **`7 VIJAYABABU, S/O.RAGHU BHARANIPARAMBIL VEETTIL, THEVARA KONTHURUTHY, ELAMKULAM VILLAGE.`** - **`8 PRAVEEN RAJ, S/O.KRISHNANKUTTY PUTHALATH VEETTIL, PERUMANOOR KARA, ELAMKULAM VILLAGE. BY ADVS. C.P.PEETHAMBARAN PHILIP T.VARGHESE K.V.SABU SUJA MATHEW THOMAS T.VARGHESE`** ``` THIS CRIMINAL APPEAL HAVING COME UP FOR ADMISSION ON 18.03.2024, ALONG WITH CRL.A.2388/2006 AND CONNECTED CASES, THE COURT ON THE SAME DAY DELIVERED THE FOLLOWING: ``` ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 4 ``` ## P.G. AJITHKUMAR, J. ------------------------------------------------ Crl. Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 --------------------------------------------------Dated this the 18[th] day of March, 2024 ## JUDGMENT Crime No.24 of 2004 was registered in Ernakulam TownSouth Police Station on the basis of statement of Sri.Anilkumar, who was examined as PW2. The allegations were that he along with Shiju and Shibu, who were examined as PWs 1 and 3 were attacked by the 1[st] accused Shibu along with group of other persons at about 11:00 p.m., on 25.01.2004 on the Thevara Konthuruthy Road, near an Ankanvadi. All the three persons sustained injuries and had undergone treatment. They were allegedly attacked and inflicted injuries using swords. The motive alleged was that PW1 Shiju had an altercation with the 1[st] accused Shibu in relation to a previous incident and in order to wreak vengeance on that the 1[st] accused along with his companions who are arraigned as accused Nos.2 to 9 attacked PW1 and in that course PWs 2 and 3. After due investigation, a ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 5 ``` final report was filed based on which the matter was committed by the Additional Chief Judicial Magistrate, Ernakulam. 2. SC No.798 of 2005 was instituted based on the order of committal mentioned above. There were nine accused. Accused No.7 did not appear before the court and therefore, trial of accused Nos.1 to 6, 8 and 9 alone took place in SC No.798 of 2005. On their denying the charge framed against them, the prosecution has examined PWs 1 to 16 and proved Exts.P1 to P13. MOs 1 to 4(c) had been identified. On the close of the prosecution evidence, those accused were questioned under Section 313(1)(b) of the Code of Criminal Procedure, 1973. They denied the incriminating circumstances appeared against them in evidence. They maintained that they were innocent and PWs 1 to 3 were attacked by some others. Exts.D1 to D3 were marked on their side. After considering the evidence on record, the trial court found the 1[st] accused alone guilty of offences punishable under Sections 143, 148, 324, 326 and 307 r/w 149 and also 120B and 109 of the Indian Penal Code, 1860. Accused Nos.2 to 6, 8 and 9 were acquitted. The 1[st] accused was convicted and sentenced to undergo rigorous imprisonment for a period of seven years each for the offences ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 6 ``` under Section 326 and 307 of the Indian Penal Code and for lesser terms for the other offences. Aggrieved by the said judgment of conviction and order sentence, the 1[st] accused preferred Crl.Appl.No.2388 of 2006 under Section 374(2) of the Code. 3. Case against accused No.7 was subsequently committed by the Additional Chief Judicial Magistrate, Ernakulam, and his case was proceeded before the Second Additional Sessions Judge, Ernakulam as SC No.354 of 2005. On his denying the charge, the prosecution examined PWs 1 to 13 and proved Exts.P1 to P13. MOs 1 to 4 were identified. Accused No.7 was questioned under Section 313(1)(b) of the Code and he denied incriminating circumstances appeared against him in evidence. No defence evidence was adduced. The trial court convicted him for the offences under Section 143, 148, 324, 326, 307 and 120(b) of the Indian Penal Code. He was sentenced to undergo rigorous imprisonment for a period of five years each under Section 326 and 307 of the Indian Penal Code. He was sentenced to lesser terms for the other offences as well. 4. Aggrieved by the said judgment of conviction and ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 7 ``` order of sentence, accused No.7 preferred Crl.Appeal No.597 of 2010 under Section 374(2) of the Indian Penal Code. The State preferred Crl. Appeal No.2356 of 2009 aggrieved by the order of acquittal of accused Nos.2 to 6, 8 and 9, invoking the provisions under Section 378 of the Code. 5. Heard the learned counsel for the appellants in Crl. Appeal Nos.2388 of 2006 and 597 of 2010, the learned Public Prosecutor and also the learned counsel for respondent Nos.7 and 8 in Crl. Appeal No.2356 of 2009. There was no representation for respondent Nos.1 to 5 in Crl. Appeal No.2356 of 2009. 6. The 1[st] accused is the appellant in Crl. Appeal No.2388 of 2006 and 7[th] accused is the appellant in Crl. Appeal No.597 of 2010. For convenience, the accused, witnesses, documents and material objects are referred to hereafter as in SC No.798 of 2009. 7. PW1 Shiju sustained serious injuries in the incident. F.I. Statement was given by PW2. PW3 also is an injured. While they were returning home after the festival in St. John’s Church, Konthuruthy, the incident had occurred. PW6 Vinod was also with them. They reached near the Ankanvadi in ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 8 ``` Konthuruthy-Thevara Road. It was on 25.01.2004. At about 11:00 p.m., they reached that place. Going by the versions of PWs 1, 2 and 3 a group of persons came from a pocket road possessed with weapons such as swords and attacked them. 8. PW1 deposed that his brother and brother-in-law assaulted the 1[st] accused and his brother some time back. PW1 had an altercation in that regard with the 1[st] accused. Owing to that enmity, the 1[st] accused along with other assailants came and attacked him as well as the persons with him. It is his version that the 1[st] accused uttering to kill him attacked PW1 using a sword. The 1[st] accused brandished the sword which first fell on his head, 2[nd] at his left knee and 3[rd] at his right shoulder, all inflicted him injuries. He added that accused Nos.2 to 9 also had attacked him using swords. He named each of the said accused with their overt acts. He further stated that when PWs 2 and 3 intervened, they also were attacked by the accused using weapons. He, however, could not say overt acts of each of the accused concerning the attack they perpetrated on PWs 2 and 3. 9. PW2 deposed regarding the occurrence almost in tandem to the version of PW1. He testified that he along ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 9 ``` with PWs 1 and 3 were on their way back home after the church festival. A group of persons under the leadership of the 1[st] accused came from a pocket road and attacked them. He asserted that the 1[st] accused slashed using a sword on PW1's head, leg and hand. When he intervened, he was attacked by the 2[nd] accused using a sword. He sustained an injury on his buttock. The further version of PW2 is that all the other accused also attacked PW1 using swords. PW3 was also attacked by the assailants. Although PW6 Sri.Vinod ran away fearing attack, he returned when the assailants left the scene. 10. PW2 further stated that he along with PW3 was taken to the hospital in an autorickshaw by his brother and Sri.Vinod. While undergoing treatment in the hospital, he gave Ext.P1 statement based on which the crime was registered on the very same night. 11. PW3 also deposed about the incident. His version is that while they were reached near the Ankanady, a group of persons approached them and attacked. His assertions are that PW1, PW2 and himself were attacked by the assailants. But he could not identify any of the assailants. He explained that he was not able to identify any of the assailants, because of his ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 10 ``` night blindness. 12. PWs 5 and 6 are the occurrence witnesses. But both of them turned hostile in the prosecution. They did not state before the court that they saw the incident. PW5 stated that he knew that PWs 1 to 3 were attacked by a group of persons and inflicted injuries. He came from his house and saw PWs 2 and 3 with injuries. He availed an autorickshaw to take them to the hospital. He testified that as per the version of PWs 2 and 3 a group of persons who came wearing masks attacked them. PW6 also did not state about the incident except that he knew about sustenance of injuries by PWs 1 to 3. The statements of PWs 5 and 6 are thus not available to prove the incident or the identity of the culprits. 13. The fact that PWs 1 to 3 sustained injuries in the incident in question is not in dispute. The accused did not contest that fact. The prosecution examined PWs 10, 11 and 12 and proved Exts.P8, P9, P10 and P11 which are the wound certificates and discharge certificate issued for the examination of the said witnesses. From the said evidence, medical examination of PWs 1 to 3 and details of the injuries sustained by them are proved. ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 11 ``` The injuries sustained by PW1 were very grave. The trial court after considering the said evidence in detail found that PWs 1, 2 and 3 sustained injuries as they were attacked by the assailants and the incident occurred at about 11.00 p.m. on 25.01.2004. I do not find any reason to interfere with the said finding. 14. The contention of the learned counsel for the accused Nos.1 and 7 is that the prosecution did not succeed in establishing the identity of those accused. When the trial court found that the evidence tendered by the prosecution through PWs 1 and 2 was insufficient to establish the identity of accused Nos.2 to 6, 7 and 8, in the view of the learned counsel for the said appellants, their evidence could not be acted upon to convict accused Nos.1 and 7. The findings of the trial court in that regard is urged to be totally incorrect. 15. It is further submitted by the learned counsel for appellants No.1 and 7 that when in S.C. No.798/2005 the version of PW2, Anilkumar, was that he was attacked using a sword by the 2[nd] accused, his version in S.C. No.354/2008 was that he was attacked using a sword by the 7[th] accused. The said contradiction alone is enough, according to the learned counsel, to set aside the findings of the trial court that the accused No.7 ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 12 ``` was also involved in the incident. Further, it is submitted that such a contradictory evidence of PW2 rendered him totally unreliable. The further submission in that regard is that PW2 even during his examination in S.C. No.798/2005 did not state overt acts of any of the accused other than the 1[st] and 2[nd] accused, and therefore, placing reliance on his evidence is totally unsane. Yet another reason pointed out by the learned counsel to discredit the veracity of PWs 1 and 2 is that they were convicted in criminal cases. 16. The learned counsel for accused Nos.1 and 7 further submitted that the evidence is lacking about availability of light at the place of occurrence. While none of the accused except the 1[st] accused was named in the FI statement and in the absence of any test identification parade, the evidence of PWs 1 and 2 identifying all the accused before the court for first time is totally unsafe to be relied on. 17. The learned Public Prosecutor has taken me through the oral testimonies of material witnesses. It is submitted that the evidence of PW1 does not contain any inconsistency as to the material particulars of the case. It is pointed out that the assailants are not strangers to PW1. It was as a sequel to an ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 13 ``` altercation between himself and the 1[st] accused, the incident had occurred. When parties were so acquainted with each other, identification of the accused by PW1 before the court need not be doubted. It is further submitted that the lack of mentioning names of the assailants other than the 1[st] accused in Ext.P1, F.I. statement would not affect the veracity of the PW1. Since PW1 was undergoing treatment on account of the serious injuries he had sustained, on recording statement from PW2 the crime was registered. Soon after the incident and when undergoing treatment, PW2 would not have been in a position to mention names of each of the assailants. Since the 1[st] accused was the leader of the group his name alone was mentioned. In such circumstances, identification of the accused by PW1 cannot be doubted. Accordingly, the learned Public Prosecutor would submit that the conviction of the accused Nos.1 and 7 is liable to be confirmed and further accused Nos.2 to 6 are liable to be convicted. 18. As stated, the evidence of PW3 is not available to prove identity of the assailants. He admitted that he could not identify any of the assailants for want of eyesight. PWs 5 and 6 did not support the prosecution insofar as the identity of the ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 14 ``` assailants is concerned. PW5 further stated that PWs 2 and 3 told him that a group of persons wearing face masks attacked PWs 1 to 3. Although this statement was harped on by the learned counsel for accused Nos.1 and 7 and urged to disbelieve PWs 1 and 2, I am unable to agree with him. During cross examination PW2 stated that he did not state so to PW5, who is his brother. Hence the assertion by PW5, who is a hostile witness, that the assailants were wearing masks cannot be given any credence. 19. The evidence of PW2 however is not trustworthy insofar as identification of the accused other than the 1[st] accused is concerned. PW2 stated in court that he was attacked by the 2[nd] accused while deposing in S.C. No.798/2005. His version in S.C. No.354/2008 was that it was the 7[th] accused who attacked him. It is not in dispute that the only act of attack on PW2 was inflicting a cut injury at his buttock using a sword. It is true that the version of PW2 in the first trial was not confronted during his examination in the 2[nd] trial. Therefore, his first version may not be used to discredit him as provided under Section 155(3) of the Evidence Act. However, when he deposed at two stages of the same case, the discrepantly with respect to ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 15 ``` the same act that discredits him. Therefore, the said fact cannot be ignored while appreciating his evidence. That apart, he did not state the overt acts of any of the assailants other than the 1[st] accused. Viewed so his oral testimony cannot be used to implicate accused Nos.2 to 9 with the offence So, the evidence left to establish the identity of the assailants other than the 1[st] accused is that of PW1 alone. 20. The trial court did not believe PW1 inasmuch as his identification of accused Nos.2 to 6, 8 and 9 is concerned. True, during chief examination PW1 deposed about the overt acts of each accused. But in the cross examination he has contradicted his earlier statement in the material particulars. The overt act of the 2[nd] accused was stated in court whereas, no such statement was given by him before the police. Similarly, his specific assertion initially was that Shibu (1[st] accused) along with seven others have attacked him and his companions. He changed that version subsequently, and stated that seven assailants including the 1[st] accused attacked. When there are such serious contradictions in his evidence, it requires independent corroboration for acting upon his evidence to implicate accused Nos.2 to 9. The prosecution could not adduce ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 16 ``` any independent evidence which can be placed reliance on concerning the involvement of accused Nos.2 to 9. 21. However, version of PW1 regarding the involvement of the 1st accused is consistent from the very beginning. His version in that respect was sufficiently supported by the oral testimony of PW2. When he gave Ext.P1 FI statement itself, he stated that the 1[st] accused led the assailants. When the name of the 1[st] accused was mentioned in the FI statement itself his involvement in the crime cannot be doubted, especially when he was a person known to PW2 even before. Therefore the assertion of PWs 1 and 2 that the 1[st] accused in the company of a group of seven or more persons attacked them as well as PW3 is devoid of any infirmity. 22. The contention of the learned counsel for accused Nos.1 and 7 in the above context is that evidence of PWs 1 and 2 cannot be believed in part while the other part is disbelieved. The Apex Court in Raju v. State, by Inspector of Police, [AIR 2009 SC 2171] held that courts in India do not accept the maximum “Falsus in Uno, Falsus in Omnibus” (false in one, false in all). In Ugar Ahir v. State of Bihar [AIR 1965 SC 277] the Apex Court observed that the maximum is neither a sound ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 17 ``` rule of law nor a rule of practice. It may be difficult to come across a witness whose evidence does not contain a grain of untruth or at any rate, exaggeration, embroidery or embellishment. It is the duty of the court to scrutinize the evidence carefully and separate the grain from the chaff. In Jagdip Singh v. State of Haryana [AIR 1974 SC 1978] the Apex Court held that the court can reject a part of evidence of a witness and accept the remaining part which is found reliable. 23. So, there is no bar in placing reliance on the evidence of PW1 insofar as his identification of the 1[st] accused as one of the assailants and also his overt acts. His evidence gets sufficient corroboration from the oral testimony of PW2 and other attending circumstances including the FI statement, Ext.P1. Accordingly, I hold that conviction of the 1[st] accused is based on sound and sufficient evidence. There is no reason to interfere with the conviction of the 1[st] accused whereas, conviction of the 7[th] accused is unsustainable in law and is liable to be set aside. 24. Coming to the appeal filed by the State, the learned Public Prosecutor urges that acquittal of accused Nos.2 to 6 is incorrect and liable to be set aside. I found above that the ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 18 ``` evidence tendered by the prosecution through PWs 1 and 2 is insufficient to establish the identity of accused Nos.2 to 9. In an appeal against acquittal, unless the appellant is able to establish that the findings of the trial court are so perverse there cannot be an interference. 25. The Apex Court in Chandrappa and others v. State of Karnataka [(2007) 4 SCC 415] enunciated the following general principles regarding powers of the Appellate Court while dealing with an appeal against an order of acquittal; “(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 ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 19 ``` of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasize 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 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.” 26. In Shyam Babu v. State of U.P. [(2012) 8 SCC 651] the Apex Court held that it would not be possible for the appellate Court to interfere with the order of acquittal passed ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 20 ``` by the trial Court without rendering a specific finding, namely, that the decision of the trial Court is perverse or unreasonable resulting in miscarriage of justice. At the same time, it cannot be denied that the appellate Court, while entertaining an appeal against the judgment of acquittal by the trial Court, is entitled to re-appreciate the evidence and come to an independent conclusion. While doing so, the appellate Court should consider every material on record and the reasons given by the trial Court in support of its order of acquittal and should interfere only on being satisfied that the view taken by the trial Court is perverse and unreasonable resulting in miscarriage of justice. It was further held that if two views are possible on a set of evidence, then the Appellate Court need not substitute its own view in preference to the view of the trial Court which has recorded an order of acquittal. 27. What the Apex Court laid down in Ravi Sharma v. State (Government of NCT of Delhi) and another [(2022) 8 SCC 536] and Central Bureau of Investigation v. Shyam Bihari and others [(2023) 8 SCC 197] is also the same. It was held that in an appeal against acquittal, the power of the appellate court to reappreciate evidence and come to its own conclusion is not ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 21 ``` circumscribed by any limitation. But it is equally settled that the appellate court must not interfere with an order of acquittal merely because a contrary view is permissible, particularly, where the view taken by the trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant e vidence on record. 28. Viewed in the light of the law laid down in the aforesaid decisions, the conclusion is irresistible that the acquittal of accused Nos.2 to 6, 8 and 9 is not liable to be interfered with. 29. The sentence imposed on the accused No.1 is as follows: “A1 is sentenced to undergo R.I. for three months under Section 143 of the Indian Penal Code of forming an unlawful assembly. R.I. for two years each for the offence under Section 148 and Section 324 of the Indian Penal Code, R.I. for 7 years each for offence under Section 326 and 307 of the Indian Penal Code and a fine of Rs.5,000/- each. In default of payment of fine, the accused shall undergo rigorous imprisonment for one year each. The sentence of imprisonment shall run concurrently.” ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 22 ``` 30. The learned counsel for the 1[st] accused submitted that the sentence imposed on the 1[st] accused is exorbitant. Owing to the previous enmity, the 1[st] accused in association with a group of persons attacked PW1 inflicting him serious injuries. In that course, they had also attacked PWs 2 and 3 for no reason. The offence, the 1[st] accused had committed is grave in nature. In consideration of the grave nature of the injuries, the sentence of imprisonment for a period of 7 years for the offences under Section 326 and 307 of the IPC cannot be said to be exorbitant. However, having the incident occurred in the year 2004, and the said accused had undergone the ordeal of the trial and the appeal for such a long period, I am of the view that rigorous imprisonment for a period of 5 years each for the offence under Sections 307 and 326 of the IPC will be commensurate. 31. Accordingly, conviction of the accused No.1 is confirmed. Conviction of the accused No.7 is set aside. Acquittal of accused Nos.2 to 6, 8 and 9 is confirmed. 32. The sentence imposed on accused No.1 is modified to the extent of reducing the substantive sentence imposed for the offence under Section 326 and 307 to rigorous ``` Crl.Appeal Nos.2388 of 2006, 2356 of 2009 & 597 of 2010 ``` ``` 23 ``` imprisonment for a period of 5 years each. Criminal Appeal No.2388 of 2006 is thus allowed in part. Criminal Appeal No.597 of 2010 is allowed. Criminal Appeal No.2356 of 2009 is dismissed. Accused No.1 shall surrender before the trial court for execution of the sentence within one month from today. Sd/- P.G.AJITHKUMAR JUDGE SMF