SUPREME COURT OF INDIA

Before:- U.C. Banerjee and B.N. Agrawal, JJ.

Criminal Appeal No. 671 of 1994. D/d. 13.8.2002.

State of U.P. - Appellant

Versus

Nagdu @Bujharat - Respondent

Indian Penal Code, 1860, Sections 395 and 397 - Evidence Act, 1872, Sections 3 and 9 - Identity of accused - In FIR, showing that the dacoits had covered their faces with towels - During scuffle faces opened - Could be recognised - In cross examination PWs stating that face of none opened - Held, that as observed by the High Court after perusal of record and inconsistent and contradictory evidence tendered by the prosecution witnesses - No interference is called for in order of acquittal by High Court - Appeal dismissed.

[Para 4]

ORDER

The state is in appeal against the order of acquittal passed by the High Court in proceeding initiated against the accused persons under Sections 395 and 397 of the Indian Penal Code.

2. Admittedly, there is no dispute as regards the incident spoken of neither the damage caused. The only question that come for consideration before the Court was with regard to the identity of the accused persons. In the first information report, it has been mentioned that the docoits, had covered their faces with towels; that during the 'marpeet' in course of the commission of dacoity, the faces of the co-accused opened and they could be recognised. In cross-examination, however, the witnesses did turn round and categorically stated that mask of none of the dacoits got opened up, it is by reason of this inconsistent and contradictory piece of evidence as is available on record the High Court came to the conclusion that the prosecution has miserably failed in its effort to prove as is required in terms of the provisions of law and thus the appellant deserved to be acquitted and hence the High Court allowed the appeal and conviction and sentence of the appellant was set aside.

3. The state of Uttar Pradesh, however, not being satisfied therewith prefers this appeal upon the grant of leave.

4. It is now an accepted principle that the apex Court would not effect further scrutiny of the evidence as is available on record and unless it is shown clearly that there has been a failure of justice or miscarriage of justice. The learned advocate appearing in support of the appeal, however, in his fairness submitted that he is not in a position to make any submission to that effect. On a perusal of the record and diverse papers available on record, we do feel it expedient to record our concurrence with the observations of the High Court specially on the wake of the inconsistent and contradictory nature of the evidence tendered by the prosecution witnesses. In that view of the matter, his appeal fails and is dismissed.

The bailable warrants stand discharged.

Appeal dismissed.