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REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 53 OF 2009
1 Murugesan (A-5)
S/o Muthu
2 Paramasivam (A-2)
S/o Muthu
3 Lakshmanaperumal (A-3)
S/o Muthu
4 Solaiappan (A-4)
S/o Muniyandi
5 Thirumani (A-1)
S/o Solaiappan
6 Muthumuniyandi (A-7)
S/o Yamaraj
7 Kanthasamy (A-8)
S/o Muthukkaruppan
8 Lingam (A-9)
S/o Kannan
9 Govindan (A-10)
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S/o Perumal
10 Narayanan (A-12)
S/o Shanmugam
11 Murugan (A-13)
S/o Kannan
12 Ganesan (A-14)
S/o Muthu
13 Shanmugam (A-15)
S/o Solai Narayanan
14 Ramalingam (A-16)
S/o Muthu
15 Velmurugan (A-17)
S/o Soliappan
16 M.Marimuthu (A-18)
S/o Mookia
17 M.Marimuthu (A-19)
S/o Karuppasami ....Appellants
Versus
State through Inspector of Police .…Respondent
J U D G M E N T
RANJAN GOGOI, J.
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This appeal, under Section 379 of the Code of Criminal Procedure,
1973 is against the order of the High Court of Madras reversing the
acquittal of the appellants and convicting and sentencing each one of
them under different Sections of the Indian Penal Code (hereinafter
shall be referred to as ‘IPC’). All the accused persons have been
convicted under Section 120 B of the IPC and sentenced to undergo
rigorous imprisonment for a period of seven years each. The
accused appellants have also been found guilty under Section 302 of
IPC for their individual acts or constructively under Section 34/149
IPC for commission of the said offence. They have been accordingly
sentenced to undergo rigorous imprisonment for life. Some of the
appellants have also been found guilty of the offences under Section
148 and Section 332 read with Section 149 IPC for which sentence of
rigorous imprisonment of three years have been imposed. Aggrieved
the present appeal has been filed.
2. For the sake of clarity reference to the accused is hereinafter
being made in the chronological order arranged in the proceedings of
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the trial and the three deceased, i.e., Veeraperumal, Karumpuli and
Madaswamy are being referred to as D-1, D-2 and D-3 respectively.
The case of the prosecution, in short, is that there was a land dispute
between Karumpuli (D-2) and his family and A-1, Thirumani, and his
party. There were civil litigations between the parties over the said
property. According to the prosecution, on account of the aforesaid
dispute, the younger brother of the accused No.15 was murdered and
in the said case D-1, D-2 and D-3 were arrayed as accused. At the
relevant point of time, the three deceased persons were on bail.
There was another case pending against D-1 and D-2 in respect of an
incident of a bomb attack on the rival party. In connection with the
said case, the aforesaid two deceased who were arrested were
brought to the court of the Judicial Magistrate, Vilathikulam on the
day of the occurrence, i.e. 22.09.1991 for execution of the bail bonds
etc. so as to enable them to be released on bail. Thiru Bagavati (PW-
1), Alagar (PW-2), Periyasami (PW-3) and Kalimuthu (PW-4) along
with D-3 had come to meet D-1 and D-2 in the court complex. On
the same day, A-14, A-15, and A-16 who were also under arrest in
another case were brought by the police to the court complex for
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purpose of further remand. The other accused persons had come
to see A-14, A-15, and A-16. Both the groups, including the
deceased and the accused who were brought from jail, were engaged
in their respective conversations. According to the prosecution, at a
point of time between 2.00 p.m. and 3.00 p.m., A-14, A-15 and A-16
asked the other members of the accused party who had come to
meet them to finish off D-1 and D-2. On being so instigated,
according to the prosecution, the other members of the accused party
inflicted fatal injuries on D-1, D-2 and D-3. It is the further case of
the prosecution that D-1, on being inflicted injuries by the accused
persons, ran towards the Police Station, situated near the court
complex and made a statement (Ex. P-1) based on which the FIR (Ex.
22) was registered by PW-27. Thereafter, the FIR was sent to the
Court of Judicial Magistrate, Vilathikulam which was received at about
5.00. p.m. on the same day.
The injured D-1 was shifted to the Government Hospital and on
an intimation being sent by PW-20 Dr. Rajaram (Raj Mohan),
Assistant Civil Surgeon attached to Government Hospital, the learned
Judicial Magistrate (PW-6) came to the hospital to record the dying
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declaration of the injured, Veeraperumal. According to the
prosecution, while his statement was being recorded, D-1, slipped
into a coma and, thereafter, died at about 4.07 p.m. The dying
declaration (Exh P-4) was recorded in the presence of Paulsama,
Medical Officer (PW-21) who had certified that the injured (D-1) was
in a fit condition to make the statement. It is the further case of the
prosecution that the other injured namely, Karumpulli and Madasamy
were also brought to the hospital but had died on the way.
It is further alleged by the prosecution that D-1 and D-2 were
brought to the court complex from the jail premises by Police
Constables Sankaranarayanan (PW-5) and Shanmugaraj (PW-7).
Both the aforesaid police constables, according to the prosecution,
were eye-witnesses to the occurrence and they had submitted a
report to the Judicial Magistrate, Vilathikulam (Ex. P-2) in this regard.
The prosecution has further alleged that in the course of the attack by
A-1 Thirumani, A-5 had also sustained injuries for which A-5 had filed
a complaint and he was medically examined. The prosecution also
claims that at the instance of A-7, five aruvals were recovered.
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3. On the completion of the investigation, charge sheet was
submitted against all the accused under different Sections of the IPC.
The offences alleged being triable by the Court of Sessions, the case
was committed for trial to the Court of the learned Sessions Judge,
Tuticorin. The learned trial court framed charges against the present
appellants (17 in number) and six others under Sections 120 B, 147,
148, 332 and 302 read with Section 34/109/149 of the IPC. The
accused having pleaded not guilty were tried. In the trial held, 30
witnesses were examined by the prosecution who had also exhibited a
large number of documents besides as many as 20 material objects.
Three witnesses were examined on behalf of the defence and as
many as 10 documents were also exhibited. The learned trial Judge
by the judgment and order dated 16.04.1988 held that the charges
levelled against the accused persons have not been proved beyond all
reasonable doubt. Accordingly, all the 23 accused were acquitted.
On an appeal being filed by the State, the High Court by the
impugned judgment and order dated 04-09-2008/19-09-2008 had set
aside the acquittal of A-1 to A-19 and convicted them under
different Sections of the IPC. The acquittal ordered by the learned
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trial court in respect of A-20, A-21, A-22, and A-23 was, however,
maintained by the High Court. Of the 19 accused who have been
convicted by the High Court, A-6 and A-11 have died in the mean
time. Consequently, it is the 17 accused persons against whom the
order of conviction continues to be effective who have instituted the
present appeal.
4. A reading of the judgment dated 16.04.1998 passed by the
learned trial court indicates that the learned court did not consider it
prudent to act on the evidence of PW-1 inasmuch as it was found that
there are certain innovations in the evidence tendered by the said
witness who is also closely related to at least two of the deceased
persons. PW-2, PW-3 and PW-4 not having supported the prosecution
case and having been declared hostile, the learned trial court thought
it proper not to place any reliance whatsoever on the testimony of the
said witnesses. The evidence of PW-5 and PW-7, the Police
constables who had escorted D-1 and D-2 to the court complex from
the prison, was elaborately considered by the learned trial court
before coming to the conclusion that the evidence of the two
aforesaid witnesses did not inspire the confidence of the court. The
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detailed reasons which had persuaded the trial court to take the
above view will be noticed in the discussions that will follow.
5. Coming to Ex. P-1, (complaint lodged by D-1 in the police station
immediately after the incident) and the formal FIR lodged on that
basis (Ex. P-22) the learned trial court was of the opinion that the
said documents do not accurately reflect the situation as claimed to
have taken place in view of the fact that FIR under Section 302 IPC
was registered at 3.15 pm when the victims of the alleged assault
were still alive.
6. In so far as Ex. P-2, i.e., the report lodged by PWs-5 and 7
before the Judicial Magistrate is concerned, the learned trial court was
of the view that the involvement of any of the accused have not been
mentioned in the said report which renders the same open to grave
suspicion and doubt, besides affecting the oral testimony of PW-5 and
PW-7 tendered in court later i.e. after five years wherein the names
of the alleged attackers, i.e., the accused have been mentioned with
complete certainty and precise accuracy. The dying declaration (Ex.
P-4) of D-1 was also considered unsafe to be relied upon in view of
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the fact that the names of only three of the accused have been
recorded in the dying declaration in contrast to the names of 11
accused that finds mention in Ex. P-1 and that charge sheet was
eventually filed against 23 accused persons.
7. The learned trial court also considered the evidence of DW-1,
DW-2, and DW-3 to hold that the said evidence proved and
established the presence of A-4 in the office of the Sub-Registrar and
A-12 in ITI, Thoothukudi rather than at the place of the occurrence at
the time of the incident. The learned trial court, on the said finding,
held the prosecution case to be false to the extent disproved by the
defence evidence. It is on the aforesaid broad basis that the learned
trial court thought it fit to come to the conclusion that in the present
case the involvement of any of the accused has not been proved
beyond reasonable doubt. Consequently, the learned court thought
it proper to acquit all the accused persons from all such charges that
had been levelled against them by the prosecution.
8. Specifically in so far as the charge of criminal conspiracy under
Section 120 B IPC is concerned, the learned trial court took into
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account the evidence of A-15, A-16 and A-17, all of whom denied
what the prosecution had alleged, namely, that on the day previous
to the incident i.e. 21.09.1991, there was a meeting in the village
where all the accused persons (except A-14, A-15 and A-16) had
planned and conspired to murder D-1 and D-2 on the next day when
they were to be brought to Court. In this regard, the learned trial
court also took into account the statement made by the learned Public
Prosecutor virtually admitting that, on the evidence adduced, no case
of criminal conspiracy have been made out against any of the
accused. In so far as A-20 to A-23 are concerned the learned trial
court specifically came to the conclusion that no evidence whatsoever
had been adduced by the prosecution to show the presence of any of
the aforesaid accused persons at the time and place of occurrence.
9. The very elaborate judgment of the learned trial court has been
considered in an equally elaborate and exhaustive discourse by the
High Court in the appeal filed by the State of Tamil Nadu. In so far as
the charge under Section 120B is concerned, the High Court was of
the view that the materials on record had established that all the
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accused persons (except A-14, A-15 and A-16) had come to the court
complex armed with dangerous weapons which was indiscriminately
used on the victims merely at the call of A-14 to A-16. The said
evidence, according to the High Court, conclusively proved the
commission of the offence under Section 120 B of the IPC. The High
Court was of the view that such a conclusion is the inevitable result of
the process of inference by which proof of commission of the offence
of criminal conspiracy was required to be reached in the present case.
10. In so far as the other offences are concerned, the High Court,
after noticing the evidence adduced by the prosecution witnesses and
the several documents brought on record, took the view that PW-2,
PW-3 and PW-4, though were declared hostile, had supported the
prosecution, at least to the extent that the three deceased persons
and all the convicted accused were present in the court complex on
the date and at the time when the occurrence is alleged to have
taken place. Reliance to the aforesaid extent on the evidence
tendered by the hostile witnesses, according to the High Court, is
permissible in law and therefore the aforesaid part of the evidence
could not be discarded in toto. The High Court, for the reasons set out
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in the impugned judgment, came to the conclusion that the evidence
tendered by PW-5 and PW-7 is trustworthy and reliable. While the
detailed reasons in this regard will be noticed in the subsequent
paragraphs of this order along with the reasons set out by the learned
trial court for taking the opposite view, once the aforesaid conclusion
i.e. that PW-5 and PW-7 are reliable and trustworthy was reached by
the High Court, the prosecution case had assumed an entirely
different complexion. Proceeding further, the High Court also
considered the evidentiary worth of the documents exhibited by the
prosecution as Ex.P-1, Ex.P-2 and Ex.P-4 and held the said
documents to be aiding the prosecution case. The doubts expressed
by the learned trial court with regard to the said documents were
answered by the High Court to be of no consequence for reasons that
we will shortly notice and consider.
11. Coming to the defence evidence, the High Court was of the
view that the evidence tendered by DW-1, DW-2, DW-3 did not
conclusively prove the plea of alibi advanced on behalf of A-4 and A-
12, inasmuch as such evidence did not establish the presence of the
aforesaid two accused at the places claimed by them. However, in so
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far as A-20 to A-23 are concerned the High Court agreed with the
findings of the learned trial court. Accordingly, while maintaining the
acquittal of the aforesaid accused persons, i.e. A-20 to A-23, the High
Court was of the view that the acquittal of all the other accused
should be reversed and they are liable to be convicted for different
offences, details of which have already been noticed. Thereafter,
upon hearing each of the accused persons, the sentences in question,
as already noted, were awarded.
12. We have heard Shri V. Kanagaraj, learned senior counsel for the
appellants and Shri Guru Krishna Kumar, AAG for the State. We have
given our anxious consideration to the submissions made on behalf of
the rival parties and we have carefully considered the oral and
documentary evidence adduced by the parties in the course of the
trial.
13. Before proceeding any further it will be useful to recall the broad
principles of law governing the power of the High Court under Section
378 Cr.PC, while hearing an appeal against an order of acquittal
passed by a trial Judge.
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14. An early but exhaustive consideration of the law in this regard is
to be found in the decision of Sheo Swarup v. King Emperor
1
wherein it was held that the power of the High Court extends to a
review of the entire evidence on the basis of which the order of
acquittal had been passed by the trial court and thereafter to reach
the necessary conclusion as to whether order of acquittal is required
to be maintained or not. In the opinion of the Privy Council no
limitation on the exercise of power of the High Court in this regard
has been imposed by the Code though certain principles are required
to be kept in mind by the High Court while exercising jurisdiction in an
appeal against an order of acquittal. The following two passages from
the report in Sheo Swarup (supra) adequately sum up the
situation:
“There is in their opinion no foundation for the view, apparently
supported by the judgments of some Courts in India, that the High
Court has no power or jurisdiction to reverse an order of acquittal on
a matter of fact, except in cases in which the lower Court has
"obstinately blundered," or has "through incompetence, stupidity or
perversity" reached such "distorted conclusions as to produce a
positive miscarriage of justice," or has in some other way so
conducted itself as to produce a glaring miscarriage of justice, or has
been tricked by the defence so as to produce a similar result.
1
AIR 1934 PC 227 (2)
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Sections 417, 418 and 423 of the Code give to the High Court full
power to review at large the evidence upon which the order of
acquittal was founded, and to reach the conclusion that upon that
evidence the order of acquittal should be reversed. No limitation
should, 'be placed, upon that power, unless, it be found expressly
stated in the Code. But in exercising the power conferred by the Code
and before reaching its conclusions upon fact, the High Court should
and will always give proper weight and consideration to such matters
as (1) the views of the trial Judge as to the credibility of the
witnesses; (2) the presumption of innocence in favour of the accused,
a presumption certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate Court in disturbing a
finding of fact arrived at by a Judge who had the advantage of seeing
the witnesses. To state this however is only to say that the High Court
in its conduct of the appeal should and will act in accordance with
rules and principles well known and recognized in the administration
of justice.
(page 229 of the report)”
15. The principles of law laid down by the Privy Council in Sheo
Swarup (supra) has been consistently followed by this Court in a
series of subsequent pronouncements of which reference may be
illustratively made to the following:
Tulsiram Kanu v. State
2
, Balbir Singh v. State of Punjab
3
, M.G.
Agarwal v. State of Maharashtra
4
, Khedu Mohton v. State of Bihar
5
,
2
AIR 1954 SC 1
3
AIR 1957 SC 216
4
AIR 1963 SC 200
5
(1970) 2 SCC 450
16Page 17
Sambasivan v. State of Kerala
6
, Bhagwan Singh v. State of M.P.
7
and
State of Goa v. Sanjay Thakran
8
.
16. A concise statement of the law on the issue that had emerged
after over half a century of evolution since Sheo Swarup (supra) is
to be found in para 42 of the report in Chandrappa & Ors. v. State
of Karnataka
9
. The same may, therefore, be usefully noticed below:
“42. From the above decisions, in our considered view, the following
general principles regarding powers of the appellate court while
dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, re-appreciate 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. 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
6
(1998) 5 SCC 412
7
(2002) 4 SCC 85
8
(2007) 3 SCC 755
9
2007 (4) SCC 415
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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 is ours)
17. Another significant aspect of the law in this regard which has to
be noticed is that an appeal to this Court against an order of the High
Court affirming or reversing the order of conviction recorded by the
trial court is contingent on grant of leave by this Court under Article
136 of the Constitution. However, if an order of acquittal passed by
the trial court is to be altered by the High Court to an order of
conviction and the accused is to be sentenced to death or to undergo
life imprisonment or imprisonment for more than 10 years, leave to
appeal to this Court has been dispensed with and Section 379 of the
Code of Criminal Procedure, 1973, provides a statutory right of appeal
to the accused in such a case. The aforesaid distinction, therefore,
has to be kept in mind and due notice must be had of the legislative
intent to confer a special status to an appeal before this court against
an order of the High Court altering the acquittal made by the trial
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court. The issue had been dealt with by this Court in State of
Rajasthan v. Abdul Mannan
10
in the following terms, though in a
different context :
“12. As is evident from the above recorded findings, the judgment of
conviction was converted to a judgment of acquittal by the High
Court. Thus, the first and foremost question that we need to consider
is, in what circumstances this Court should interfere with the
judgment of acquittal. Against an order of acquittal, an appeal by the
State is maintainable to this Court only with the leave of the Court.
On the contrary, if the judgment of acquittal passed by the trial court
is set aside by the High Court, and the accused is sentenced to death,
or life imprisonment or imprisonment for more than 10 years, then
the right of appeal of the accused is treated as an absolute right
subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the
Constitution of India and Section 379 of the Code of Criminal
Procedure, 1973. In light of this, it is obvious that an appeal against
acquittal is considered on slightly different parameters compared to
an ordinary appeal preferred to this Court.”
18. Having dealt with the principles of law that ought to be kept in
mind while considering an appeal against an order of acquittal passed
by the trial court, we may now proceed to examine the reasons
recorded by the trial court for acquitting the accused in the present
case and those that prevailed with the High Court in reversing the
said conclusion and in convicting and sentencing the accused
appellants.
10
2011 (8) SCC 65
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19. Insofar as the charge of criminal conspiracy under Section 120B
IPC is concerned, there is no doubt and dispute that to prove the said
charge the prosecution had examined PWs 15,16 and 17 who did not
support the prosecution case in any manner at all. In fact, each of the
aforesaid three witnesses categorically denied that they had made
any statement before the Investigating Officer with regard to any
agreement amongst the accused on 21.09.1991 to commit the
murder of D-1 and D-2 on the next day when they were to be
brought to the court. In fact it was noted by the learned trial court
that the public prosecutor has virtually conceded that the evidence on
record did not establish the charge of criminal conspiracy against any
of the accused. The learned trial Judge, therefore, acquitted all the
accused of the said charge. The view taken by the learned trial Judge
was definitely a possible view. As against the same, the High Court
came to the conclusion that, notwithstanding the evidence of PWs
15,16 and 17, the charge of criminal conspiracy has been established
as the prosecution had succeeded in proving that the accused
persons (except A-14, A-15 and A-16) had come to the place of
occurrence armed with dangerous weapons and at the mere call of
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the said accused, they had attacked D-1, D-2 and D-3 with the
weapons that they had brought. In this regard, the High Court relied
on the fact that it is an established proposition of law that direct
evidence of criminal conspiracy would rarely be forthcoming and a
conclusion in this regard has to be, largely, inferential.
20. On a careful consideration of this aspect of the case, we find
ourselves unable to agree with the conclusion of the High Court.
Firstly, if the conclusion recorded by the learned trial court was a
possible conclusion, the High Court ought not to have ventured
further in the matter. Secondly, the aforesaid exercise, in our
considered view, did not also occasion a correct conclusion inasmuch
as the presence of the accused at the spot armed with weapons and
responding to the call of A-14, A-15 and A-16 to attack the deceased,
even if assumed, in the absence of any further evidence, cannot
establish a prior arrangement/agreement or a meeting of minds
amongst the accused to commit the offence of murder so as to
sustain a charge of criminal conspiracy under Section 120B IPC.
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21. Before going into the main issue in the case, namely, the
culpability of any or all the accused under Section 302 IPC either on
the basis of constructive liability under Section 34/149 IPC or on the
basis of the individual acts of the accused, an incidental aspect of the
case with regard to the plea of alibi set up by A-4 and A-12 can be
conveniently dealt with at this stage. The plea of alibi set up on behalf
of the aforesaid two accused on the basis of the evidence of DWs - 1,
2 and 3 was accepted by the learned trial court by holding that the
defence evidence tendered in the case had established that at the
time of the occurrence A-12 was in the ITI, Tuticorin whereas A-4 was
in the office of the Sub-Registrar, Tuticorin. Reading the evidence of
DWs - 1, 2 and 3 and the documents exhibited in this regard (Ex. D-
4, D-5, D-8, D-9, D-10) it is possible to take a view that aforesaid two
accused were not present at the place of occurrence at the relevant
time. The High Court answered the aforesaid issue by stating that as
it was admitted by DW-1 in cross-examination that a student could
leave the college after being marked present in the attendance
register and as the sale deed (Ex.D-5) claimed to have been executed
by A-4 in Tuticorin at the time of the incident did not specify the time
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of execution, the plea of alibi set up by A-4 and A-12 was not
satisfactorily proved.
The exercise undertaken by the High Court, once again, overlooks the
basic principle of law that this Court has repeatedly emphasized in the
matter of exercise of jurisdiction while hearing an appeal against an
order of acquittal passed by the trial court. We are, therefore, unable
to accord our approval to the manner in which the High Court had
dealt with this aspect of the case.
22. This would now require us to consider the main issue in the case,
namely, the liability of the accused appellants under the provisions of
IPC other than those dealt with in the discussions that have preceded.
The trial court considered it prudent to view the testimony of PW-1
with great care and circumspection as the said witness is the
younger brother of one of the deceased. The learned trial court also
took into account the fact that PW-1, though examined as an eye
witness, could not specifically say as to which accused had assaulted
which particular deceased and the weapon(s) used. That apart, the
learned trial court took into account the fact that PW-1 had sought to
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implicate the acquitted A-20 to A-23 who, admittedly, were not
present at the place of occurrence as stated by the investigating
officer of the case examined as PW-30.
The learned trial court while considering the evidence of PW-2, PW-3,
and PW-4, took into account the fact that all the said witnesses are
closely related to the deceased and that they were declared hostile by
the prosecution. Specifically, it was noticed by the learned trial court
that PW-2 had stated that immediately after incident had occurred he
had run away from the place and had mingled with the crowd. PW-2
had further stated that he had not seen who had hacked whom. PW-
3, it was noticed by the learned trial, had stated that he had returned
to the place of the incident after taking lunch and, therefore, he did
not see the occurrence. On the other hand, PW-4 had stated that the
assault was committed by a group of men and had not named any
particular accused. In such circumstances the learned trial court
came to the conclusion that the conviction of any of the accused
under Section 302 IPC either for their individual acts or on the
principle of constructive liability under Section 34/149 IPC would not
be warranted on the basis of the evidence of PWs 1 to 4.
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23. The learned trial court, thereafter, proceeded to examine the
evidence of PW-5 and PW-7, the police constables who had escorted
D-1 and D-2 to the court complex. On such consideration, the
learned trial court came to the finding that the evidence of PW-5
regarding pelting of stones on him and PW-7 by some of the accused
was unacceptable as no resultant injuries are recorded in the wound
certificates (Ex. P-15 and P-16). In this regard, the learned trial court
also noticed that the injuries mentioned in the aforesaid wound
certificates were caused by aruval and knife and ,further, that neither
PW-5 nor PW-7 had informed the doctor about any injuries being
caused by pelting of stones. The apparently false involvement of A-
20 to A-23 in the incident made by PWs - 5 and 7; the wrong
identification of several of the accused made in court by PW-5 and
PW-7; the absence of any test identification parade are the other
circumstances that was taken note of by the learned trial court to
arrive at the conclusion that the evidence of PW-5 and PW-7 is not
reliable. The injuries on PW-5 claimed to have been caused by an
aruval was also found by the learned trial court not to be free from
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doubt or ambiguity. This is because, according to PW-5, he had tried
to prevent the blow dealt with the aruval by A-17, which fell on the
‘rifle but’ carried by him and had also injured him on the left hand.
The rifle carried by PW-5, however, was not exhibited in the trial.
Moreover, according to the prosecution, D-1 was examined at about
3.25 p.m and PW-5 and PW-7 were examined between 4.05 and 4.15
p.m. PW-5 in his deposition had, however, stated that he along with
PW-7 was treated around 5.45 – 6.00 p.m. and at that time D-1 was
also in the hospital undergoing treatment. All these facts were duly
taken note of along with the oral and documentary evidence adduced
by the prosecution to show that D-1 had died at 4.07 PM.
24. Apart from the above inconsistencies which were considered by
the learned trial court to be grave and severe, the fact that the FIR
registered at 3.15 p.m. was so registered, inter alia, under Section
302 IPC though, admittedly, the deceased persons were alive at that
time was also taken note of by the learned trial court as being a
significant aspect of the case which required an explanation from the
prosecution which was not forthcoming. The discrepancies between
Ex. P-1 wherein 11 accused were named and Ex. P-2 where none of
26Page 27
the accused were named and the contents of Ex. P-4 where only
three accused were named were duly taken note of by the learned
trial court apart from the fact that in Ex. P-2 it had been stated that
4-5 persons from outside had come and committed the assault. The
prosecution had alleged that A-5 had received cut injuries on his
forehand and 4 of his fingers had been severed due to an aruval blow
aimed by A-1 on D-1 which fell on A-5. The fact that the FIR filed
with regard to injuries caused to A-5 by A-1 had ended in a closure
report had also been considered by the leaned trial court. The nonexamination of any disinterested witnesses though several such
persons had witnessed the incident is an additional circumstance that
was relied upon by the learned trial court to come to the conclusion
that the accused appellants should be exonerated of the charges
levelled against them.
25. In the above facts can it be said that the view taken by the trial
court is not a possible view? If the answer is in the affirmative, the
jurisdiction of the High Court to interfere with the acquittal of the
accused appellants, on the principles of law referred to earlier, ought
27Page 28
not to have been exercised. In other words, the reversal the
acquittal could have been made by the High Court only if the
conclusions recorded by the learned trial court did not reflect a
possible view. It must be emphasized that the inhibition to interfere
must be perceived only in a situation where the view taken by the
trial court is not a possible view. The use of the expression “possible
view” is conscious and not without good reasons. The said expression
is in contradistinction to expressions such as “erroneous view” or
“wrong view” which, at first blush, may seem to convey a similar
meaning though a fine and subtle difference would be clearly
discernible.
26. The expressions “erroneous”, “wrong” and “possible” are defined
in the Oxford English dictionary in the following terms:
“erroneous : wrong;incorrect.
wrong : 1. not correct or true, mistaken
2. unjust,dishonest or immoral
possible : 1. capable of existing, happening, or
being achieved.
2. that may exist or happen, but that is
not certain or probable.”
28Page 29
27. It will be necessary for us to emphasize that a possible view
denotes an opinion which can exist or be formed irrespective of the
correctness or otherwise of such an opinion. A view taken by a court
lower in the hierarchical structure may be termed as erroneous or
wrong by a superior court upon a mere disagreement. But such a
conclusion of the higher court would not take the view rendered by
the subordinate court outside the arena of a possible view. The
correctness or otherwise of any conclusion reached by a court has to
be tested on the basis of what the superior judicial authority
perceives to be the correct conclusion. A possible view, on the other
hand, denotes a conclusion which can reasonably be arrived at
regardless of the fact where it is agreed upon or not by the higher
court. The fundamental distinction between the two situations have
to be kept in mind. So long as the view taken by the trial court can
be reasonably formed, regardless of whether the High Court agrees
with the same or not, the view taken by the trial court cannot be
interdicted and that of the High Court supplanted over and above the
view of the trial court.
29Page 30
28. A consideration on the basis on which the learned trial court had
founded its order of acquittal in the present case clearly reflects a
possible view. There may, however, be disagreement on the
correctness of the same. But that is not the test. So long as the view
taken is not impossible to be arrived at and reasons therefor,
relatable to the evidence and materials on record, are disclosed any
further scrutiny in exercise of the power under Section 378 Cr.P.C.
was not called for.
29. However, as the High Court had embarked upon an in-depth
consideration of the entire evidence on record and had arrived at
conclusions contrary to those of the trial court, the discussions now
will have to centre around the basis disclosed by the order of the High
Court for reversing the acquittal of the accused appellants. The
grounds that had prevailed upon the High Court to hold that the
commission of the offence of criminal conspiracy under Section 120 B
IPC have been proved by the prosecution in the present case have
already been noticed. Our reasons for disagreeing with the said view
of the High Court have also been indicated hereinabove. Similarly,
the reasons for our disagreement with the conclusion of the High
30Page 31
Court that the defence evidence adduced in the case did not
satisfactorily establish the plea of alibi put forward by A-4 and A-12
have also been indicated. The aforesaid aspects of the case,
therefore, would not need any further dilation and it is the reasons for
the conviction of the accused appellants under Section 302 and the
other provisions of the IPC will be required to be noticed by us.
30. The High Court has concluded that the evidence of PW-1, PW-2,
PW-3 and PW-4 have supported the prosecution case to a certain
extent and the said fact could not have been ignored only because
PW-2, PW-3 and PW-4 were declared hostile. Even if the aforesaid
reasoning of the High Court is to be accepted what would logically
follow therefrom is that the evidence of PW-1, PW-2, PW-3 and PW-4,
at best, shows the presence of the convicted accused and the
deceased at the place of occurrence on the day of the incident. In so
far as the evidence of PW-5 and PW-7 is concerned, the High Court
was of the view that the failure to mention the names of any of the
convicted accused in Ex. P-2 can be explained by the fact that PW-5
and PW-7 must have been in a state of shock and, furthermore, Ex.
P-2 was a report to the Magistrate, not of the incident as such, but a
31Page 32
report of what had happened to the prisoners who were brought by
PW-5 and PW-7 from the jail for production in the court. The errors
on the part of PW-5 and PW-7 in identifying some of the accused in
Court have been understood by the High Court to be on account of
the long lapse of time between the incident and date of their
examination in Court (5 years). The absence of any Test
Identification Parade, according to the High Court, did not materially
affect the prosecution case, as PW-5 and PW-7 had stated in their
evidence that the accused used to frequently come to police station in
connection with other cases in which they were involved.
31. We find it difficult to agree with the view taken by the High Court
on the above aspects of the case. Not mentioning the name of any
of the accused in the report submitted to the court i.e. Ex. P-2,
particularly, when according to PW-5 and PW-7, the accused persons
were known to them is a vital lacuna which cannot be explained by
confining the scope of the said report as has been done by the High
Court. At the same time, the narration of the names of several of the
accused in the examination of PW-5 and PW-7 in court, in our view,
would cease to be a mere discrepancy with reference to the earlier
32Page 33
version of the witnesses as mentioned in Ex. P-2. The same would
amount to an improvement or an exaggeration on the part of the
prime witnesses of the prosecution thereby casting a serious doubt on
their reliability. PW-5 and PW-7 are supposed to be members of a
disciplined force. The lacuna in Ex. P-2 (absence of any names)
cannot be reasonably understood to be on account of any shock
suffered by the witnesses due to the incident. The failure on the part
of PW-5 and PW-7 to use the fire arms issued to them despite an
assault committed by as many as 23 persons resulting to the death of
three, as the prosecution has alleged, is both mysterious and
inexplicable. So is the registration of the FIR under Section 302 IPC
at 3.15 p.m. when the deceased persons were still alive. The efficacy
of the dying declaration (Ex. P-4) when the maker thereof had
slipped into a coma even before completing the statement would have
a serious effect on the capacity of D-1 to make such a statement. The
certification made by PW-21 with regard to the condition of the
deceased is definitely not the last word. Though ordinarily and in the
normal course such an opinion should be accepted and acted upon by
the court, in cases, where the circumstances so demand such
33Page 34
opinions must be carefully balanced with all other surrounding facts
and circumstances. All the above, in our view, demonstrates the
fragile nature of the conclusions reached by the High Court in the
present case.
32. For the above reasons, we hold that conviction of the accused
appellants recorded by the High Court under the different provisions
of the IPC and the sentences imposed cannot be sustained. We
accordingly allow this appeal, set aside the judgment and order dated
4.9.2008 & 19.09.2008 passed by the High Court of Madras and
confirm the order of acquittal dated 16.04.1998 passed by the
learned trial court. The accused appellants, if in custody, be released
forthwith unless required in any other case.
...…………………………J.
[P. SATHASIVAM]
.........……………………J.
[RANJAN GOGOI]
New Delhi,
October 12, 2012.
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