Whether the High Court was right in setting aside the acquittal of the Appellants and convicting them for an offence of murder. While holding that there is no limitation placed on the power to review the evidence in an appeal against acquittal,?
Apex court held that The reasons given by the trial court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses [ panchanama prepared at police station but not at death spot], improbability of identification of the accused [ laterin light behind the mob - non seizer of Torch light deposed by witness] , non- examination of independent witnesses, previous enmity between the accused and the witnesses, nonproduction of important prosecution witnesses and improper investigation of the case.-By differing with the view taken by the trial court on the above points, the High Court found
that the judgment of the trial court is perverse and that there is only one view possible which leads to the guilt of the accused. -The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings
recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted. The High Court ignored the fact that the presumption of innocence in favour of the
Appellants is further strengthened by an order of acquittal. No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court. For the aforementioned reasons, the Appeals are allowed. The judgment of the High Court is set aside and the judgment of the trial court is restored.
1
Non Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos . 407- 408 of2009
Mohd. Akhtar @ Kari & Ors. .... Appellants
Versus
State of Bihar & Anr. …. Respondents
J U D G M E N T
L. NAGESWARA RAO, J.
1. In these Appeals, we are concerned with the
correctness of the judgment of the High Court of
Judicature at Patna by which the judgment of the trial
court was set aside and the acquittal of the Appellants
was reversed. The High Court convicted the Appellants
under Section 302 read with Sections 34 and 148 of the
Indian Penal Code, 1860 (“the IPC”) and sentenced them
to undergo life imprisonment.
2. We are informed that the Appellant Nos. 1, 2 and 4
died during the pendency of these Appeals and so, the
2
Appeals filed by them abate. On the statement of the
informant Md. Abu Daud (PW-6), the fardbeyan was
recorded by the Officer Incharge of Matihani Police
Station at 9.00 p.m. on 05.01.1984. He stated that
along with his brother Md. Nadir Sah @ Jumma
(deceased), he had gone to the house of Md. Mobin
(PW-4) for collecting irrigation dues. They were basking
by the ghura (fire place) at Md. Mobin’s darwaza. A
mob of 10-11 persons armed with pistols, rifles and gun
came there at that time. The informant identified seven
out of eleven persons. Md. Chamru @ Sahadat was
armed with gun, Noor Alam with rifle, Md. Jam Alam
(Appellant No.4) with gun and Md. Kari @ Akhtar
(Appellant No.1), Md. Samad and Md. Sanjat
(Appellant No.3) also had fire arms. Immediately after
the mob reached, the accused Md. Chamru@ Sahadat
warned that nobody should try to escape and then Md.
Sanjat (Appellant No.3) fired one shot which did not hit
anybody. The informant, Md. Nadir Sah @ Jumma
(deceased) and Md. Mobin (PW-4) started running
and all the accused chased them. The informant hid
3
himself by the side of a Simal tree from where he saw
his brother Md. Nadir Sah @ Jumma (deceased) being
surrounded by the accused near the southern wall of the
house of one Samshul. After being
surrounded, the deceased Md. Nadir Sah @Jumma was
shot dead by Md. Chamru @ Sahadat, Md. Jan Alam and
Noor Alam. The accused fled towards the village and
soon after the informant and Md. Mobin rushed to where
the deceased was lying and found that he was hit by the
bullets. They started shouting for help. Md. Adil, Md.
Ataul Rehman and several others came. They were
informed about the incident by the informant.
3. On completion of the investigation, a charge sheet
was filed under Sections 148 and 302 read with Section
149 IPC against seven persons out of whom one of the
accused Md. Samad died and Md. Chamru @ Sahadat
and Noor Alam absconded. The remaining accused
i.e. the Appellants- herein faced trial for the charges
framed under Sections 148 and 302 read with Section
149 IPC. According to PW-9 Bishram Das, who was the
investigating officer, the information was received at
4
7.45 p.m. on 05.01.1984 that 2-3 shots were hurled
and one person killed in Saidpur village. After recording
S.D. Entry No.65, he proceeded to the Saidpur village
along with other policemen. After reaching
the place of the incident, he recorded the
statement of Md. Abu Daud and prepared an inquest
report. He also seized the blood soaked soil, ash of
ghura and a lantern.
4. Post-mortem examination of deceased Jumma was
conducted by PW-5 at 8.00 a.m. on 06.01.1984 who
found the following injuries on the person of the
deceased Md. Nadir Sah @ Jumma :
“(i) Deep wound with irregular burnt margin,
size x 2” x 2” over the right cheek with
surrounding areas with black stained with
comminuted fracture on the right side
mandible and maxilla and there was
laceration of the surrounding tissues of the
tongue. Multiple pillets and cork were
recovered which were preserved and sealed.
(ii) Penetrating wound ½” diameter with
burnt and inverted margin over the right
coastal cartilage middle of the right nipple
caused fracture of the cartilage. On further
deep dissection the right lunge was found
penetrated. There was also blood in the left
side of chest cavity. There was also
penetration of lower lobe of the left lung.
There was hole in the heart. There was
fracture of the ninth rib. There was wound on
5
the back size 1” in diameter with inverted
margine.”
5. Hemorrhage due to the above injuries was the
cause of death according to PW-5 and the death had
occurred 24 hours prior to the post-mortem
examination. Out of the 11 witnesses who were
examined by the Prosecution, PWs-3,4 and 6 were the
eye witnesses. PW-3 deposed that he heard the sound
of firing near the house of Samshul when he was
returning from Ghasarpur Tola and saw seven accused
who were chasing the deceased Md. Nadir Sah @
Jumma, Md. Abu Daud (PW-6) and Md. Mobin (PW-4).
Accused- Md. Jam Alam, Md. Sahadat and Noor Alam had
fired at the deceased near the house of Samshul. He
stated that he identified the accused by flashing his
torch light. According to him, the police arrived at the
place of the incident at 9.00 p.m. He testified that he
did not tell anybody about the incident till the police
reached there. PW-4 stated in his evidence that he
arranged a ghura (fireplace) with leaves at 6.00 p.m. on
05.01.1984. Md. Abu Daud (PW-6) and Md. Nadir Sah @
Jumma (deceased) who came to demand the remaining
6
irrigation dues from him also sat near the ghura. At that
time a mob of 11 persons suddenly came there. He
could identify seven out of eleven persons in mob in the
light of ghura and of lantern which was hanging in the
oriyani (veranda). He further deposed that he, the
deceased, and PW-6 started running away from the
mob. The deceased was surrounded by the accused
near the southern wall of Samshul’s house. He was shot
dead by the accused Sahadat, Md. Jam Alam and Noor
Alam. He stated that Md. Jam Alam and Sahadat had
guns, Noor Alam had a rifle and rest of the accused had
lathis. PW-6 who is the informant deposed that there
was sufficient light cast because of the ghura (fire
place), the lantern and the torch which he was carrying.
He witnessed the incident from behind the Simal tree
which was 15 yards from the place of occurrence.
6. The oral testimonies of PWs- 3,4 and 6 were
examined thoroughly and the trial court was of the
opinion that it is not safe to rely on their statements.
The trial court held that the evidence relating to
identification of the accused in the available light was
7
not convincing. There is reference to the evidence
regarding the lantern in the varanda which was behind
the place where the mob was standing and the
improbability of their being identified in the light
emitted by the lantern. The evidence of PW-6 that he
flashed a torch light for identifying the accused persons
was disbelieved as no torch was seized by the police.
For the aforesaid reasons, the trial court was of the
opinion that the eye witnesses could not have identified
the accused. Previous enmity between the accused on
one hand and the informant’s family on the other
was proved. The trial court further found that there was
a delay in lodging the FIR which provided an opportunity
to the informant and other PWs to implicate their
enemies. Thus, false implication could not be ruled out.
Further, the fardbeyan was recorded in the village at
9.00 p.m. on 05.01.1984. A dead body challan which
was prepared by J.N. Singh, Sub-Inspector of Police
(S.I.) which shows that the body was sent for postmortem
at 11.00 p.m. There was also an entry in the
station diary that J.N. Singh (S.I.) returned to the police
8
station at 9.00 p.m. If the fardbeyan was prepared at
9.00 p.m. at the place of incident which is six kilometers
away from the police station, J.N. Singh (S.I.) could not
have arrived at the police station at 9.00 p.m. The
record shows that he prepared the inquest report at
10.00 p.m. and the dead body challan at 11.00 p.m. at
the place of occurrence. J.N. Singh (S.I.) who is an
important witness was not examined by the prosecution.
Referring to the above circumstances, the trial court
held that it was clear that the inquest report and the
dead body challan were prepared later at the police
station. An adverse inference was drawn against the
Prosecution. The trial court also took note of the
presence of the Mangal Tanti, the Chowkidar of the
village, who reached the place of the incident in 30
minutes after the incident took place. He was not
examined as a witness. None of the witnesses deposed
that they informed the Chowkidar about the incident.
No independent witness was examined though the
village was hardly 200 metres from the place of the
incident. No pellet or traces of bullets were recovered
9
from the place of the incident. On the basis of the
above findings along with other contradictions in the
evidence of the witnesses, the trial court acquitted the
Appellants of all the charges against them.
7. The Appeals filed by the State and the revision filed
by the complainant, were taken altogether. The High
Court appreciated the evidence and found fault with the
judgment of the trial court. The High Court felt that
apart from minor inconsistencies, the evidence of the
eye witnesses was reliable and there was sufficient light
to identify the accused. The accused shared a
common intention of killing the deceased according to
the High Court. The delay in registering the FIR was
found to be not fatal to the case of the Prosecution. The
evidence of interested witnesses was also held reliable
by the High Court. The minor errors in
recording the time in the police station and the
non-examination of J.N. Singh (S.I.) did not prejudice the
prosecution’s case. By differing with the view taken by
the trial court on the above points, the High Court found
that the judgment of the trial court is perverse and that
10
there is only one view possible which leads to the guilt
of the accused. On the aforesaid findings, the High
Court convicted the Appellants under Section 302 read
with Sections 34 and 148 IPC and sentenced them to life
imprisonment.
8. The question that falls for determination in this
case is whether the High Court was right in setting aside
the acquittal of the Appellants and convicting them for
an offence of murder. While holding that there is no
limitation placed on the power to review the evidence in
an appeal against acquittal, Lord Russell in Sheo
Swarup v. King-Emperor
1
held:
“9. .. .. 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
1 (1934) 36 BOM LR 1185 ¶9
11
Judge who had the advantage of seeing the
witnesses.”
9. The approach of the High Court in an appeal
against acquittals was explained by this Court in
Surajpal Singh & Ors. v. The State
2
as follows:
“It is well-established that in an appeal
under section 417 of the Criminal Procedure
Code, the High Court has full power to review
the evidence upon which the order of
acquittal was founded, but it is equally wellsettled
that the presumption of innocence of
the accused is further reinforced by his
acquittal by the trial court, and the findings
of the trial court which had the advantage of
seeing the witnesses and hearing their
evidence can be reversed only for very
substantial and compelling reasons.”
10. This Court in Muralidhar @ Gidda & Anr. v.
State of Karnataka
3
referred to several earlier
judgments dealing with appeals against acquittals
and observed that the appellate court must bear in mind
the following :
“12. .. ..
(i) There is presumption of innocence in
favour of an accused person and such
2 (1952) 3 SCR 193
3 (2014) 5 SCC 730 ¶ 12 (i-iv)
12
presumption is strengthened by the order of
acquittal passed in his favour by the trial
court;
(ii) The accused person is entitled to the
benefit of reasonable doubt when it deals
with the merit of the appeal against
acquittal;
(iii) Though, the powers of the appellate
court in considering the appeals against
acquittal are as extensive as its powers in
appeals against convictions but the appellate
court is generally loath in disturbing the
finding of fact recorded by the trial court. It is
so because the trial court had an advantage
of seeing the demeanour of the witnesses. If
the trial court takes a reasonable view of the
facts of the case, interference by the
appellate court with the judgment of
acquittal is not justified. Unless, the
conclusions reached by the trial court are
palpably wrong or based on erroneous view
of the law or if such conclusions are allowed
to stand, they are likely to result in grave
injustice, the reluctance on the part of the
appellate court in interfering with such
conclusions is fully justified; and
13
(iv) Merely because the appellate court on
reappreciation and re-evaluation of the
evidence is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
court is a possible view. The evenly balanced
views of the evidence must not result in the
interference by the appellate court in the
judgment of the trial court.”
11. It is relevant to refer to another judgment of this
Court in Ghurey Lal v. State of Uttar Pradesh
4
in
which the principles to be followed by the appellate
courts to overrule or otherwise disturb the trial court’s
acquittal were crystallised as under:
“70. …
1. The appellate court may only overrule or otherwise
disturb the trial court's acquittal if it has “very
substantial and compelling reasons” for doing so.
A number of instances arise in which the appellate
court would have “very substantial and compelling
reasons” to discard the trial court's decision. “Very
substantial and compelling reasons” exist when:
(i) The trial court's conclusion with regard to the facts
is palpably wrong;
4 (2008) 10 SCC 450
14
(ii) The trial court's decision was based on an
erroneous view of law;
(iii) The trial court's judgment is likely to result in
“grave miscarriage of justice”;
(iv) The entire approach of the trial court in dealing
with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust
and unreasonable;
(vi) The trial court has ignored the evidence or
misread the material evidence or has ignored
material documents like dying declarations/report of
the ballistic expert, etc.
(vii) This list is intended to be illustrative, not
exhaustive.
2. The appellate court must always give proper
weight and consideration to the findings of the trial
court.
3. If two reasonable views can be reached—one that
leads to acquittal, the other to conviction—the High
Courts/appellate courts must rule in favour of the
accused.”
12. Interference with the judgment of the trial court in
this case by the High Court is on a re-appreciation of
evidence which is undoubtedly permissible. Though the
High Court was aware of the well-settled principles of
law in matters relating to appeals against acquittals, it
15
failed to apply the same in their proper perspective.
Interference with an order of acquittal is not permissible
on the ground that a different view is possible. If the
acquittal is justified on a probable view taken by the trial
court, it should not be interfered with. The reasons
given by the trial court for acquittal mainly pertain to
the delay in lodging the FIR, untrustworthy eye
witnesses, improbability of identification of the accused,
non- examination of independent witnesses, previous
enmity between the accused and the witnesses, nonproduction
of important prosecution witnesses and
improper investigation of the case. On a thorough
examination of the entire evidence on record and the
judgment of the trial court, we are of the considered
view that the judgment of acquittal by the trial court is
justified which ought not to have been interfered with by
the High Court. The High Court could not have reversed
a judgment of acquittal merely because another view is
possible. The High Court brushed aside the findings
recorded by the trial court relating to certain omissions
as being minor and held the omissions should not have
16
been the basis on which the Appellants have been
acquitted. The High Court ignored the fact that the
presumption of innocence in favour of the
Appellants is further strengthened by an order of
acquittal. No perversity in the judgment of the trial
court in acquitting the Appellants has been
demonstrated by the High Court for interfering with the
judgment of the trial court.
13. For the aforementioned reasons, the Appeals are
allowed. The judgment of the High Court is set aside
and the judgment of the trial court is restored. The
Appellant No.3 was released on bail on 30.01.2017. His
bail bonds are discharged.
...................................J.
[ L. NAGESWARA RAO ]
..................................J.
[ R. SUBHASH REDDY ]
New Delhi,
December 04, 2018.
Apex court held that The reasons given by the trial court for acquittal mainly pertain to the delay in lodging the FIR, untrustworthy eye witnesses [ panchanama prepared at police station but not at death spot], improbability of identification of the accused [ laterin light behind the mob - non seizer of Torch light deposed by witness] , non- examination of independent witnesses, previous enmity between the accused and the witnesses, nonproduction of important prosecution witnesses and improper investigation of the case.-By differing with the view taken by the trial court on the above points, the High Court found
that the judgment of the trial court is perverse and that there is only one view possible which leads to the guilt of the accused. -The High Court could not have reversed a judgment of acquittal merely because another view is possible. The High Court brushed aside the findings
recorded by the trial court relating to certain omissions as being minor and held the omissions should not have been the basis on which the Appellants have been acquitted. The High Court ignored the fact that the presumption of innocence in favour of the
Appellants is further strengthened by an order of acquittal. No perversity in the judgment of the trial court in acquitting the Appellants has been demonstrated by the High Court for interfering with the judgment of the trial court. For the aforementioned reasons, the Appeals are allowed. The judgment of the High Court is set aside and the judgment of the trial court is restored.
1
Non Reportable
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL Nos . 407- 408 of2009
Mohd. Akhtar @ Kari & Ors. .... Appellants
Versus
State of Bihar & Anr. …. Respondents
J U D G M E N T
L. NAGESWARA RAO, J.
1. In these Appeals, we are concerned with the
correctness of the judgment of the High Court of
Judicature at Patna by which the judgment of the trial
court was set aside and the acquittal of the Appellants
was reversed. The High Court convicted the Appellants
under Section 302 read with Sections 34 and 148 of the
Indian Penal Code, 1860 (“the IPC”) and sentenced them
to undergo life imprisonment.
2. We are informed that the Appellant Nos. 1, 2 and 4
died during the pendency of these Appeals and so, the
2
Appeals filed by them abate. On the statement of the
informant Md. Abu Daud (PW-6), the fardbeyan was
recorded by the Officer Incharge of Matihani Police
Station at 9.00 p.m. on 05.01.1984. He stated that
along with his brother Md. Nadir Sah @ Jumma
(deceased), he had gone to the house of Md. Mobin
(PW-4) for collecting irrigation dues. They were basking
by the ghura (fire place) at Md. Mobin’s darwaza. A
mob of 10-11 persons armed with pistols, rifles and gun
came there at that time. The informant identified seven
out of eleven persons. Md. Chamru @ Sahadat was
armed with gun, Noor Alam with rifle, Md. Jam Alam
(Appellant No.4) with gun and Md. Kari @ Akhtar
(Appellant No.1), Md. Samad and Md. Sanjat
(Appellant No.3) also had fire arms. Immediately after
the mob reached, the accused Md. Chamru@ Sahadat
warned that nobody should try to escape and then Md.
Sanjat (Appellant No.3) fired one shot which did not hit
anybody. The informant, Md. Nadir Sah @ Jumma
(deceased) and Md. Mobin (PW-4) started running
and all the accused chased them. The informant hid
3
himself by the side of a Simal tree from where he saw
his brother Md. Nadir Sah @ Jumma (deceased) being
surrounded by the accused near the southern wall of the
house of one Samshul. After being
surrounded, the deceased Md. Nadir Sah @Jumma was
shot dead by Md. Chamru @ Sahadat, Md. Jan Alam and
Noor Alam. The accused fled towards the village and
soon after the informant and Md. Mobin rushed to where
the deceased was lying and found that he was hit by the
bullets. They started shouting for help. Md. Adil, Md.
Ataul Rehman and several others came. They were
informed about the incident by the informant.
3. On completion of the investigation, a charge sheet
was filed under Sections 148 and 302 read with Section
149 IPC against seven persons out of whom one of the
accused Md. Samad died and Md. Chamru @ Sahadat
and Noor Alam absconded. The remaining accused
i.e. the Appellants- herein faced trial for the charges
framed under Sections 148 and 302 read with Section
149 IPC. According to PW-9 Bishram Das, who was the
investigating officer, the information was received at
4
7.45 p.m. on 05.01.1984 that 2-3 shots were hurled
and one person killed in Saidpur village. After recording
S.D. Entry No.65, he proceeded to the Saidpur village
along with other policemen. After reaching
the place of the incident, he recorded the
statement of Md. Abu Daud and prepared an inquest
report. He also seized the blood soaked soil, ash of
ghura and a lantern.
4. Post-mortem examination of deceased Jumma was
conducted by PW-5 at 8.00 a.m. on 06.01.1984 who
found the following injuries on the person of the
deceased Md. Nadir Sah @ Jumma :
“(i) Deep wound with irregular burnt margin,
size x 2” x 2” over the right cheek with
surrounding areas with black stained with
comminuted fracture on the right side
mandible and maxilla and there was
laceration of the surrounding tissues of the
tongue. Multiple pillets and cork were
recovered which were preserved and sealed.
(ii) Penetrating wound ½” diameter with
burnt and inverted margin over the right
coastal cartilage middle of the right nipple
caused fracture of the cartilage. On further
deep dissection the right lunge was found
penetrated. There was also blood in the left
side of chest cavity. There was also
penetration of lower lobe of the left lung.
There was hole in the heart. There was
fracture of the ninth rib. There was wound on
5
the back size 1” in diameter with inverted
margine.”
5. Hemorrhage due to the above injuries was the
cause of death according to PW-5 and the death had
occurred 24 hours prior to the post-mortem
examination. Out of the 11 witnesses who were
examined by the Prosecution, PWs-3,4 and 6 were the
eye witnesses. PW-3 deposed that he heard the sound
of firing near the house of Samshul when he was
returning from Ghasarpur Tola and saw seven accused
who were chasing the deceased Md. Nadir Sah @
Jumma, Md. Abu Daud (PW-6) and Md. Mobin (PW-4).
Accused- Md. Jam Alam, Md. Sahadat and Noor Alam had
fired at the deceased near the house of Samshul. He
stated that he identified the accused by flashing his
torch light. According to him, the police arrived at the
place of the incident at 9.00 p.m. He testified that he
did not tell anybody about the incident till the police
reached there. PW-4 stated in his evidence that he
arranged a ghura (fireplace) with leaves at 6.00 p.m. on
05.01.1984. Md. Abu Daud (PW-6) and Md. Nadir Sah @
Jumma (deceased) who came to demand the remaining
6
irrigation dues from him also sat near the ghura. At that
time a mob of 11 persons suddenly came there. He
could identify seven out of eleven persons in mob in the
light of ghura and of lantern which was hanging in the
oriyani (veranda). He further deposed that he, the
deceased, and PW-6 started running away from the
mob. The deceased was surrounded by the accused
near the southern wall of Samshul’s house. He was shot
dead by the accused Sahadat, Md. Jam Alam and Noor
Alam. He stated that Md. Jam Alam and Sahadat had
guns, Noor Alam had a rifle and rest of the accused had
lathis. PW-6 who is the informant deposed that there
was sufficient light cast because of the ghura (fire
place), the lantern and the torch which he was carrying.
He witnessed the incident from behind the Simal tree
which was 15 yards from the place of occurrence.
6. The oral testimonies of PWs- 3,4 and 6 were
examined thoroughly and the trial court was of the
opinion that it is not safe to rely on their statements.
The trial court held that the evidence relating to
identification of the accused in the available light was
7
not convincing. There is reference to the evidence
regarding the lantern in the varanda which was behind
the place where the mob was standing and the
improbability of their being identified in the light
emitted by the lantern. The evidence of PW-6 that he
flashed a torch light for identifying the accused persons
was disbelieved as no torch was seized by the police.
For the aforesaid reasons, the trial court was of the
opinion that the eye witnesses could not have identified
the accused. Previous enmity between the accused on
one hand and the informant’s family on the other
was proved. The trial court further found that there was
a delay in lodging the FIR which provided an opportunity
to the informant and other PWs to implicate their
enemies. Thus, false implication could not be ruled out.
Further, the fardbeyan was recorded in the village at
9.00 p.m. on 05.01.1984. A dead body challan which
was prepared by J.N. Singh, Sub-Inspector of Police
(S.I.) which shows that the body was sent for postmortem
at 11.00 p.m. There was also an entry in the
station diary that J.N. Singh (S.I.) returned to the police
8
station at 9.00 p.m. If the fardbeyan was prepared at
9.00 p.m. at the place of incident which is six kilometers
away from the police station, J.N. Singh (S.I.) could not
have arrived at the police station at 9.00 p.m. The
record shows that he prepared the inquest report at
10.00 p.m. and the dead body challan at 11.00 p.m. at
the place of occurrence. J.N. Singh (S.I.) who is an
important witness was not examined by the prosecution.
Referring to the above circumstances, the trial court
held that it was clear that the inquest report and the
dead body challan were prepared later at the police
station. An adverse inference was drawn against the
Prosecution. The trial court also took note of the
presence of the Mangal Tanti, the Chowkidar of the
village, who reached the place of the incident in 30
minutes after the incident took place. He was not
examined as a witness. None of the witnesses deposed
that they informed the Chowkidar about the incident.
No independent witness was examined though the
village was hardly 200 metres from the place of the
incident. No pellet or traces of bullets were recovered
9
from the place of the incident. On the basis of the
above findings along with other contradictions in the
evidence of the witnesses, the trial court acquitted the
Appellants of all the charges against them.
7. The Appeals filed by the State and the revision filed
by the complainant, were taken altogether. The High
Court appreciated the evidence and found fault with the
judgment of the trial court. The High Court felt that
apart from minor inconsistencies, the evidence of the
eye witnesses was reliable and there was sufficient light
to identify the accused. The accused shared a
common intention of killing the deceased according to
the High Court. The delay in registering the FIR was
found to be not fatal to the case of the Prosecution. The
evidence of interested witnesses was also held reliable
by the High Court. The minor errors in
recording the time in the police station and the
non-examination of J.N. Singh (S.I.) did not prejudice the
prosecution’s case. By differing with the view taken by
the trial court on the above points, the High Court found
that the judgment of the trial court is perverse and that
10
there is only one view possible which leads to the guilt
of the accused. On the aforesaid findings, the High
Court convicted the Appellants under Section 302 read
with Sections 34 and 148 IPC and sentenced them to life
imprisonment.
8. The question that falls for determination in this
case is whether the High Court was right in setting aside
the acquittal of the Appellants and convicting them for
an offence of murder. While holding that there is no
limitation placed on the power to review the evidence in
an appeal against acquittal, Lord Russell in Sheo
Swarup v. King-Emperor
1
held:
“9. .. .. 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
1 (1934) 36 BOM LR 1185 ¶9
11
Judge who had the advantage of seeing the
witnesses.”
9. The approach of the High Court in an appeal
against acquittals was explained by this Court in
Surajpal Singh & Ors. v. The State
2
as follows:
“It is well-established that in an appeal
under section 417 of the Criminal Procedure
Code, the High Court has full power to review
the evidence upon which the order of
acquittal was founded, but it is equally wellsettled
that the presumption of innocence of
the accused is further reinforced by his
acquittal by the trial court, and the findings
of the trial court which had the advantage of
seeing the witnesses and hearing their
evidence can be reversed only for very
substantial and compelling reasons.”
10. This Court in Muralidhar @ Gidda & Anr. v.
State of Karnataka
3
referred to several earlier
judgments dealing with appeals against acquittals
and observed that the appellate court must bear in mind
the following :
“12. .. ..
(i) There is presumption of innocence in
favour of an accused person and such
2 (1952) 3 SCR 193
3 (2014) 5 SCC 730 ¶ 12 (i-iv)
12
presumption is strengthened by the order of
acquittal passed in his favour by the trial
court;
(ii) The accused person is entitled to the
benefit of reasonable doubt when it deals
with the merit of the appeal against
acquittal;
(iii) Though, the powers of the appellate
court in considering the appeals against
acquittal are as extensive as its powers in
appeals against convictions but the appellate
court is generally loath in disturbing the
finding of fact recorded by the trial court. It is
so because the trial court had an advantage
of seeing the demeanour of the witnesses. If
the trial court takes a reasonable view of the
facts of the case, interference by the
appellate court with the judgment of
acquittal is not justified. Unless, the
conclusions reached by the trial court are
palpably wrong or based on erroneous view
of the law or if such conclusions are allowed
to stand, they are likely to result in grave
injustice, the reluctance on the part of the
appellate court in interfering with such
conclusions is fully justified; and
13
(iv) Merely because the appellate court on
reappreciation and re-evaluation of the
evidence is inclined to take a different view,
interference with the judgment of acquittal is
not justified if the view taken by the trial
court is a possible view. The evenly balanced
views of the evidence must not result in the
interference by the appellate court in the
judgment of the trial court.”
11. It is relevant to refer to another judgment of this
Court in Ghurey Lal v. State of Uttar Pradesh
4
in
which the principles to be followed by the appellate
courts to overrule or otherwise disturb the trial court’s
acquittal were crystallised as under:
“70. …
1. The appellate court may only overrule or otherwise
disturb the trial court's acquittal if it has “very
substantial and compelling reasons” for doing so.
A number of instances arise in which the appellate
court would have “very substantial and compelling
reasons” to discard the trial court's decision. “Very
substantial and compelling reasons” exist when:
(i) The trial court's conclusion with regard to the facts
is palpably wrong;
4 (2008) 10 SCC 450
14
(ii) The trial court's decision was based on an
erroneous view of law;
(iii) The trial court's judgment is likely to result in
“grave miscarriage of justice”;
(iv) The entire approach of the trial court in dealing
with the evidence was patently illegal;
(v) The trial court's judgment was manifestly unjust
and unreasonable;
(vi) The trial court has ignored the evidence or
misread the material evidence or has ignored
material documents like dying declarations/report of
the ballistic expert, etc.
(vii) This list is intended to be illustrative, not
exhaustive.
2. The appellate court must always give proper
weight and consideration to the findings of the trial
court.
3. If two reasonable views can be reached—one that
leads to acquittal, the other to conviction—the High
Courts/appellate courts must rule in favour of the
accused.”
12. Interference with the judgment of the trial court in
this case by the High Court is on a re-appreciation of
evidence which is undoubtedly permissible. Though the
High Court was aware of the well-settled principles of
law in matters relating to appeals against acquittals, it
15
failed to apply the same in their proper perspective.
Interference with an order of acquittal is not permissible
on the ground that a different view is possible. If the
acquittal is justified on a probable view taken by the trial
court, it should not be interfered with. The reasons
given by the trial court for acquittal mainly pertain to
the delay in lodging the FIR, untrustworthy eye
witnesses, improbability of identification of the accused,
non- examination of independent witnesses, previous
enmity between the accused and the witnesses, nonproduction
of important prosecution witnesses and
improper investigation of the case. On a thorough
examination of the entire evidence on record and the
judgment of the trial court, we are of the considered
view that the judgment of acquittal by the trial court is
justified which ought not to have been interfered with by
the High Court. The High Court could not have reversed
a judgment of acquittal merely because another view is
possible. The High Court brushed aside the findings
recorded by the trial court relating to certain omissions
as being minor and held the omissions should not have
16
been the basis on which the Appellants have been
acquitted. The High Court ignored the fact that the
presumption of innocence in favour of the
Appellants is further strengthened by an order of
acquittal. No perversity in the judgment of the trial
court in acquitting the Appellants has been
demonstrated by the High Court for interfering with the
judgment of the trial court.
13. For the aforementioned reasons, the Appeals are
allowed. The judgment of the High Court is set aside
and the judgment of the trial court is restored. The
Appellant No.3 was released on bail on 30.01.2017. His
bail bonds are discharged.
...................................J.
[ L. NAGESWARA RAO ]
..................................J.
[ R. SUBHASH REDDY ]
New Delhi,
December 04, 2018.
