Rangaiah Vs. State of
Karnataka  INSC 2154 (12 December 2008)
IN THE SUPREME COURT
OF INDIA CRIMINAL APPELLATE JURISDICTION CRIMINAL APPEAL NO. 992 OF 2005
RANGAIAH ... APPELLANT Versus
S.B. SINHA, J.
is before us, aggrieved by and dissatisfied with a judgment of conviction and
sentence dated 7.6.2004 passed by a Division Bench of the High Court of
Karnataka at Bangalore in Criminal Appeal No. 32 of 1999 reversing a judgment
of acquittal dated 15.9.1998 in S.C. No. 30/91 passed in his favour by the 1st
Additional Sessions Judge, Mysore.
is a small village `Rammanahalli' situate near the town of Mysore. It has two
streets called `Kelaginakeri' and `Melinakeri'. A cinema tent was put therein.
There were two groups in the village residing 2 in one or the other said
streets. One group intended the owner of cinema/theatre to exhibit films
starring Dr. Rajkumar and the other group asked them to exhibit the films
starring Sri Vishnuvardhan. They had been asking the proprietor of the theatre
to release the films in which their favourite stars were acting. The occurrence
took place at about 8.00 a.m. on 9.12.1990.
prosecution case is as under:
deceased, had gone out of his house to have a cup of tea. A clash between two
groups of people from the aforementioned streets `Kelaginakeri' and
`Melinakeri' took place. During the said clash, appellant is said to have
stabbed the deceased with a knife when he was sitting near `Garadimane'
(Gymnesium). Maruchhaiah was taken to K.R. Hospital at Mysore. He died on the
next day, i.e. on 10.12.1990 at about 5.00 p.m. Appellant is said to have also
caused injury to Madhu (P.W.6) when he tried to intervene. The said occurrence
is said to have been witnessed by P.W. 6- Madhu, P.W.1-Maruchhaiah son of the
deceased Maruchhaiah and several others.
P.W. 1-son of the
deceased was also known as Maruchhaiah. A first information report was lodged
at the Mysore South Police Station, stating:
3 "On 9.12.1990
at 10 A.M. my father Maruchhaiah was sitting on the paial of Garadimane and at
that time Rachimallaiah and Rangaiah assaulted my father and Rangaiah stabbed
my father below the left shoulder. There is a dispute between one street
Keelanakeri street and for this they have injured my father. At that time
Chennaiah and Mahadeva's wife were present. I pray to take action."
allegedly made a dying declaration, which was recorded by P.W. 23 -J.S.
Srikanta Murthy, Investigating Officer in the presence of duty doctor, Dr.
Jagannath C.W.21. Dr. Jagannath, however, was not examined.
P.W. 23, in his
"He told before
me in the presence of the Medical Officer C.W. 21 that on 9.12.1990 at 10.00
while he was sitting
on the pial of his house, some people came in group and when he questioned
those persons why they were creating galata, at that time, accused came and
held him and stabbed him with knife. One Rachimallaiah (subsequently deleted in
the charge sheet) assaulted him with club and stabbed with knife, as a result
of the said injury, he fell bleeding and his son P.W. 1 admitted him to the
hospital. He said that due to ill-will, accused (Rangaiah) stabbed him with the
knife." (emphasis supplied) 4
23, in his deposition, had accepted that he did not obtain any certificate from
the doctor that the deceased was both in a mentally and physically fit
condition to give a dying declaration. Admittedly, no judicial officer was
asked to record a dying declaration although the deceased after receiving the
injury was alive for about 32 hours.
Dr. Hemavathy examined Maruchhaiah, the deceased and found only one cut injury
1 = cm x = cms on the left side of the posterior exillery fold. She found
`bleeding present'; air bubble was also seen from the wound.
1- Maruchhaiah is the complainant. He is son of the deceased.
According to him, the
people of `Kelaginakeri' started chasing `Melinakeri' people. Since they came
near his house, he also started running towards Rama Mandir. At that time
(i.e., while running), he saw the appellant stabbing his father below on the
left shoulder near arm pit. Later appellant and Madhu (P.W. 6) started
fighting. Madhu snatched the knife from the hands of appellant and in the process
he injured his right hand finger. The knife was stained with blood. According
to this witness, there is a pial in the Rama Mandir. In his cross-examination,
P.W. 1 stated that it cannot be seen from the road as to who is sitting on the
pial. He saw his father at 7.30 a.m. He took his father to the Hospital and
then came back to the police 5 station. He found Rachimallaiah there, who was
detained for having injured the appellant. People from `Melinakeri' street were
also present. In the First Information Report (FIR), he did not disclose that
Madhu was an eye- witness to the occurrence.
other important witness examined on behalf of the prosecution is Madhu (P.W.6).
He is said to have suffered injuries in the incident.
Allegedly, on the day
of incident at about 7.00 a.m., the deceased had asked him to bring a cup of
tea from the hotel which is at a distance of about 50 feet from the place of
occurrence. The incident took place when he brought tea for the deceased.
According to him, appellant stabbed the deceased in the left arm pit whereafter
he snatched the knife from him and in this process he injured his fingers and
when he questioned the appellant, he ran away.
He kept the said
knife with himself. He, for reasons best known to him, handed over the knife to
the police authorities on the next day of the incident. The knife did not
contain any blood stain. Although a seizure memo must have been prepared on the
date of incident, the police had taken his signature only on the next day. He
was injured on the date of incident but he went to the hospital for his
treatment only on the third day of the occurrence. According to him,
Rachimallaiah was not seen near the scene 6 of occurrence. He accepted that
prior to the incident police van was stationed in the village in the
`Kelaginakeri'area and it was shifted to the scene of occurrence thereafter.
other witnesses purported to be eye-witnesses to the occurrence were also
examined. P.W-12 Shivana, P.W.-13 Mahadeva and P.W.-14 Mallaiah were treated as
hostile. P.W.10 and P.W.11 being the daughter and son of the deceased did not
speak anything incriminating the appellant.
appellant also suffered injuries. Although appellant and Rachimallaiah were
named as the assailants of Maruchhaiah, a charge sheet was filed only against
the appellant. No reason therefor was disclosed. No explanation was offered.
were framed under Sections 302 & 324 of the Indian Penal Code for
committing murder of Maruchhaiah and causing injury to P.W.6 Madhu with a
knife. Before proceeding to consider the evidence of witnesses examined on
behalf of the prosecution, we may place on record that a day prior to the said
occurrence, i.e. on 8.12.1990, a quarrel had taken place between the two
groups. Police Personnel were stationed in the village. Two constables were
standing a little away from the place where the incident had allegedly taken
place. No police personnel was examined.
7 Why they could not
prevent the occurrence has not been disclosed. If they were near the scene of
occurrence, they must have witnessed the same. At least, they should have
reached the place of occurrence immediately thereafter.
may at this juncture notice the following post-mortem report dated 11.12.1990:
" I. EXTERNAL
1. Condition of
Subject : emaciated, decomposed, etc.
2. Wounds: Position,
3. Bruises: Position,
Size, nature 4. Mark of Ligatures on neck, dissection.
It was the dead body
of an old aged male, aged about 70 years of normal built and nourishment, body
was cold, height 170 cms, Hairs on the head were short 1 cm. long with a 5 cm.
long pig tail on the back of the head. The whole body upto inguinal region
including the serotum swollen and crepitations felt on palpation.
cornea clear, pupils dilated conjunctivae-congested. Rigor mortis was
established in the lower limbs and passing off from upper limbs. P.M. staining
could not be made out due to dark complexion.
External injuries: 1)
Stitched stab wound 2 cm x 0.5 cm. x 7.5 cm (as far as it could be probed)
situated over the left side of chest, 6 cm outer to nipple at 2.30 o' clock
position, beam below mid armpit over the 3rd intercostals region.
It had three
stitches. It was horizontally placed.
On dissection, the wound
had pierced the muscles, entered through the 3rd intercostals space, piercing
8 the pleura it had entered the surface of upper lobe of left lung as scratch
0.75 cm long.
2. A vertically place
situated stab would 2 cm x 0.5 cm x 7.5 cms in size with two stitches, situated
over the outer fold of left arm pit then entering the 1st intercostals space
obliquely piercing the pleura.
The margins of the
above injuries were clean cut, upper and were wide, inner and in No.
(1) and lower and in
No. (2) were clean cut. The left thorasic cavity contained 250 C.C. blood.
present pressing over the chest.
3. Needle puncture
mark over the inner aspect of left ankle.
All the above
injuries were ante-mortem in nature.
Opinion as to cause
Death was due to
Respiratory failure as a result of surgical emphysema. Consequent upon stab
injuries to left side of chest by a single edged weapon."
learned Sessions Judge recorded the judgment of acquittal, principally on the
(i). The scene of
occurrence has not been firmly established insofar as according to the deceased
he was sitting on the pial of his house 9 whereas according to P.W. 1 and P.W.
6, the incident took place near the Garadimane.
(ii) P.W.1 in his
complaint as also the deceased in his dying declaration categorically stated
that there were two cut injuries and one injury caused by club by the said
Rachimallaiah but only one stab injury was found. Although in the FIR both the
appellant and Rachimallaiah were said to have assaulted and caused stab
injuries but only one stab injury was found and P.W. 6 had snatched the knife
which had caused blood injury but no blood stain was found on the knife.
case was that the deceased wanted to have a cup of tea and when P.W. 6 was
taking one cup of tea from the hotel near the place of the incident and hardly
he was at a distance of 5 feet away from the deceased, the alleged incident
(iv) P.W. 13 Mahadeva,
the owner of the tea shop, however, categorically stated that he opened his
shop at 5.00 a.m. and closed by 7.00 a.m. as no milk was available. He reopened
his shop at 10.00 a.m.
(v) P.W. 14- Mallaiah
although claimed that at the time of the incident he was also stabbed by the
accused but neither any investigation in that regard was made nor any
additional charge against the accused for having stabbed this witness was
framed. The prosecution has not 10 offered any explanation for the said lapse.
P.W. 1 or P.W. 6 however did not make any reference to P.W.14 at all. The
report submitted by the F.S.I did not make any reference to P.W.14.
(vi) Dr. Channegowda,
P.W. 2 in his cross-examination stated that the name of the assailant was
mentioned in the Accident Register to be one Chikkavenkati. It is nobody's case
that appellant is also called Chikkavenkati.
(vii) Although P.W.
11 Alaiah, another son of the deceased in whose presence dying declaration is
said to have been made, stated about the presence of his sister P.W.10
Maniyamma at the time of dying declaration, in her deposition she merely stated
that some people had told her that appellant had stabbed her father. However,
she did not know who they were.
High Court however, reversed the said judgment of acquittal opining that the
findings of the learned Sessions Judge were perverse.
The High Court relied
upon the evidence of P.Ws. 1 and 6, to hold:
"We have gone
thoroughly through the entire cross-examination of these three witnesses and we
do not find any material discrepancies in the evidence of these witnesses to
the fact that the 11 deceased was near Garadimane and that he had requested
P.W. 6 to get a cup of tea from the nearby."
It was stated:
(i) P.W. 6's version
could not have been disbelieved as the accused had made a suggestion that he
had filed a complaint against him which shows the presence of the accused
during the incident.
(ii) The trial court
committed an error in disbelieving the evidence of P.W. 11 on the ground that
he had not disclosed the fact that the deceased told him that it is the accused
who stabbed him with knife to the police when his statement was recorded under
Section 161 of the Code of Criminal Procedure.
(iii) There is no
reason to disbelieve the dying declaration although Dr. Jagannath, C.W.21 was
of C.W. 21 does not mitigate the veracity of the dying declaration.
(v) As regards
non-examination of another Dr. Jayanth who was present at the time of dying
declaration and who had not issued any certificate when the dying declaration
was recorded by P.W.23 12 and who merely endorsed as "before me
signed", the High Court observed that the same was merely a rule of cause.
(vi) As the injury
suffered by the accused is of minor nature, the same was not required to be
In regard to seizure
of knife by P.W. 23, it was held in para 28:
assuming that M.O.3 may not have been the weapon used the facts and
circumstances of the case cannot be doubted specially the dying declaration
which is corroborated by the evidence of PWs 6, 11 and 27. The evidence on
record also discloses that in the dying declaration the deceased has stated
that not only the present accused but also another person Rachimallaiah has
also assaulted him with knife. But Rachimallaiah was later on given up by the
police. It is true that the prosecution has not sent up Rachimallaiah for trial
and the charge sheet was filed only against the accused. But that cannot be a
reason to acquit the respondent when the evidence on record pointed out that he
had participated in committing the offence. The reasoning given by the trial
court that the name of P.W. 6 does not find a place in the complaint Ex. P1 is
also of no consequence when it has been held in several cases by the Hon'ble
Supreme Court as well as High Court that it is not necessary to mention the
names of all the eye witnesses in the complaint."
Girish Anantmurthy, learned counsel appearing on behalf of the appellant, would
in support of the appeal contend that the High Court 13 committed a serious
error in reversing the well-reasoned judgment of the trial court. Reliance has
been placed on the decision of this Court in Himachal Pradesh vs. Sukhvinder
Singh [2004 AIR SCW 968].
It was further submitted
that as the purported dying declaration was recorded at 1.00 p.m. when all were
present, the dying declaration itself was made clearly as a result of tutoring
and was not a free and voluntary one.
Reliance in this
behalf has been placed on Mohan Lal & ors. vs. State of Haryana [(2007) 9
Sanjay R. Hegde, learned counsel appearing on behalf of the State, on the other
hand, would contend:
(i) The trial court
is not justified in disbelieving the evidence of eye-witness which clearly proved
that the accused was present at the time of occurrence.
(ii) The prosecution
case could not have been thrown out by the learned Sessions Judge only on the
ground that no charge sheet has been filed against the Rachimallaiah.
(iii) The trial court
committed a serious error in disbelieving the evidence of PW 6 on the premise
that Rangaiah was also called 14 Chikkavenkati although in the Accident
Register Chikkavenkati was shown to be the father of the appellant.
Reliance has been
placed by Mr. Hegde on State of Punjab vs. Karnail Singh [(2003) 11 SCC 271)
wherein this Court opined:
"6. There is no
embargo on the appellate Court reviewing the evidence upon which an order of
acquittal is based. Generally, the order of acquittal shall not be interfered
with because the presumption of innocence of the accused is further
strengthened by acquittal. The golden thread which runs through the web of
administration of justice in criminal cases is that if two views are possible
on the evidence adduced in the case, one pointing to the guilt of the accused
and the other to his innocence, the view which is favourable to the accused
should be adopted. The paramount consideration of the Court is to ensure that
miscarriage of justice is prevented. A miscarriage of justice which may arise
from acquittal of the guilty is no less than from the conviction of an
innocent. In a case where admissible evidence is ignored, a duty is cast upon
the appellate Court to re-appreciate the evidence even where the accused has
been acquitted, for the purpose of ascertaining as to whether any of the
accused committed any offence or not. [See Bhagwan Singh and Ors. v. State of
M.P.(2002) 4 SCC 85]. The principle to be followed by appellate Court
considering the appeal against the judgment of acquittal is to interfere only
when there are compelling and substantial reasons for doing so. If the impugned
judgment is clearly unreasonable, it is a compelling reason for
15 Reliance has been
placed by Mr. Hegde also on Devender Pal Singh vs. State of NCT of Delhi &
anr. [(2002) 5 SCC 234], wherein this Court held:
devotion to the rule of benefit of doubt must not nurture fanciful doubts or
lingering suspicions and thereby destroy social defence.
Justice cannot be
made sterile on the plea that it is better to let a hundred guilty escape than
punish an innocent. Letting the guilty escape is not doing justice according to
law. [See Gurbachan Singh v.
Satpal Singh (1990) 1
SCC 445]. Prosecution is not required to meet any and every hypothesis put
forward by the accused. [See State of U.P. v. Ashok Kumar Srivastava (1992) 2
we advert to the respective contentions made by the learned counsel, we may
record the well known principles laying down the parameters of reversing a
judgment of acquittal.
A judgment of
acquittal passed should not be interfered with when two possible views are
possible. We, therefore, are required to consider as to whether the view taken
by the learned Sessions Judge was a probable one. The fact that the incident
took place is not in dispute. What is in dispute is the manner in which the
same took place and whether the appellant had participated therein. It was not
the prosecution case that the appellant was on inimical terms with the deceased
or his family. Two 16 groups of residents of the same village had been
quarrelling with each other.
An incident took
place within a day prior to the date of occurrence. Police personnel were
posted. A police van was also stationed. If the prosecution case is to be
believed, two constables were standing near the place of occurrence. It is
beyond anybody's comprehension as to why when one group of people were chasing
another group of people they did not intervene and why despite a police van
being stationed, the deceased should have been shifted in the hospital in an
auto rickshaw. The place of occurrence also is not fixed. According to the
prosecution witness, deceased had gone out of his house to take a cup of tea
near the hotel of P.W. 13 Mahadeva. P.W.13, however, said that he closed his
shop at 7.00 a.m. Why more than two hours' time was taken for getting a cup of
tea for the deceased is again beyond anybody's comprehension. Whereas according
to the dying declaration the deceased was sitting on a pial of his house, where
the incident is said to have taken place; according to P.Ws 1 and 6, the place
of occurrence was near the `Garadimane'.
in the FIR as also in the dying declaration, the name of Rachimallaiah was
already stated but no charge sheet was filed against him.
No explanation has
been offered as to why he was not charge-sheeted.
17 No explanation
has also been offered as to why the dying declaration could not be recorded by
a judicial officer. The doctor on the basis of whose certificate, P.W. 23 -
Investigating Officer recorded the dying declaration, was not examined.
At the time of
recording of the dying declaration, the deceased was surrounded by his own
people. Veracity of the said statement, therefore, cannot be said completely
In Mohan Lal &
ors. vs. State of Haryana [(2007) 9 SCC 151], it was held:
"10. Though a
dying declaration is entitled to great weight, it is worthwhile to note that
the accused has no power of cross- examination. Such a power is essential for
eliciting the truth as an obligation of oath could be. This is the reason the
Court also insists that the dying declaration should be of such nature as to
inspire full confidence of the Court in its correctness. The Court has to be on
guard that the statement of the deceased was not as a result of either tutoring
or prompting or a product of imagination. The Court must be further satisfied
that the deceased was in a fit state of mind after a clear opportunity to
observe and identify the assailant. Once the Court is satisfied that the
declaration was true and voluntary, undoubtedly, it can base its conviction
without any further corroboration. It cannot be laid down as an absolute rule
of law that the dying declaration cannot form the sole basis of conviction
unless it is corroborated. The rule requiring corroboration is merely a rule of
prudence. This Court has laid down in several judgments the principles 18
governing dying declaration, which could be summed up as under as indicated in
Smt. Paniben v. State of Gujarat (1992) 2 SCC 474: (SCC pp. 480-81, paras
18-19) (i) There is neither rule of law nor of prudence that dying declaration
cannot be acted upon without corroboration. [See Munnu Raja v. State of M.P.
(1976) 3 SCC 104] (ii) If the Court is satisfied that the dying declaration is
true and voluntary it can base conviction on it, without corroboration. [See
State of U.P. v. Ram Sagar Yadav (1985) 1 SCC 552 and Ramawati Devi v. State of
Bihar (1983) 1 SCC 211] (iii) The Court has to scrutinize the dying declaration
carefully and must ensure that the declaration is not the result of tutoring,
prompting or imagination. The deceased had an opportunity to observe and
identify the assailants and was in a fit state to make the declaration. [See K.
Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618] (iv) Where the dying
declaration is suspicious, it should not be acted upon without corroborative
evidence. [See Rasheed Beg v. State of Madhya Pradesh (1974) 4 SCC 264] (v)
Where the deceased was unconscious and could never make any dying declaration,
the evidence with regard to it is to be rejected. [See Kake Singh v. State of
M.P.(1981 Supp. SCC 25)] 19 (vi) A dying declaration which suffers from
infirmity cannot form the basis of conviction. [See Ram Manorath v. State of
U.P. (1981) 2 SCC 654] (vii) Merely because a dying declaration does contain
the details as to the occurrence, it is not to be rejected. [See State of
Maharashtra v. Krishnamurthi Laxmipati Naidu (1980 Supp. SCC 455)] (viii)
Equally, merely because it is a brief statement, it is not to be discarded. On
the contrary, the shortness of the statement itself guarantees truth. [See
Surajdeo Oza. v. State of Bihar (1980 Supp. SCC 769)].
(ix) Normally the
Court in order to satisfy whether the deceased was in a fit mental condition to
make the dying declaration looks up to the medical opinion. But where the
eye-witness said that the deceased was in a fit and conscious state to make the
dying declaration, the medical opinion cannot prevail. [See Nanahau Ram. v.
State of M.P. (1988 Supp. SCC 152)].
(x) Where the
prosecution version differs from the version as given in the dying declaration,
the said declaration cannot be acted upon. [See State of U.P. v. Madan Mohan
(1989) 3 SCC 390].
(xi) Where there is
more than one statement in the nature of dying declaration, one first in point
of time must be preferred. Of course, if the plurality of dying declarations
could be held to be trustworthy and reliable, it has to be accepted. [See
Mohanlal Gangaram Gehani v. State of Maharashtra (1982) 1 SCC 700]"
this case, the prosecution version is totally different from the dying
declaration. The alleged participation of Rachimallaiah had been totally
ignored by the High Court. It could not have been done for the purpose of
judging the truthfulness or otherwise of the dying declaration. The statement
of the deceased made in his dying declaration was required to be considered
from the said perspective.
The High Court
committed an error in proceeding on the basis that although M.O.3 might not
have been the weapon used but the appellant could be convicted only on the
basis of the statements made by P.Ws 6, 11 and 27. If M.O.3 was not the weapon
of attack, the statement of P.W.6 which has been supported by P.W.1 that he had
snatched the said knife from the hands of the appellant could not have been
believed. The presence of P.W. 6 also becomes doubtful, as he had not been
named as eye-witness in the FIR. As the FIR was lodged after the deceased was
taken to hospital and the treatment started, it is also difficult to believe
P.W. 1 who testified that he was an eyewitness to the role of P.W.6 and the
fact that he was also injured in the process. The High Court has also not
assigned any reason for holding that as to when the statement of P.W. 11 was
recorded by the police, is of not much significance. The High Court has not
adverted to the 21 question that although in the FIR and the dying declaration
both the appellant and Rachimallaiah had been said to have assaulted the
deceased, P.W.1 in his deposition as also other prosecution witnesses
attributed the overt act only on the part of the appellant herein.
High Court, in our opinion, did not apply the right test for reversing a
judgment of acquittal. The findings of the learned Sessions Judge were
probable. Such a view was possible. By no standard, the views of the learned
Sessions Judge can be said to be wholly unacceptable. The parameters laid down
by this Court in regard to a judgment of acquittal are well known. We may,
however, refer to a few precedents in this behalf.
Chandrappa & ors. vs. State of Karnataka [(2007) 4 SCC 415], this Court
"42. From the
above decisions, in our considered view, the following general principles regarding
powers of appellate Court while dealing with an appeal against an order of
(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;
22. (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 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
(4) SCALE 389], this
"29. We may at
this juncture notice a few precedents operating in the field.
23. In Jagdish & Anr.
v. State of Madhya Pradesh [2007 (11) SCALE 213], this Court held:
"12. The High
Court while dealing with an appeal from a judgment of acquittal was, thus,
required to meet the aforementioned reasonings of the learned Trial Judge.
There cannot be any
doubt whatsoever that irrespective of the fact that the High Court was dealing
with a judgment of acquittal, it was open to it to re-appreciate the materials
brought on records by the parties, but it is a well-settled principle of law that
where two views are possible, the High Court would not ordinarily interfere
with the judgment of acquittal. [See Rattan Lal v. State of Jammu & Kashmir
- 2007 (5) SCALE 472].
24. 14. It is unfortunate
that the High Court while arriving at the aforementioned conclusion did not
pose unto itself the right question. In the event, it intended to arrive at a
finding different from the one arrived at by the Trial Court, it was obligatory
on its part to analyze the materials on record independently. The High Court
was also required to meet the reasoning of the learned Trial Judge. If the
learned Trial Judge upon appreciation of the evidence arrived at a conclusion
that the time of occurrence disclosed in the First Information Report was not
correct inasmuch whereas the occurrence is said to have taken place at 08.00
a.m. but in fact it took place much prior thereto, it could not be opined that
the First Information Report was lodged within an hour of the incident..."
It was noticed:
24 "17. Yet
again in Kallu alias Masih and Others v. State of M.P. [(2006) 10 SCC 313],
this Court opined :
deciding an appeal against acquittal, the power of the Appellate Court is no
less than the power exercised while hearing appeals against conviction. In both
types of appeals, the power exists to review the entire evidence. However, one
significant difference is that an order of acquittal will not be interfered
with, by an appellate court, where the judgment of the trial court is based on
evidence and the view taken is reasonable and plausible. It will not reverse
the decision of the trial court merely because a different view is possible.
The appellate court will also bear in mind that there is a presumption of
innocence in favour of the accused and the accused is entitled to get the
benefit of any doubt.
Further if it decides
to interfere, it should assign reasons for differing with the decision of the
[See also Rattanlal
(supra) and Ramappa Halappa Pujar & Others v. State of Karnataka - 2007 (6)
[See also Chandrappa
& Ors. v. State of Karnataka 2007 (3) SCALE 90 and Haji Khan v. State of
U.P. [(2005) 13 SCC 353] Recently in Abdul Gafur & Ors. v. The State of
Assam [2007 (13) SCALE 801], a Bench of this Court held:
"10. The accused
persons are not strangers and were practically neighbours of the informant and
his family. The High Court noted that there was no intention to falsely 25
implicate accused persons because of enmity and there was no reason as to why
dignity of two young girls would be put at stake by alleging rape. It is to be
noted that in fact rape was alleged but the Trial Court found that there was no
material to substantiate the plea of rape. The evidence is totally inconsistent
and lacks credence.
The High Court's
observations were clearly based on surmises and contrary to the factual
scenario. The High Court has noted that the evidence of PWs. 1,2,3,5 & 8
stand fully corroborated by the medical evidence.
consideration of the evidence of PW 4, it is clear that the evidence of this
witness is clearly contrary to the medical evidence. To add to the confusion,
it is noted that the High Court recorded as finding that appellant Abdul Gafur
was absconding. As a matter of fact the evidence of Investigating Officer (in
short the 'I.O') shows that he had arrested Abdul Gafur on the date the First
Information Report (in short the 'FIR') was lodged. Unfortunately the High
Court has merely referred to certain conclusions of the Trial court without
analyzing the evidence and various submissions made by the appellants. To add
to the vulnerability of the prosecution version, the FIR was lodged long after
the incident and in fact law was already set on motion after the telephonic
message had been received.
11. The aforesaid infirmities
in the background of admitted animosity between the parties renders the
prosecution version unacceptable. The Trial Court and the High Court did not
analyse the evidence correctly and acted on mere surmises and conjectures.
26 That being so, the
appellants deserve to be acquitted, which we direct."
The High Court
unfortunately failed to bear in mind the aforementioned legal principles. The
High Court misdirected itself at various stages. It was wholly unfair to the
23. In Ghurey Lal vs.
State of U.P. [2008 (10) SCALE 616], this Court held:
marshalling the entire evidence and the documents on record, the view taken by
the trial court is certainly a possible and plausible view.
The settled legal
position as explained above is that if the trial court's view is possible and
plausible, the High Court should not substitute the same by its own possible
views. The difference in treatment of the case by two courts below is
particularly noticeable in the manner in which they have dealt with the
prosecution evidence. While the trial court took great pain in discussing all
important material aspects and to record its opinion on every material and
relevant point, the learned Judges of the High Court have reversed the judgment
of the trial court without placing the very substantial reasons given by it in
support of its conclusion. The trial court after marshalling the evidence on
record came to the conclusion that there were serious infirmities in the
prosecution's story. Following the settled principles of law, it gave the
benefit of doubt to the accused. In the impugned judgment, the High Court
totally ignored the settled legal position and set aside the well reasoned
judgment of the trial court.
77. The trial court
categorically came to the finding that when the substratum of the evidence of
the prosecution witnesses was false, then the 27 prosecution case has to be
discarded. When the trial court finds so many serious infirmities in the
prosecution version, then the trial court was virtually left with no choice but
to give benefit of doubt to the accused according to the settled principles of
78. On careful
analysis of the entire evidence on record, we are of the view that the reasons
given by the High Court for reversing the judgment of acquittal is
unsustainable and contrary to settled principles of law. The trial court has
the advantage of watching the demeanour of the witnesses who have given
evidence, therefore, the appellate court should be slow to interfere with the
decisions of the trial court. An acquittal by the trial court should not be
interfered with unless it is totally perverse or wholly unsustainable.
25. For the
aforementioned reasons, the impugned judgment cannot be sustained. It is set
aside accordingly and judgment of the trial court restored. The appeal is
allowed. The appellant who is in custody is directed to be released forthwith
unless wanted in connection with any other case.