Damodarprasad Chandrikaprasad &
Ors Vs. State of Maharashtra  INSC 327 (29 November 1971)
CITATION: 1972 AIR 622 1972 SCR (2) 622 1972
SCC (1) 107
Practice and Procedure--Appeal against
acquittal--High Court's power of interference.
Evidence Act (1 of 1872), s. 157--F.I.R. not
proved through maker If admissible.
The High Court set aside an order of
acquittal of the appellants on various charges and convicted them. One of the
items of evidence on which the High Court relied was the first information
report. Though it was not proved through its maker when be gave evidence in the
trial court. the High Court held it to be admissible under s. 157 of the
Evidence Act. in appeal to this Court,
HELD : (1) The High Court was wrong in
holding that the First Information Report would be admissible under s. 157 of
the Evidence Act. Under that section. it could not be used as substantive
evidence but only to corroborate its maker.
The appellants were also denied the opportunity
of cross examination on the First Information Report. [627 A-D] (2) The High
Court, however, was correct in setting aside the order of acquittal and
convicting the appellants on the other evidence. [1639 D-G] In dealing with an
appeal against acquittal the High Court can go into questions of law and fact
and reach its own conclusion on evidence provided it pays due regard to the
principles for such review. These principles are giving due regard to, the
views of the trial Judge as to the credibility of the witnesses, the
presumption of innocence in favour of the accused, the right of the accused to
any benefit of doubt and the slowness of an appellate court in disturbing the
finding of fact arrived at by a Judge who had the advantage of seeing the
witnesses. The appellate court ill coming to its own conclusion should not only
consider every matter oil record having a bearing on questions of fact and the
reasons given by the trial court in support of the order of acquittal but
should also express reasons for holding that the acquittal was not justified.
If two conclusions can be reached with a plausible appearance of reason the
court should lean in favour of that which leads to acquittal and not to that
which lead, to conviction. But once the appellate court comes to the conclusion
that the view of the trial court was unreasonable that itself would provide a
reason for interference. [629 H; 630 A-E. 631 B-D] In the present case, the
High Court bid kept in view the rules and principles of appreciation of
evidence in setting aside the order of quitting. In such a case. this Court
would not ordinarily interfere with the order of conviction by the High Court
in an appeal against an acquittal, or review the evidence. [630 E; 631 B-D]
Harbans Singh and Anr. v. State of Punjab,  Supp. 1 S.C.R. 104, Senwat
Singh & Ors. v. State of Rajasthan,  3 S.C.R. 120. Nihal Singh &
Ors. v. State of Punjab,  4 S.C.R. 5, State of Bombay v. Rusy Mistry,
1960 S.C. 391 and Laxman Kalu Nikalje State of
 3 S.C.R. 695, followed.
623 Khedu Mohton & Ors. v. State of
Bihar, A.I.R. 1971 S.C. 66 and Sheo Swarup v., King Emperor, 61 I.A. 398,
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 138 of 1968.
Appeal by special leave from the judgment and
order dated the June 10, 1968, of the Bombay High Court in Criminal Appeal No.
667 of 1967.
V. S. Desai, P. S. Nadkarni and Vineet Kumar,
for the appellants.
S. K. Dholakia and B. D. Sharma, for the
The Judgment of the Court was delivered by
Ray, J. This is an appeal by special leave from judgment dated 10 June, 1968 of
the High Court at Bombay setting aside the order of acquittal of the appellants
and convicting them under section 325 read with section 34 of the Indian Penal
Code for having assaulted and injured Choharjasing and sentencing each of the
appellants to four years rigorous imprisonment and a fine of Rs. 1000 each and
six months rigorous imprisonment in default of payment of fine and further
convicting the appellants under section 323 read with section 34 of the Indian
Penal Code for having assaulted and injured Ramkeshwarsing and sentencing each
of the appellant's to three months rigorous imprisonment. The sentences were to
The appellants and another accused were
charged under sections 143, 147, 307 read with section 149 of the Indian Penal
Code. The four appellants were also charged under section 148 of the Indian
Penal Code. In the alternative the appellants were charged under section 307 read
with section 34 of the Indian Penal Code. The appellants and the other accused
were further charged under section 326 read with section 149 of the Indian
Penal Code. In the alternative they were charged under section 324 read with
section 34 of the Indian Penal Code. The appellants and the other accused were
further charged under section 324 read with section 149 of the Indian Penal
Code. In the alternative they were charged under section 324 read with section
34 of the Indian Penal Code.
The complainant Choharjasing and Nandlal are
brothers. They resided in room No. 5 of Vidya Bhuvan Kurla along with their
cousin Ramkeshwarsing and Gayitrising brother-in-law of Choharjasing.
Chollarjasing. Nandlal and Ramkeshwarsing were employed at Premier Automobiles
at Kurla. The, prosecution witness Awadh Narayan who resided at Moturam Chawl
was also employed at Premier Automobiles. Another prosecution witness 624
Dinanath was a shopkeeper residing at Halav Pool, Kurla.
The first appellant dealt in milk and resided
at Maulana Chawl, Halav Pool, Kurla. Appellant No. 2 is the brother of
appellant No. 1 and resided at a nearby Chawl at Halav Pool and was employed at
Premier Automobiles at Kurla. Appellant No. 3 also resided at Halav Pool Chawl,
Kurla and was employed at Premier Automobiles, Kurla. Appellant No. 4 resided
at another Chawl at Kurla and was also employed at Premier Automobiles, Kurla.
Accused No. 5 worked as a Mehtaji of one Jairaj Pandye and resided at Bhagwat
Bhuvan, Halav Pool, Kurla.
The prosecution case was this. The relation
between Choharjasing and his brother Nandlal on the one hand and appellants No.
1 and 2 on the other were strained for some time. On the morning of 15 October,
1964 Nandlal brought a truck load of earth and spread the same in front on
their room. On that account there was some altercation between him and
appellants No. 1, 2 and 3. On the morning of 16 October, 1964 Choharjasing left
his room and went to Podar Hospital at Worli for undergoing an operation for
He returned to his room at about 11 or 12
noon. On his return he was told by his brother Nandlal about the quarrel and
that the appellants and another accused had given a threat and enquired as to
where Choharjasing was. Nandlal further told Choharjasing that the appellants
and the other accused had threatened that they would break Choharjasing's hands
.and feet. Choharjasing went to the Police Station and filed a non-cognizable
complaint. The police directed Choharjasing to approach the proper criminal
Choharjasing went to prosecution witness
Dinanath and told him about the threats.
Choharjasing then returned to his room and
launched with his brother Nandlal, cousin Ramkeshwarsing and brother-in-law
Gaitrising. Choharjasing was not feeling comfortable after the ,operation. He
sat on a charpoy (cot) outside his room.
Nandlal was with Choharjasing. Ramkeshwarsing
was inside the room. At about 5 or 5.30 p.m. the appellants came there.
Appellant No. 1 was armed with a lathi. Appellants No. 2, 3 and 4 had also
lathis or something like iron bars.
Accused No. 5 was standing at some distance.
Accused No. 5 instigated the appellants by shouting the words 'Dekhte kya ho,
Mar Dalo' (what are you looking at, assault them).
Appellant No. 1 also shouted to assault. The
appellants surrounded Choharjasing and Nandlal and started assaulting them with
weapons. Appellants No. 1 and 4 hit Choharjasing.
Appellants No. 2 and 3 hit Nandlal.
Choharjasing fell down.
The assault continued. Appellant No. 2 thrust
his stick in the mouth of Choharjasing and he lost four of his teeth.
Choharjasing and Nandlal both fell
unconscious. Ramkeshwarsing received a blow on left hand.
625 The Sub-Inspector of Police, on getting a
telephone message came to the spot. On the way the Sub-Inspector met appellants
No. 1 and 4 each of whom had injuries on their person. They were put in the
police van. The van was taken to the place of incident. Choharjasing and
Nandlal were lying unconscious. Witnesses Awadh Narayan and Dinanath were
present there. Choharjsing. and Nandlal were put into the van and removed to
At the time of admission to the hospital
Choharjasing had 12 injuries. Nandlal had 5 injuries. Appellant No. 4 had 3
injuries. Choharjasing and Nandlal were detained in the hospital as indoor
patients from 16 October 1964 to 12 November, 1964. Appellant No. 4 in spite of
medical advice left the hospital on 17 October, 1964.
The trial Court acquitted all the 5 accused.
The trial Court gave these reasons. Choharjasing and Ramkeshwarsing, did not
mention accused No. 5. Witness Award Narayan did not mention accused No. 5.
Ramkeshwarsing did not mention accused No. 2, 3 and 5. Witness Awadh Narayan
did not mention accused No. 3. Choharjasing and Nandlal were all thin and of
weak build. The accused were hefty in build.
It is difficult to say why so many persons
would engage in the assault on two weak persons, particularly when Choharjasing
had just returned after operation from the hospital. The injuries on appellants
No. 1 and 4 were not satisfactorily explained. The possibility of persons from
the crowd feeling enraged at the assault on accused No. 1 to 5 who were holding
important offices in the local Congress organisation and then rushing forward
and inflicting injuries on the assaulters of Choharjasing and Nandlal two well
known persons of the locality cannot be ruled out as contended for by the
defence. Iron bars and sticks were not recovered. Ramkeshwarsing had failed to
go to the police station of his own accord. He and Choharjasing did not implicate
accused No. 5 in their earlier statements. The presence of accused No. 2 and 3
is not free from doubt.
Ramkeshwarsing and Awadh Narayan did not
mention accused No. 2 in their earlier statements. Ramkeshwarsing did ;not
mention the name of accused No. in his statement to the police. Choharjasing
and Nandlal could not explain how accused No. 1 and 4 came to receive the
injuries. Though the injuries on Choharjasing and Nandlal are no doubt serious,
the evidence does not satisfactorily establish that they were caused by the
accused in furtherance of their common intention and that they formed an
unlawful assembly and used force or violence and they rioted with deadly
weapons in prosecution of their common intention. The defence that accused No.
1 was assaulted and seeing 626 this accused No. 4 came there and he was
assaulted cannot in the circumstances be overlooked. With these reasons the
trial Court acquitted all the five accused.
The High Court set aside the order of
acquittal. The High Court arrived at these conclusions. The evidence
established that the grievous injury inflicted on Choharjasing and Nandlal and
the simple injury inflicted on Ramkeshwarsing were inflicted by the appellants.
The trouble arose on account of dispute over the open space adjoining the room
of Choharjasing. The appellants could not be convicted under section 307 of the
Indian Penal Code The appellants were guilty of causing grievous hurt. The High
Court, therefore, convicted the appellants for injuries sustained by Choharjasing,
Nandlal and Ramkeshwarsing.
Counsel for the appellants made these
submissions. The High Court interfered with the acquittal without giving any
reasons The first information report about the cognizance of the offence was
wrongly admitted in evidence. The incident on the morning of 16 October, 1964
could not be believed and therefore the entire prosecution would fail.
As to the incident on the morning of 16
October, 1964 the trial Court said that the time of recording the complaint on
16 October, 1964 was 11.05 am. where-as the complainant's version in court was
that he returned from the hospital at about 11 a.m. or 12 noon, when he
received information from Nandlal. Further in the complaint Choharjasing did
not mention about any of the accused and Nandlal also did not mention accused
No. 5. The land on which earth was spread belonged to one Khot and therefore
appellant No. 1 could not have interest in that land. Or these grounds the
trial Court did not accept the version that there was any occurrence on the morning
of 16 October, 1964.
The High Court, however, accepted the version
that there was an incident on the morning of 16 October, 1964 and said that
Chohajasing would not have taken the trouble of going to the police and lodging
a complaint. The High Court gave two broad reasons for accepting the
prosecution version about the incident on the morning of 16 October, 1964.
First, there was the complaint by Choharjasing. Secondly, Choharjasing had gone
to the hospital on the morning of 16 October, 1964 and on his return from the
hospital he went to lodge the complaint. Choharjasing would not have done so,
if there had been no incident in the morning.
The High Court referred to the first
information report about the commission of the offence and said that once the
statement was admitted in evidence it afforded a very strong corroboration 627
to the testimony of Choharjasing so far as the complicity of accused No. 1 to 4
in the crime was concerned and the first information report was admissible
under section 157 of the Evidence Act. The first information report is not
substantive evidence. It can be used for one of the limited purposes of
corroborating or contradicting the makers thereof. Another purpose for which
the first information report can be used is to show the implication of the
accused to be not an afterthought or that the information is a piece of
evidence res gestao. In certain cases, the first information report can be used
under section 32(1) of the Evidence Act or under section 8 of the Evidence Act
as to the cause of the informant's death or as part of the informer's conduct.
The High Court was wrong in holding that the first information report would be
admissible under section 157 of the Evidence Act. When the maker of the first
information report was examined in court the report was not tendered by the
prosecution in accordance with the provisions of the Evidence Act. The
appellants were denied the opportunity of cross-examination on the first
information report. The first information report was therefore wrongly relied
upon in evidence for the purposes suggested by the High Court.
It is therefore to @ seen as to whether the
High Court was justified in convicting the appellants on the evidence and the
grounds mentioned in the judgment.
The evidence of the complainant is that in
the afternoon of 16 October, 1964 all the appellants came armed with lathis or
something like iron bars and all the four appellants assaulted Choharjasing and
Nandlal with what the appellants had in their hands. The further evidence is
that appellant No. 2 thrust the lathi into Choharjasing's mouth and be lost
four of his teeth as a result of that.
Nandlal in his evidence stated that appellant
No. 2 gave a blow with a stick on his head. Nandlal and Choharjasing were
attempting to run away when appellant No. 3 assaulted Nandlal on his head with
what looked like an iron bar and appellant ,No. 4 also assaulted him with what
he was holding and which also looked like an iron bar. Nandlal further said
that appellant No. 2 assaulted him before he fell down and after he bad fallen
down all the appellants assaulted him.
Witness Ramkeshwarsing said that he saw all
the appellants and when Choharjasing and Nandlal had fallen on the ground they
were assaulted by all the appellants with sticks and iron bars. Ramkeshwarsing
further said that in the statement to the police he mentioned that he saw
appellant No. 1, 2 and two others.
628 Witness Awadh Narayan said that he knew
all the appellants and he saw sticks in their hands. He corroborated Nandlal's
evidence that appellant No. 2 assaulted with a stick Choharjasing on the mouth.
He also said that all the appellants continued assaulting Choharjasing and
He said that in his statement to the police
he mentioned the names of appellants No. 1 and 2.
Witness Dinanath said that he knew
Choharjasing and Nandlal for a few years and he also know the appellants. He
said that appellant No. 2 had a stick in his hand and appellant No. 2 assaulted
Nandlal on his head. His further evidence was that appellant No. 2 gave a
straight and perpendicular blow with a stick on the mouth of Choharjasing.
The Sessions Court was wrong in holding that
Ramkeshwarsing did not mention the name of appellant No. 2. He not only stated
in his oral evidence that he had mentioned the name of appellant No. 2 to the
police but this was also not challenged in cross-examination. The other
witnesses Choharjasing, Nandlal, Awadh Narayan and Dinanath all spoke about the
appellants who assaulted Choharjasing and Nandlal.
As to appellant No. 3 Choharjasing said that
appellants No. 3 and 4 carried something like iron bars of a black colour.
As far as appellant No. 3 is concerned there
is no contradictory police statement on the part of Choharjasing.
The oral evidence of Nandlal in relation to
appellant No. 3 was that he assaulted Nandlal. Nandlal in his statement to the
police also mentioned about appellant No. 3. There is no contradictory police
statement on the part of Nandlal as far as appellant No. 3 was concerned. Nor
was any such contradiction put to Nandlal.
The medical evidence about the injuries to
Choharjasing was that the injuries could be caused by hard and blunt substance
like iron bars and lathis and were likely to cause death if not medically
attended to. The medical evidence about the injuries to Nandlal was that those
injuries could be caused by coining in contact with hard and blunt substance
such as lathi, bamboo, stones, iron bars etc. and were serious injuries and
were likely to cause death if not medically attended to.
Ramkeshwarsing 'in his oral evidence said
that the appellants assaulted Choharjasing and Nandlal, He said that he did not
mention appellants No. 3 and 4 in the police statement because he did not know
them. There is no contradictory police statement as far as witness
Ramkeshwarsing is concerned in relation to appellant No. 3.
In his police statement he mentioned
appellants No., 1 and 2 and he said that two others assaulted Choharjasing and
Nandlal. Ramakeshwarsing thus spoke of four persons 629 assaulting Chohajasing
and Nandlal. That was not challenged in cross-examination. Witness Awadh
Narayan spoke of appellant No. 3. There is no contradictory police statement of
Awadh Narayan in relation to appellant No. 3.
Witness Dinanath spoke about appellant No. 3
assaulting Choharjasing and Nandlal. There is no cross-examination of Dinanath
that appellant No. 3 gave a blow with a stick to Nandlal.
On behalf of the appellants it was contended
that appellants, No. 2 and 3 did not receive any injuries and therefore it was
improbable that they would be involved in the assault. That contention is
unacceptable because of the clear and convincing evidence of several witnesses
about appellants No. 2 and 3 assaulting Choharjasing and Nandlal.
The trial Court was wrong in holding that the
names of appellants No. 2 and 3 were not mentioned by the witnesses to the
police. The names of appellants No. 2 and 3 were mentioned by the witnesses to
the police. The oral evidence of the witnesses was to that effect. That
evidence was not challenged.
The High Court was therefore justified in
coming to the conclusion that the acquittal of appellants No. 2 and 3 by the
trial Court was to be set aside. The evidence of the several witnesses that
appellants No. 2 and 3 assaulted Choharjasing and Nandlal cannot be discarded
on the statement that the appellants No. 2 and 3 did not receive injuries. It
does not follow that appellants ,No. 2 and 3 were not at the scene of
occurrence and did not commit the acts of assault just because there was no
injury on them.
As far as appellants No. 1 and 4 are
concerned the High Court was correct in holding that they were wrongly
acquitted by the trial Court. 12 injuries on Choharjasing and 5 injuries on
Nandlal were all serious in nature. The oral evidence was rightly accepted by
the High Court that all the appellants were guilty of assaulting Choharjasing,
Nandlal and Ramkeshwarsing.
Counsel for the appellants relied on the
decisions of this Court in Harbans Singh and Anr. v. State of Punjab
Suppl. (1) S.C.R. 1041 and Khedu Mohton & Ors. v.
State of Bihar A.I.R.. 1971 S.C. 66 in
support of the proposition that the High Court should not have interfered with
the acquittal by the trial Court and if on the ruling of this Court in Khedu
Mohton & Ors. v. State of Bihar (supra) two reasonable conclusions can be
reached on the basis of the evidence on record then the acquittal of the
accused should be preferred. The observations in Khedu Mohton's case mean this:
If two conclusions can be reached with a plausible appearance of reason the
court should can in favour of that which leads to acquittal and not to that 630
which leads to t conviction. Two views and conclusions cannot both be right and
one must be preferred over the other because our criminal jurisdiction demands
that the benefit of doubt must prevail.
As to powers of the appellate court this
Court in Sanwat Singh & Ors. v. State of Rajasthan (1961) 3. S.C.R. 120
laid down three principles. First, the appellate court had power to review the
evidence upon which the order of acquittal is founded. Second, the principles
laid down by the Judicial Committee in Sheo Swarup v. King Emperor 61 I.A. 398
are a correct guide for the approach by an appellate court. These principles
are that the views of the trial Judge as to the credibility of the witnesses,
the presumption of innocence in favour of the accused, the right of the accused
to the benefit of doubt and the slowness ,of an appellate court in disturbing
the finding of fact arrived at by a Judge who had the advantage, of seeing the
witnesses are the 'rules and principles' in the administration of justice.
Thirdly, the appellate court in coming to its own conclusion should not only
consider every matter on record having a hearing on the questions of fact and the
reasons given by the trial court in support of the order of acquittal, but
should also express reasons to hold that the acquittal was not justified.
in the light of the rulings of this Court to
which reference -has been made, we are satisfied that the High Court kept in
view the rules and principles of appreciation of evidence and the right of the
accused to the benefit of doubt and the, High Court gave reasons as to why the
occurrence on the morning of 16 October, 1964 was proved and also why the appellants
were found on the evidence on record to be guilty of having committed an
offence. Benefit of doubt was not sustainable in the present case inasmuch as
the materials on record. did not exclude the guilt of the appellants.
This Court in Khedu Mohton & Ors. v.
State of Bihar (supra) set aside the judgment of the High Court and restored
that of the Sessions Judge by acquitting the appellants because the High ,Court
did not deal with finding of the first appellate court that it was unsafe to
place reliance on the evidence of four prosecution witnesses who were
interested witnesses. Another feature which vitiated the approach of the High
Court in that case was that there was a delay of 8 days in filing the complaint
and the first appellate, court said that it threw a great deal of doubt on the
prosecution story. The High Court made reference to some information lead
before the Police and did not properly assess the delay in the filing of the
complaint. This Court found there that the information before the police prior
to the complaint was 631 an application that there was an apprehension of
breach of peace. It is in this context of facts that this Court said that the
High Court was wrong in setting aside the acquittal.
Once the appellate court came to the conclusion
that the view of the trial court was unreasonable that itself would provide a
reason for interference. Again if it was found that the High Court applied the
correct principles in setting aside the order of acquittal this Court would not
ordinarily interfere with the order of conviction passed by the High Court in
an appeal against acquittal or review the entire evidence where the High Court
was right in its view of evidence. Therefore, if the High Court has kept in
view the rules and principles of appreciation of the entire evidence and has
given reasons for setting aside the order of acquittal this Court would not
interfere with the order of the High Court [See Harbans Singh v. State of
This Court in Nihal Singh & Ors. v. State
of Punjab (1964) 4 S.C.R. 5 said that there were two ways of dealing with an
appeal by this Court from an order of conviction setting aside an acquittal.
One of the modes was to go through the evidence and find out whether the High
Court had infringed the principles laid down in Sanwat Singh v. State of
Rajasthan (supra) or whether the appeal was an exceptional one within the
ruling of this Court in State of Bombay v. Rusy Mistry A.I.R. 1960 S.C. 391
where the finding was such that 'it shocks the conscience of the court or that
it disregarded the forms of legal process or substantial and grave injustice
had been done.
In dealing with an appeal against an
acquittal the High Court can go into the questions of law and fact and reach
its own conclusion on evidence provided it pays due regard to the fact that the
matter had been before the Court of Sessions and the Sessions Judge had the
chance and opportunity of seeing the witnesses depose to the facts See Laxman
Kalu Nikalie v. The State of Maharashtra (1968) 3 S.C.R. .
The High Court was correct in setting aside
the order of acquittal and convicting the appellants. The appeal therefore
fails and is dismissed. If the appellants are on bail their bail bonds are
cancelled. They will surrender and serve out the sentence.
V.P.S. Appeal dismissed.