Ajitsingh Thakursingh & ANR Vs.
State of Gujarat [1981] INSC 8 (9 January 1981)
PATHAK, R.S.
PATHAK, R.S.
SARKARIA, RANJIT SINGH
CITATION: 1981 AIR 733 1981 SCR (2) 509 1981
SCC (1) 495 1981 SCALE (1)54
ACT:
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970-S. 2 Indian Penal Code, S. 302 High Court setting aside
order of acquittal of Sessions Court - Approach to be adopted by High Court in
exercising appellate powers - High Court to consider whether integrality of
evidence alone can ensure that accused are guilty.
Limitation Act 1963, Art, 114 & S.
5-Delay in filing appeal against order of acquittal-Condonation of-Any event or
circumstance arising after expiry of limitation-whether can constitute
'sufficient cause'.
HEADNOTE:
The two appellants who were father and son
along with another son, who was acquitted were charged with the offence of
committing the murder of the deceased and of causing injuries to his two
brothers all of whom were residing in a chawl belonging to the first appellant.
The prosecution alleged that on the fateful day the appellants demanded payment
of rent from the deceased and refusal to make immediate payment infuriated the
second appellant who inflicted two kirpan blows on him. When the deceased
started running to the room of his brothers he was pursued and further kirpan
blows were inflicted on him. His brothers were also attacked by the three
accused. After the incident all the accused ran away from the place leaving
their bicycles behind. The deceased succumbed to his injuries in the hospital
and one of his brothers was admitted as an indoor patient.
The three accused were tried by the Addl.
Sessions Judge. As there were material contradictions in the 'eye witnesses'
account of the sequence of events, the exact places where the blows were
struck, and the role played by each accused and the seizure of four bicycles by
the police at the scene being inconsistent with the prosecution case that three
persons, the accused were involved the Sessions Judge held the evidence to be
untrustworthy and being of opinion that it was unsafe and hazardous to convict
the accused on such testimony he gave them the benefit of doubt and acquitted
them.
No appeal was filed at first because the
State Government saw no case on the merits for an appeal. However, in a
revision petition filed by one of the brothers of the deceased the High Court
declared that the case was a fit case where the State Government should file an
appeal.
Thereafter, the State Government filed an
appeal, in the High Court and prayed for condonation of the delay in filing the
appeal. The High Court condoned the delay considered the appeal on its merits,
and allowed it against the two appellants. The appeal against the acquittal of
the third accused was dismissed.
Allowing the appeal to this Court:
HELD: 1(i) There was no sufficient cause for
the State not filing the appeal within time, and the High Court erred in
condoning the delay.
[512 F-H] 510 (ii) A party is entitled to
wait until the last day of limitation for filing an appeal. But when it allows
limitation to expire and pleads sufficient cause for not filing the appeal
earlier, the sufficient cause must establish that because of some event or
circumstance arising before limitation expired it was not possible to file the
appeal within time. No event or circumstance arising after the expiry of
limitation can constitute such sufficient cause. There may be events or
circumstances subsequent to the expiry of limitation which may further delay
the filing of the appeal. But that the limitation has been allowed to expire
without the appeal being filed must be traced to a cause arising within the
period of limitation. [512 G] 2(i) The High Court erred in interfering with the
judgment of the trial court. [515 D] (ii) The approach to be adopted by the
High Court when exercising its appellate powers in a case of appeal against an
order of acquittal has been defined in a long line of cases. As long ago as
1934, the Privy Council declared that the High Court must give proper weight
and consideration to "such matters as (1) the view of the trial judge as
to the credibility of the witnesses; (2) the presumption of innocence in favour
of the accused, a presumption certainly not weakened by the fact that he has
been acquitted at his trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate court in disturbing a finding of
fact arrived at by a Judge who had the advantage of seeing the witnesses".
The approach has been endorsed by this Court repeatedly and in a very recent
decision it has been held that if the main grounds on which the Court below has
based its order acquitting the accused, are reasonable and plausible, and
cannot be entirely and effectively dislodged or demolished, the High Court
should not disturb the acquittal.
[514D-F; H Warren Ducane Smith v. The King
A.I.R. 1934 P.C.227 & Ganesh Bhavan Patel & Anr. v. State of
Maharashtra [1979] 2 S.C.R. 94, referred to.
(iii) The High Court after specifically
referring to the aforesaid legal position, overlooked the limitations imposed
on it and embarked on a course not warranted by law.
It took into particular regard a few
considerations which seemed to it to assume importance and has concentrated on
some of the material only, omitting to consider in the process that the
integrality of the evidence alone can ensure whether the accused are guilty.
[515A, C] In the instant case the High Court referred to the recovery of a
blood stained slipper and a diary from the scene of the offence, and inferred
that they belonged to the first appellant. This connection has not been
properly established. The papers found in the diary do not necessarily show
that the diary belonged to him. Nor is there sufficient proof that the slipper
is his.
[515 B] 3 The trial court wrote a careful
judgment, exhaustively considering all the evidence and on painstaking analysis
reached conclusion which are preeminently reasonable and support the order of
acquittal. [513 B]
CRIMINAL APPELLATE JURISDICTION: Criminal
Appeal No. 329 of 1979.
From the Judgment and Order dated 9-4-1979 of
the Gujarat High Court in Criminal Appeal No. 270/76.
511 Rajandra Prasad Singh, M/s. K. G.
Vakharia, P. H. Parekh and Ratan Karanjawala for the Appellants.
T. U. Mehta, M. N. Shroff and Himantika Wahi
for the Respondent.
The Judgment of the Court was delivered by
PATHAK, J. This appeal, preferred under the Supreme Court (Enlargement of
Criminal Appellate Jurisdiction) Act, 1970, is directed against the judgment
and order of the High Court of Gujarat setting aside the judgment and order of
acquittal passed by the trial court and convicting and sentencing the
appellants for offences under s. 302 read with s. 34, Indian Penal Code, and under
s. 326 read with s.
34 of the Code.
The appellants, Ajit Singh and Balwant Singh,
are father and son. Another son is Mohan Singh. All three were charged with the
murder of Manilal and with causing injuries to Parmabhai, Bhulabhai and
Natwarlal. The prosecution case is that Manilal, Bhulabhai and Bhikabhai were
three brothers residing in a chawl belonging to the appellant Ajit Singh, that
on 9th April, 1975 Manilal drew his salary from the factory where he worked and
at about 6.45 p.m. on returning to his room in the chawl he was met by the
appellants and Mohan Singh. They demanded payment of rent but Manilal said he
would pay it only on the next day. His refusal to make immediate payment is
alleged to have infuriated Balwant Singh who, it is said, inflicted two kirpan
blows on him.
Upon this Manilal started running away,
pursued by the three accused, and headed towards the room of Parmabhai. Further
kirpan blows were inflicted on him there by the appellants.
Parmabhai, who had emerged from his room, was
also attacked and given a kirpan blow. Manilal, meanwhile, turned and entered
the house of Shanabhai. Ajit Singh is alleged to have struck him further blows
there in consequence of which he fell down. Bhulabhai, who arrived on the
scene, was also struck a kirpan blow. Mohan Singh is alleged to have wielded a
bamboo stick and hit Natwarlal on the head with it. All three accused are said
to have run away from the place then, leaving their bicycles behind. Manilal
was removed to the hospital and declared dead. Parmabhai was admitted as an
indoor patient.
Shanabhai telephoned the police control room
and informed them of the incident, and the Gomtipur Police Station recorded a
complaint made by Bhulabhai.
512 The three accused were tried by the
learned Additional Sessions Judge, Ahmedabad (Rural), who after considering the
evidence on the record acquitted the accused by his judgment and order dated
15th October, 1975.
On 26th April, 1976 the State filed an appeal
in the High Court and prayed for condonation of the delay in filing it. The
High Court condoned the delay, considered the appeal on its merits and allowed
it against Ajit Singh and Balwant Singh. They were convicted under s. 302 read
with s. 34 of the Code and sentenced to imprisonment for life. They were also
convicted under s. 326 read with s. 34 of the Code but no separate sentence was
passed thereunder. The appeal against the acquittal of Mohan Singh was
dismissed.
At the outset, it is urged by learned counsel
for the appellants that the High Court erred in condoning the delay in filing
the appeal, and the appeal should have been dismissed as barred by limitation.
We have examined the facts carefully. It appears that initially the State
Government took a decision not to file an appeal and it allowed the period of
limitation to lapse. Subsequently, on certain observations made by the High
Court while considering a revision petition by Bhulabhai that it was a fit case
where the State Government should file an appeal and on notice being issued by
the High Court to the State Government in the matter, the appeal was filed. It
was filed three months after limitation had expired. A faint attempt was made
to show that when the initial decision was taken not to file an appeal all the
papers had not been considered by the department concerned, but we are not
impressed by that allegation. The truth appears to be that the appeal was not
filed at first because the State Government saw no case on the merits for an
appeal, and it was filed only because the High Court had observed-and that was
long after limitation had expired-that the case was fit for appeal by the State
Government. Now, it is true that a party is entitled to wait until the last day
of limitation for filing an appeal. But when it allows limitation to expire and
pleads sufficient cause for not filing the appeal earlier, the sufficient cause
must establish that because of some event or circumstance arising before
limitation expired it was not possible to file the appeal within time. No event
or circumstance arising after the expiry of limitation can constitute such
sufficient cause. There may be events or circumstances subsequent to the expiry
of limitation which may further delay the filing of the appeal. But that the
limitation has been allowed to expire without the appeal being filed must be
traced to a cause arising within the period of limitation. In the present case,
there was no such cause, and the High Court erred in condoning the delay.
513 It is pointed out that the High Court
could have sent for the record in the exercise of its revisional jurisdiction
and examined the case. That is quite another matter and raises other questions.
We are concerned here with the question whether the delay in filing the appeal
could have been condoned.
But quite besides this, there was also no
merit in the appeal filed before the High Court. The trial court wrote a
careful judgment, exhaustively considering all the evidence and on painstaking
analysis reached conclusions which, in our opinion, are pre-eminently reasonable
and support the order of acquittal. It found that the evidence did not
establish that the injury suffered by Bhulabhai could have resulted from a
kirpan, that the panch witnesses to the recovery of the two kirpans did not
support the prosecution, that of the six eyewitnesses one of them, Ramiben,
widow of Manilal, was not present on the scene at all, that all the eye
witnesses had indulged in palpable falsehood in attempting to implicate Mohan
Singh when plainly he was not there (the State appeal against his acquittal was
dismissed by the High Court), that there were material contradictions between
the different eye-witnesses concerning the sequence of events, the exact places
where the blows were struck, and the role played by each accused, that the
information given by one eye witness, Shanabhai, to the police control room
mentioned merely that four or five "sardarjis" had come to the chawl
and had injured two persons with a knife, and although admittedly Shanabhai had
known the accused by name for the last four or five years he did not mention
their names in that report. It is also in evidence that it was already dark
when the incident took place and there were no municipal lights within the
limits of the chawl. The trial court has further adverted to the circumstance
that four bicycles were seized by the police at the scene, which is
inconsistent with the prosecution case that three persons, the accused, were
involved. As regards the complaint filed by Bhulabhai, the trial court has
found that it could not be admitted in evidence under s. 154, Code of Criminal
Procedure, and there was ample material to show that the eye-witnesses had
plenty of time to confer with one another before the complaint was drawn up.
The trial court also adverted to the fact that the police did not record the
statement of the remaining eye-witnesses that very night.
The Prosecuting Inspector also admitted in
cross-examination that during the investigation all the eye-witnesses came
forward with "stereotype" statements. One other significant fact
remains. According to the evidence the incident was witnessed by several other
people, but not a single independent witness has come forward to support the
prosecution. The eye-witnesses produced are either related or members 514 of
the same community; members of other communities also lived in the chawl and
admittedly were on cordial terms with the complainant Bhulabhai and the other
witnesses. The trial court pointed out that the eye-witnesses were, already
prior to the incident, extremely hostile to the accused. There was a running
war between them in the matter of payment of rent, and disputes had arisen
concerning ownership of the property and criminal proceedings had been taken.
At this point, it is relevant to note that Ajit Singh used to employ one
Shivram for collecting rents. In all the circumstances, the trial court
observed that when the witnesses could not identify the four or five Sardarjis
who had come to the chawl, they put their heads together and decided to involve
Ajit Singh and his two sons. Holding that the evidence was untrustworthy and it
would be highly unsafe and hazardous to convict the accused on such testimony
the trial court gave them the benefit of doubt and acquitted them.
We may observe that the High Court had before
it an appeal against an order of acquittal. The approach to be adopted by the
High Court when exercising its appellate powers in such a case has been defined
in a long line of cases. As long ago as Warren Ducane Smith v. The King the
Privy Council declared that the High Court must give proper weight and
consideration to "such matters as (1) the view of the trial judge as to
the credibility of the witnesses; (2) the presumption of innocence in favour of
the accused, a presumption certainly not weakened by the fact that he has been
acquitted at his trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate Court in disturbing a finding of
fact arrived at by a Judge who had the advantage of seeing the witnesses."
The approach has been endorsed by this Court repeatedly, and in a very recent
decision, Ganesh Bhavan Patel & Anr. v. State of Maharashtra to which one
of us (Sarkaria, J.) was party, it was also observed:
"Where two reasonable conclusions can be
drawn on the evidence on record, the High Court should as a matter of judicial
caution, refrain from interfering with the order of acquittal recorded by the
Court below. In other words, if the main grounds on which the Court below has
based its order acquitting the accused, are reasonable and plausible, and
cannot be entirely and effectively dislodged or demolished, the High Court
should not disturb the acquittal." 515 The legal position is well settled
and, indeed, has been adverted to by the High Court. But after specifically
referring to it the High Court appears to have overlooked the limitations
imposed on it and has embarked on a course not warranted by law. It has taken
into particular regard a few considerations which seemed to it to assume importance.
It has referred to the recovery of a
bloodstained slipper and a diary from the scene of the offence, and has
inferred that they belong to Ajit Singh. We are not satisfied that the
connection has been truly established. The papers found in the diary do not
necessarily show that the diary belongs to him. Nor is there sufficient proof
that the slipper is his. The High Court has concentrated on some of the
material only, omitting to consider in the process that the integrality of the
evidence alone can ensure whether the accused are guilty. We are satisfied that
the High Court erred in interfering with the judgment of the trial court.
The appeal must, therefore, be allowed, the
judgment and order of the High Court set aside and the judgment and order of the
trial court restored.
These are the reasons which persuaded us to
make the order disposing of the appeal.
N.V.K. Appeal allowed.
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