REPORTABLE IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 429 OF 2002  

Champaben Govindbhai ....Appellant(s)

- Versus -

Popatbhai Manilal and others ....Respondent(s)

J U D G M E N T

GANGULY, J.

1. This is an appeal by the complainant against the  

judgment and order of acquittal by the High Court  

of Gujarat in Criminal Appeal No. 933/2000 which  

upheld the order of acquittal of all the accused  

by  the  Principal  Judge,  City  Civil  Court,  

Ahmedabad in Sessions Case No. 274/99.

2. The  deceased,  Arunbhai  and  Popatbhai  Manilal,  

Jayantibhai Manilal and Ishwarbhai Manilal were  1

residents of Bapalal Ghanchi’s Chawl, Chamanpura,  

Ahmedabad.  Champaben  Govindbhai  Patni,  the  

complainant,  the  mother  of  the  deceased,  was  

married to Govindbhai, who was at the material  

time working in Mumbai. They have three sons and  

three daughters, the deceased Arunbhai, being the  

eldest of the sons.  The deceased, a rickshaw-

puller by profession, was married 10 years back  

to Madhuben.  She is the daughter of Chamanbhai  

Popatbhai, the uncle of the accused persons.  But  

at  the  time  of  the  incident  Madhuben  was  not  

staying in the family of the deceased.  

3.     The  case  of  the  prosecution  is  that  on  

18.6.1999, around 9.00 p.m., the deceased Arun  

was  sleeping  on  a  cot  on  the  Otla  (extended  

balcony) of the house after his supper. Accused  

No. 1, Popat was walking past by him when the leg  

of the deceased, which was dangling from the cot,  

touched him.  At that the Accused no. 1 started  

abusing the deceased to which he protested and a  

scuffle ensued and in the process they reached  

the entrance of the  chawl. The complainant, who  

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was inside the house heard the noise and came out  

to see that the two were quarrelling. So she told  

her  son  not  to  quarrel  and  took  him  aside.  

Accused No. 1 Popat went to his house.  After  

sometime, all the three accused came to the place  

of occurrence, armed with weapons. Accused No. 1  

had a  gupti (a long double edged knife) in his  

hand; Accused No. 2 Jayanti was armed with a pipe  

while  the  Accused  No.  3  Ishwar  was  holding  a  

Dhoka (a wooden log, used for cleaning clothes).  

At  that  time,  the  deceased  Arun  was  standing  

along  with  his  sister  Meghna  (PW  4)  and  the  

Accused No. 1 caught hold of her. The deceased  

told him to let his sister go as the quarrel was  

between the two of them. At that point of time,  

the Accused No.1 hit the deceased with the gupti,  

first on the chest and then on the stomach. The  

Accused No. 2 hit the deceased on the chest with  

the  pipe  and  Accused  No.  3  hit  him  with  the  

dhoka. The deceased thus received several blows  

all over the body. Vijay Patni (PW 5), the nephew  

of the complainant who had been living with them  

at the point of time, came to the scene and tried  

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to intervene but was hit on the head by Accused  

No. 2. The deceased fell on the ground in front  

of his house thereupon all the three accused ran  

away from the place. The deceased was taken to  

the hospital by Champaben, her husband’s sister  

Dadamben  and  her  nephew,  Vijay  where  he  was  

examined  and  declared  dead.  A  post-mortem  

examination  was  conducted,  after  which  the  

complainant  brought  the  dead  body  home.  The  

police came to her house and her complaint was  

recorded.

4.     The said complaint was recorded by P.I. Shri  

Pratapsinh Udhesinh Ravol (PW12) of Meghaninagar  

Police Station on 19.6.99. The complaint (Ex. 50)  

and the Report (Ex. 51) were sent to the police  

station  to  register  the  offence.  PW  12  also  

recorded the statements of PW 4 and PW 5 on the  

same  date.  He  also  recorded  statements  of  the  

relatives of the deceased and the other people  

present  at  the  scene  of  incident.  He  made  

panchnama  of  the  place  of  incident  and  also  

seized some pieces of bricks from there. PW 12  

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then  went  to  the  civil  hospital  where  the  

deceased  had  been  taken  and  made  inquest  

panchnama of  the  dead  body.  The  blood  stained  

clothes  and  a  sample  bottle  of  blood  of  the  

deceased  was  brought  to  the  police  station  by  

P.C. Maheshbhai Maganbhai and was seized under a  

panchnama (Ex.25).  

5. On 19.6.99, the accused persons were brought to  

the  police  station  at  1.00  a.m.  and  their  

panchnama was made. The blood stained clothes of  

the Accused No. 2 was also seized and a panchnama  

was made.  Since the police felt that there was  

enough evidence against them, the three accused  

were arrested at 2.30 a.m. on 20.6.1999 and were  

interrogated.  

6. The  day  after  their  arrest,  at  the  behest  of  

Accused No. 2, the police found the weapons of  

offence which were hidden in the  mailia  (loft).  

The police as well as Accused No. 2 went to their  

house,  broke  the  lock  and  recovered  a  wooden  

dhoka, an iron pipe and a gupti which were seized  

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and  panchnamas prepared. The seized weapons and  

clothes were sent to the FSL on 22.6.99.

7.      The accused were charged for offences under  

Section 302 read with Section 34 of the Indian  

Penal Code (referred to as IPC herein after) and  

in the alternative, under Sections 302 read with  

Section 114 of the IPC. In addition, Accused No.  

2  Vijaybhai  was  also  tried  for  an  offence  

punishable under Section 324 of the IPC while the  

rest were tried for the said offence punishable  

under Section 114 of the IPC. Charges were also  

brought  against  each  of  them  for  offences  

punishable under Section 135 (1) of the Bombay  

Police Act 1951. After trial, the accused were  

acquitted  by  the  Court  of  the  Learned  City  

Sessions  Judge,  Ahmedabad  vide  judgment  dated  

7.8.2000.   It  may  be  mentioned  that  a  cross-

complaint  was  filed  by  the  accused  persons  

registered  at  1:25  a.m  on  19.6./20.6.1999  

alleging that the accused No.1 was injured during  

the incident.

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8.     The State preferred an appeal against the  

acquittal  before  the  High  Court  of  Gujarat  at  

Ahmedabad. The contention of the State was that  

there was enough evidence for conviction of the  

accused persons and the Trial Court ought to have  

believed the case of the prosecution on the basis  

of  the  evidence  of  the  star  witness  Champaben  

which was supported by other two eye-witnesses,  

namely Vijay   (PW 5) and Meghnaben (PW 4). The  

High Court however dismissed the appeal by the  

impugned judgment dated 18.7.2001.  

9.  Hence this SLP by the complainant Champaben  

Govindbhai, the mother of the deceased. The State  

supports the complainant’s appeal.

10. It  is  well  settled  that  in  an  appeal  

against  acquittal  the  Appellate  Court  does  not  

reverse the finding of acquittal if the Court while  

granting  acquittal  has  taken  a  reasonable  or  a  

possible  view  on  the  evidence  and  materials  on  

record.  Law is equally well settled that if the  

view  taken  by  the  Court  granting  acquittal  is  

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perverse  or  shocks  the  conscience  of  the  higher  

Court, the finding of acquittal can be reversed.  

In the instant case, the High Court as the First  

Appellate Court has a duty to consider in detail  

the material on record and also should appreciate  

the evidence very carefully before affirming the  

order of acquittal given by the trial Court.

11. The counsel for the respondents referred  

to the decision of this Court in  Chandrappa and  others Vs. State of Karnataka - (2007) 4 SCC 415,  to put forward the argument that an appellate court  

must bear in mind that in case of acquittal, there  

is a double presumption in favour of the accused.  

Firstly, the presumption of innocence is available  

to him under the fundamental principle of criminal  

jurisprudence that every person shall be presumed  

to be innocent unless he is proved guilty by a  

competent  court  of  law.  Secondly, the  accused  

having  been  acquitted,  the  presumption  of  his  

innocence  is  further  reinforced,  reaffirmed  and  

strengthened by the trial court. In this connection  

we  may  refer  to  the  principles  summarized  in  

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paragraph 42 at page 432 of the judgment and they  

are extracted:-

“42. ....(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.

(3)  Various  expressions,  such  as,  “substantial and compelling reasons”,  “good  and  sufficient  grounds”,  “very  strong  circumstances”,  “distorted  conclusions”, “glaring mistakes”, etc.  are not intended to curtail extensive  powers  of  an  appellate  court  in  an  appeal  against  acquittal.  Such  phraseologies are more in the nature  of  “flourishes  of  language”  to  emphasise  the  reluctance  of  an  appellate  court  to  interfere  with  acquittal than to curtail the power of  the court to review the evidence and  to come to its own conclusion.

(4)  An  appellate  court,  however,  must  bear  in  mind  that  in  case  of  acquittal, there is double presumption  in favour of the accused. Firstly, the  presumption of innocence is available  to him under the fundamental principle  of  criminal  jurisprudence  that  every  person  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.

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(5)  If  two  reasonable  conclusions  are  possible  on  the  basis  of  the  evidence  on  record,  the  appellate  court should not disturb the finding  of  acquittal  recorded  by  the  trial  court.”

12. Also, if two reasonable views are possible  

on the basis of the evidence on record and one  

favourable to the accused has been taken by the  

trial court it ought not to be disturbed by the  

appellate court (Para 44).  Reference was also made  

to the case of Bhagwan Singh and others Vs. State  of M.P. - (2003) 3 SCC 21,   where this Court had  held that in an appeal against acquittal, the High  

Court is competent to reappreciate the evidence to  

find out whether the trial judge has misappreciated  

any part of the evidence or not. If the evidence  

has been properly appreciated and conclusions drawn  

from them are reasonable in that case reversal of  

the  finding  of  acquittal  is  not  warranted  (Para  

35).  

13. The  counsel  for  the  petitioners  on  the  

other hand cited the case of  Mahtab Singh & Anr.  Vs. State of U.P. - JT 2009 (5) SC 431 [at Page.  

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437, Para. 16-18] which reiterated the following  view of the SC laid down in Kalyan Singh Vs. State  of M.P. - (2006) 13 SCC 303, wherein it has been  held “It is now well known that if two views are  

possible, the appellate court shall not ordinarily  

interfere  with  the  judgment  of  acquittal.  We  do  

not, however mean to lay down the law that the High  

Court, in a case where a judgment of acquittal is  

in question, would not go into the evidence brought  

on record by the prosecution or by the State but we  

would like to point out that even if the High Court  

reversed the judgment of acquittal recorded by the  

trial court, it is incumbent on the High Court to  

arrive  at  the  conclusion  that  no  two  views  are  

possible.” (Para 16, page 437)

14. In  dealing  with  the  question  of  appeal  

against acquittal, a very balanced view has been  

struck  by  a  three-Judge  Bench  of  this  court  in  

Shivaji Sahabrao Bobade and another Vs.  State of  Maharashtra – (1973) 2 SCC 793.  In paragraph 6,  page  799  of  the  report,  Justice  Krishna  Iyer,  

speaking for the Bench, observed:-

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“6. ....  The  dangers  of  exaggerated  devotion to the rule of benefit of doubt  at the expense of social defence and to  the soothing sentiment that all acquittals  are always good regardless of justice to  the  victim  and  the  community,  demand  especial  emphasis  in  the  contemporary  context  of  escalating  crime  and  escape.  The  judicial  instrument  has  a  public  accountability.  The  cherished  principles  or  golden  thread  of  proof  beyond  reasonable doubt which runs thro’ the web  of  our  law  should  not  be  stretched  morbidly to embrace every hunch, hesitancy  and  degree  of  doubt.  The  excessive  solicitude reflected in the attitude that  a  thousand  guilty  men  may  go  but  one  innocent  martyr  shall  not  suffer  is  a  false  dilemma.  Only  reasonable  doubts  belong  to  the  accused.  Otherwise  any  practical  system  of  justice  will  then  break down and lose credibility with the  community. The evil of acquitting a guilty  person light heartedly as a learned author  has sapiently observed, goes much beyond  the  simple  fact  that  just  one  guilty  person has gone unpunished. If unmerited  acquittals  become  general,  they  tend  to  lead to a cynical disregard of the law,  and this in turn leads to a public demand  for  harsher  legal  presumptions  against  indicted  ‘persons’  and  more  severe  punishment of those who are found guilty.  Thus,  too  frequent  acquittals  of  the  guilty may lead to a ferocious penal law,  eventually eroding the judicial protection  of the guiltless. For all these reasons it  is true to say, with Viscount Simon, that  “a miscarriage of justice may arise from  the acquittal of the guilty no less than  from the conviction of the innocent .…” In  short, our jurisprudential enthusiasm for  presumed  innocence  must  be  moderated  by  the  pragmatic  need  to  make  criminal  justice potent and realistic.”  

15. This  Court  finds  that  unfortunately  the  

High Court in this case acted in a very casual  

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manner and has reached certain findings which are  

perverse.   The  High  Court  has  held  “medical  

evidence does not disclose that injuries caused on  

the person of Arun (deceased) were sufficient in  

ordinary course of nature to cause death.”  The  

aforesaid  finding  is  totally  contrary  to  the  

record,  if  one  looks  at  the  evidence  of  Dr.  

Yogeshbhai Jadav, Medical Officer, Civil Hospital,  

Ahmedabad, who did the post-mortem examination on  

deceased  Arun.   Dr.  Jadav  found  the  following  

injuries on the external part of the body:-

(1) 2.5 x 1 cm vertical stab wound on  left side of chest to midline end. 2  cm inferior to nipple plane margins of  wound are out sharply and inverted.

(2) 2  x  1  x  1  cm  incised  wound  on  medical  and  superior  of  Rt.  elbow  directed downward positively.

(3) 4  x  m  11  near  incised  wound  limited  to  skin  on  Rt.  lower  chest  lateral aspect directed downward.

(4) 2.5 c.m. transverse linear incised  wound limited to skin on lateral end  lower abdomen.

(5) 1  x  1  cm  contusion  abrasion  on  lateral and upper part of left lip 4  cm inferior to injury no.4.

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(6)…  x  1  cm  transverse  contusion  abrasion posterial to injury no5.

Other  injury  which  were  found  because of investigation of touch, if  any.

Fracture  of  left  4th and  5th  sternochondral area of ribs.

16. On internal examination, the doctor opined  

on the chest “injury goes deeply posterior upwards  

and laterally in a way.  It cuts skin, tissue,  

sterno, chondral area of left 4th and 5th ribs along  

with fractures, inter costal muscles, pericardium,  

medical border of it. Verticle, it measures 2 cm  

then pieres through and through on posterial wall  

it measures 1 cm then ultimately ends at lower lobe  

upper part of left lung it measures 0.5 x 05 cm and  

causing – Hemo Pericardium and Hemotharax in left  

Thoaraic cavity.  Blood and clots found about 1800  

ml."  The doctor clearly opined that the cause of  

death is shock and hemorrhage due to stab injury on  

the chest.  By characterizing these injuries as not  

sufficient in the ordinary course to cause death,  

the High Court, with respect, fell into a grave  

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error and its appreciation of evidence borders on  

perversity.    

17. In our view this is a glaring infirmity in  

the judgment of the High Court.  The other reason  

given  by  High  Court  in  affirming  the  order  of  

acquittal is that only interested persons are the  

witnesses  and  no  independent  witness  has  been  

examined.  The other reason given by the High Court  

to support the judgment of acquittal of the Trial  

Court is that much time has elapsed between the  

occurrence and filing of a complaint.  The High  

Court has also come to the finding that the blood  

stained clothes, weapons were not examined and this  

has  created  a  doubt  about  the  veracity  of  the  

prosecution case.

18. It has been repeatedly pointed out by this  

Court that just as the witnesses are related to the  

deceased  that  is  no  ground  to  discard  their  

evidence.  In the instant case, there are three  

eye-witnesses  and  one  of  them  is  an  injured  

witness.  Their evidence cannot be discarded just  

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on  the  ground  that  they  are  related  to  the  

deceased.  It is settled law if the evidence of the  

witnesses, who are related, is credible and cogent,  

the fact that they are related is not a ground for  

discarding such evidence.  This Court has held that  

related witness do not normally spare the guilty  

and implicate innocent persons.   

19. About the delay of lodging the FIR, this  

Court finds that immediately after the occurrence  

the  deceased  was  taken  to  the  hospital  by  the  

complainant and other relations where the deceased  

was declared dead.  One G.D was entered by 11:05 on  

the same night which was just after a gap of about  

2  hours.   Therefore  considering  normal  human  

conduct, this delay of about 2 hours between the  

occurrence and lodging of the complaint is not a  

factor for discrediting the prosecution case.  A  

finding of acquittal on the ground of this delay is  

not  a  reasonable  exercise  of  jurisdiction  by  an  

Appellate Court.  

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20. It also appears from the record that the  

weapons of offence were examined to find out that  

they had stains of human blood, in group ‘B’.   

21. Therefore considering all these facts and  

circumstances  of  this  case,  this  Court  is  

constrained to hold that the High Court did not  

exercise  its  jurisdiction  properly  under  Section  

378 of the Criminal Procedure Code in appreciating  

the material on record while approving the order of  

acquittal of the trial court.   

22. Therefore,  the  High  Court’s  judgment  of  

acquittal cannot be sustained and is set-aside.   

23. The High Court will now hear the State’s  

appeal afresh.  

24. We expect, having regard to the passage of  

time, High Court will try its best to dispose of  

the State’s appeal as expeditiously as possible.   

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25. The High Court will not feel bound by any  

observation made in the judgment.  The observations  

which have been made here are for the purpose of  

disposing of the present appeal.  The High Court is  

at liberty to apply its mind to the evidence and  

materials  available  on  record  and  come  to  its  

independent finding.  The appeal is, thus, allowed.  

...................J. (D.K. JAIN)

...................J. New Delhi (ASOK KUMAR GANGULY) July 31, 2009

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