REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.      405          OF 2009 (Arising out of SLP (Crl.) No. 1524 of 2008)

Lunaram   ...Appellant

Versus

Bhupat Singh and Ors. ...Respondents

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Leave granted.

2. Challenge in this appeal is to the order passed by a learned Division

Bench of  the Rajasthan High Court  at  Jodhpur  directing  acquittal  of  the

respondents 1, 2 and 3. The learned Special Judge, SC and ST, Prevention

of Atrocities Case, Balotara had convicted the respondents and sentenced

them which was set aside by the High Court as noted above.

3. Background facts in a nutshell are as follows:

Complainant Luna Ram lodged an FIR in Police station, Bakhasar at

about  8.30  a.m.  On  31.08.1998,  complainant  reported  that  almost  two

months back he alongwith Sugala, Tila and Lila went to Dhanera, Gujarat,

for a job. On 30.08.1998, they came to Sanchore in a Jeep and, thereafter, by

another  Jeep,  they  went  to  village  Madhav.  At  around  7.15  P.M.,  they

boarded a Bus from Village Madhav and reached  Sata at around 9.30 P.M.

From Sata, accused Bhupat Singh, Amrit @ Amiya, Ganu Singh @ Ganpat

Singh, Pratap Singh and Kamiya boarded the bus. After just leaving village

Sata, Bhupat  Singh,  Rai Singh, Pratap Singh and Ganu Singh came near

their seat, as they all four were sitting on the last seat of the bus. Rai Singh

stated that they will kill all the four. Bhupat Singh caught Lila by holding

his neck and, thereafter, Rai Singh, Pratap Singh and Ganu Singh threw Lila

out of bus. Complainant hid himself out of fear. Thereafter, Sugala and Tila

were also thrown out of bus as when he left the bus at village Bakhasar,

Sugala  and  Tila  were  not  found  in  the  bus.  The  reason  of  fight  by  the

accused  was  also  stated  to  be  that  almost  10-15  days  back,  buffaloes

belonging to Pratap Singh and Ganu Singh damaged crop of Nagji and, at

that  time,  when  Ladha  was  taking  those  buffaloes,  then  Rai  Singh  had

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beaten Ladha. The complainant further stated that he reached his place at

about  12  to  1  O’clock  in  night  and  stated  all  those  facts  to  Nagji  and

following morning,  it  was found that  Lila died,  whereas  Tila and Sugala

received injuries. On the basis of the report, FIR was lodged under Sections

302, 307 and 352, 323 read with Section 34 of the Indian Penal Code, 1860

(in  short  the  ‘IPC’)  and  Section  3(2)(5)  of  the  Scheduled  Castes  and

Scheduled  Tribes  (Prevention  of  Atrocities)  Act  (in  short  ‘SC/ST Act’).

The Police, thereafter, conducted investigation and, thereafter, filed challan

in the Court of Chief Judicial Magistrate, Barmer, from where, the matter

was committed to the trial Court. Charges were framed against four accused

under Sections 302, 307, 323 read with Section 34 of IPC and Section 3(2)

(5)  of  SC/ST.  The charge  was read  over  to  the  accused  who denied  the

charge and claimed trial.

At  the trial,  27  witnesses  were  produced  and  thirty-six  documents

were exhibited by the prosecution to prove their case, whereas, in defence,

statement of one witness was recorded and eight documents were produced.

Statements of the accused were recoded under Section 313 of the Code of

Criminal Procedure Code, 1973 (in short the ‘Code’).  

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The learned trial Court convicted accused Bhupat Singh, Ral Singh

and Amiya under Section 302/34 of IPC and Section 3(2)(5) of SC/ST Act.

They were  sentenced  to  life  imprisonment  and  fine  of  Rs.500/-  each,  in

default  of  payment  of  fine,  to  further  suffer  one  month’s  imprisonment.

They were  also  convicted  under  Section  323 IPC,  and  sentenced  to  one

month’s imprisonment and a fine of Rs.50/- each, in default of payment of

fine,  to  further  suffer  one  week  imprisonment.   These  accused  were,

however,  acquitted from Section 307 read with Section 34 IPC. Accused

Dashrath Giri @ Baba was acquitted completely.

The High Court noted that the evidence of PWs 9, 10 and 11 did not

have  any  credibility.  It  was  full  of  omissions  and  contradictions  which

affected the credibility of their evidence. Contradictions and omissions were

held to be not of any minor nature.

4. In support of the appeal, learned counsel for the appellant submitted

that the evidence of PWs 9, 10 and 11 should not have been discarded by

the High Court, particularly as they were injured eye witnesses.  

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5. Learned  counsel  for  the  accused  on  the  other  hand  supported  the

judgment, particularly with reference to the evidence of doctor who stated

that  the  scenario  as  described  by  the  prosecution  witnesses  was  not

physically and practically possible.

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  where  the  accused  has  been  acquitted,  for  the  purpose  of

ascertaining as to whether any of the accused really committed any offence

or  not.  (See  Bhagwan  Singh v.  State  of  M.P,  2003  (3)  SCC  21).  The

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principle  to  be  followed  by  the  appellate  court  considering  the  appeal

against  the  judgment  of  acquittal  is  to  interfere  only  when  there  are

substantial  reasons  for  doing  so.  If  the  impugned  judgment  is  clearly

unreasonable  and  irrelevant  and  convincing  materials  have  been

unjustifiably  eliminated  in  the  process,  it  is  a  substantial  reason  for

interference.  These  aspects  were  highlighted  by  this  Court  in  Shivaji

Sahabrao  Bobade v.  State  of  Maharashtra (1973  (2)  SCC 793),  Ramesh

Babulal  Doshi  v.  State of Gujarat (1996 (9) SCC 225),  Jaswant Singh v.

State of Haryana (2000 (4) SCC 484),  Raj Kishore Jha v.  State of Bihar

(2003 (11)  SCC 519),  State of Punjab v.  Karnail  Singh (2003 (11)  SCC

271),  State of Punjab v.  Phola Singh (2003 (11) SCC 58),  Suchand Pal v.

Phani Pal (2003 (11) SCC 527) and  Sachchey Lal Tiwari v.  State of U.P.

(2004 (11) SCC 410).

7. In Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC 415),

the  following  general  principles  regarding  powers  of  the  appellate  court

while dealing with an appeal against an order of acquittal were culled out:

(1)  An appellate court has full  power to review, reappreciate

and  reconsider  the  evidence  upon  which  the  order  of  acquittal  is

founded.

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(2) The  Code  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.

8. The High Court has noted that the prosecution version was not clearly

believable.  Some of the so called eye witnesses stated that the deceased

died because his ankle was twisted by an accused. Others said that he was

strangulated. It was the case of the prosecution that the injured witnesses

were thrown out of the bus. The doctor who conducted the post mortem and

examined the witnesses had categorically stated that it was not possible that

somebody would  throw a person out  of  the bus  when it  was  in  running

condition.  Considering  the  parameters  of  appeal  against  the  judgment  of

acquittal,  we are not inclined to interfere in this appeal. The view of the

High Court cannot be termed to be perverse and is a possible view on the

evidence.

9. The appeal is dismissed.    

…….……………………….J. (Dr. ARIJIT PASAYAT)

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…..………………………….J. (ASOK KUMAR GANGULY)

New Delhi, February 27, 2009   

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