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PETITIONER: TOTA SINGH & ANR.

       Vs.

RESPONDENT: STATE OF PUNJAB

DATE OF JUDGMENT01/04/1987

BENCH: ERADI, V. BALAKRISHNA (J) BENCH: ERADI, V. BALAKRISHNA (J) SEN, A.P. (J)

CITATION:  1987 AIR 1083            1987 SCR  (2) 747  1987 SCC  (2) 529        JT 1987 (2)    20  1987 SCALE  (1)657

ACT:     Criminal  Procedure Code, 1973. ss. 378 and  386--Appeal against   order  of  acquittal--Interference  by   appellate court--Jurisdiction  of-No interference unless  approach  of trial court vitiated by some manifest illegality.

HEADNOTE:     The  appellants were tried by the Court of  Sessions  on charges  under section 302 IPC read with section 34 IPC  and section  323 IPC read with section 34 IPC, and the  Sessions Judge  acquitted  the appellants or’ all  the  charges  laid against  them on the grounds: (i) that there was  no  proper explanation for the inordinate delay in reporting the  crime to the police; (ii) that there was also no adequate proof of any motive; (iii) that it was not a pre-planned attack;  and (iv) that the testimony of P.W. 2 and P.W. 6 who were  exam- ined as eye-witnesses to prove the occurrence, could not  be safely  accepted and acted upon as true. In the absence  or’ any  independent  corroboration or’ the testimony  given  by them,  since  they had also been  appearing  as  prosecution witnesses in a large number of police cases.     The  High Court, however, in appeal by  the  respondent- State  made an independent reappraisal of the  evidence  and set  aside  the acquittal, merely on the ground  that  as  a result  of  such reappreciation it was inclined to  reach  a conclusion  different from the one recorded by the  Sessions Judge. Allowing the appeal by the appellants, this Court,     HELD:  1. The approach made by the High Court to a  con- sideration  of the appeal was wholly vitiated by a  manifest illegality  inasmuch  as the High Court has acted  in  total disregard  of  the principles repeatedly laid  down  by  the Supreme  Court delineating the restricted grounds  on  which alone interference may be made by a court of appeal with  an order of acquittal passed by a lower Court. [751D]     The  High Court in the instant case, has not found  that the  reasons given by the Sessions Judge for discarding  the testimony of P.W. 2 and 748 P.W. 6 were either unreasonable or perverse. [751B]     2.1  The mere fact that the Appellate Court is  inclined

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on  a reappreciation of the evidence to reach  a  conclusion which  is at variance with the one recorded in the order  of acquittal  passed by the Court below will not  constitute  a valid and sufficient ground for setting aside the acquittal. [751C]     2.2  The jurisdiction of the Appellate Court in  dealing with  an  appeal against an order of  acquittal  is  circum- scribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by  the lower Court to the consideration of the evidence in the case is  vitiated by some manifest illegality or  the  conclusion recorded  by  the Court below is such which could  not  have been possibly arrived at by any court acting reasonably  and judiciously and is, therefore, liable to be characterised as perverse. [751D-E]     3.  Where two views are possible on an appraisal of  the evidence adduced in the case and the Court below has taken a view  which is a plausible one, the Appellate  Court  cannot legally  interfere with an order of acquittal even if it  is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous. [751E]

JUDGMENT:     CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 225 of 1978.     From  the  Judgment  and order dated  19.4.1978  of  the Punjab and Haryana High Court in Criminal Appeal No. 1106 of 1974.     A.N. Mulla, Mrs. Pravawati, Mrs. Urmila Kapur and Ms. S. Janani for the Appellants. R.S. Sodhi for the Respondent. The Judgment of the Court was delivered by     BALAKRISHNA ERADI, J. After hearing Shri A.N. Mulla, Sr. Advocate for appellants and Shri R.S. Sodhi, Counsel appear- ing  on behalf of the respondent and having carefully  exam- ined all aspects of the case in the light of the submissions made at the Bar, we have unhesitatingly come to the  conclu- sion that this appeal has to be allowed. 749     The four appellants before us--Tota Singh, Dauli  Singh, Mithu  Singh and Mukhtiar Singh were tried by the  Court  of Sessions,  Faridkot  on charges under Section 302  IPC  read with Section 34 IPC and Section 323 IPC read with Section 34 IPC.  After  detailed consideration of the  entire  evidence adduced  in  the  case, the learned Sessions  Judge  by  his judgment dated May 30, 1974 acquitted the appellants of  all the charges laid against them. Against the said decision  of the  Sessions Judge, the State of Punjab preferred  Criminal Appeal  No.  1106 of 1974 in the High Court  of  Punjab  and Haryana. A Division Bench of the High Court by its  judgment dated  April 9, 1978 allowed the State’s appeal,  set  aside the  order  of the Sessions acquitting  the  appellants  and convicted  the  appellants under Section 302 IPC  read  with Section  34 IPC as well as under Section 323 1PC  read  with Section  34 IPC. On the first count all the appellants  were sentenced  to undergo rigorous imprisonment for life and  on the  second  account they were ordered to  undergo  rigorous imprisonment for one year each with a further direction that the  substantive sentence of imprisonment in respect of  all the appellants shall run concurrently.     We do not propose to set out in extenso the facts of the case  nor  to  discuss in detail the  oral  and  documentary evidence  adduced.  We say this for the reason that  we  are

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fully satisfied that the approach made by the High Court  to a  consideration  of  the appeal was wholly  vitiated  by  a manifest illegality inasmuch as the High Court has acted  in total  disregard of the principles repeatedly laid  down  by this Court delineating the restricted grounds on which alone interference may be made by a Court of appeal with an  order of acquittal passed by a lower Court.     The occurrence that led to the prosecution took place on July  19, 1973 at about 4 P.M. in village Bishmandi,  Police Station Jaitu in District Faridkot. The case of the prosecu- tion is that the deceased Gurdev Singh accompained by  Ajmer Singh  P.W.  2 and Malkiat Singh P.W. 6 was going  from  the house  of  the Ajmer Singh to the house of the  deceased  on that  fateful day. While they were approaching the house  of one  Moda  Singh Jat, the four appellants,  all  carrying  a gandasa each, suddenly besieged them from behind the  Cheli- anwali Street raising a "lalkara" proclaiming that they were going  to  take their revenge for outraging the  modesty  of Malkiat Kaur and they attacked the deacased as well as Ajmer Singh and Malkiat Singh by inflicting gandasa blows on them. It  was  alleged that this was a  preplanned  and  concerted attack made by the appellants as a reappraisal for an  inci- dent of alleged rape of one Malkiagt Kaur by Ajmer Singh 750 (P.W.  2),  Gurdev Singh (deceased) is said to  have  fallen down  on the spot as a result of the blows inflicted on  him and P.Ws. 2 and 6 are said to have suffered simple  injuries due to the attack with gandasa. According to the prosecution version  on hearing the cries for help raised by P.W. 2  and P.W. 6, Kaur Singh, son of deceased Gurdev Singh came to the place  of occurrence and thereupon all the  four  appellants ran away from the spot leaving P.W. 6 near Gurdev Singh, who was  lying on the ground in an injured condition. P.W. 2  is said  to  have  gone to the Sarpanch and the  Panch  of  the village and informed them about the incident. Thereafter  he returned  to the scene of occurrence and himself along  with P.W.  6 are said to have put Gurdev Singh on a bullock  cart and got him admitted in the injured condition in the  hospi- tal.  P.W.2 and P.W.6 were also admitted in the same  hospi- tal. Gurdev Singh was subsequently transferred to the Chris- tan  Medical College at Ludhiana, where he succumbed to  his injuries on July 30, 1973.     The  learned Sessions Judge after a careful analysis  of all the facts and circumstances as disclosed by the evidence adduced in the case came to the conclusion that the testimo- ny  of Ajmer Singh P.W. 2 and Malkiat Singh P.W. 6 who  were examined  by  the prosecution as eyewitnesses to  prove  the occurrence  could not be safely accepted and acted  upon  as true.  The trial Judge set out in his judgment detailed  and cogent  grounds for arriving at the said conclusion. In  his opinion  there was no proper explanation for the  inordinate delay  in  reporting the crime to the police and  there  was also  no adequate proof of any motive. The learned  Sessions Judge  rejected  the  theory put  forward  by  the  prosecu- tion’that it was a pre-planned attack made by the appellants with  a  view to avenge the alleged molestation  of  Malkiat Kaur by Ajmer Singh P.W. 2 by pointing out that if such  had been really the case, the target of attack by the appellants would  have  been Ajmer Singh to whom only  simple  injuries were caused and not Gurdev Singh who had nothing to do  with the  alleged incident of molestation. The  learned  Sessions Judge  was inclined to accept the defence version  that  the appellants  being ’siris’ had some trouble with P.W.  2  and P.W.  6  about the apportionment of ’batai’ and  this  might have  led  to their false implication in the  case.  In  the

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absence  of any independent corroboration of  the  testimony given by the two alleged eye-witnesses (P.W. 2 and P.W.  6), the learned Sessions Judge who had seen them giving evidence in  the  box was not impressed by their  evidence  specially having regard to the fact that both of them had been appear- ing  as  prosecution witnesses in a large number  of  police cases. The testimony of P.W. 2 and P.W. 6 having been  found to be not worthy of belief, the 751 learned Sessions Judge acquitted the appellants on both  the charges levelled against them.     The  High Court has not found in its judgment  that  the reasons  given by the learned Sessions Judge for  discarding the testimony of P.W. 2 and P.W. 6 were either  unreasonable or  perverse.  What the High Court has done is  to  make  an independent  reappraisal of the evidence on its own  and  to set  aside  the  acquittal merely on the ground  that  as  a result  of such reappreciation, the High Court was  inclined to reach a conclusion different from the one recorded by the learned  Sessions Judge. This Court has  repeatedly  pointed out that the mere fact that the Appellate Court is  inclined on  a reappreciation of the evidence to reach  a  conclusion which  is at variance with the one recorded in the order  of acquittal  passed by the Court below will not  constitute  a valid and sufficient ground for setting aside the acquittal. The  jurisdiction of the Appellate Court in dealing with  an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court  to the consideration of the evidence in the case is vitiated by some  manifest illegality or the conclusion recorded by  the Court  below  is  such which could not  have  been  possibly arrived  at by any Court acting reasonably  and  judiciously and  is, therefore, liable to be characterised as  perverse. Where two views are possible on an appraisal of the evidence adduced  in  the case and the Court below has taken  a  view which is a plausible one, the Appellate Court cannot legally interfere  with  an  order of acquittal even it  is  of  the opinion  that the view taken by the Court below on its  con- sideration of the evidence is erroneous.     Tested in the light of the above principles, it must  be held  that the interference made in the present case by  the High Court with the order of acquittal passed by the learned Sessions Judge was wholly unwarranted. We accordingly, allow this  appeal, set aside the judgment of the High  Court  and restore the judgment and order of the learned Sessions Judge acquitting the appellants of all the charges framed  against them. M.L.A.                                                Appeal allowed. 752