http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 1 of 6  

PETITIONER: AJITSINGH THAKURSINGH & ANR.

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT09/01/1981

BENCH: PATHAK, R.S. BENCH: 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 alongwith 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,

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 2 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 3 of 6  

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]

JUDGMENT:      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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 4 of 6  

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

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 5 of 6  

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."

http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 6 of 6  

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. 516