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CASE NO.: Appeal (crl.) 1285  of  1998

PETITIONER: ALLARAKHA K. MANSURI

       Vs.

RESPONDENT: STATE OF GUJARAT

DATE OF JUDGMENT:       14/02/2002

BENCH: R.P. Sethi & K.G. Balakrishnan

JUDGMENT:

SETHI,J.

       The appellant was charged for the offences punishable under Sections 302 and 504 rea d with Section 114 of the Indian Penal Code in Sessions Case No.57 of 1989 and after trial w as acquitted by the learned Sessions Judge on 11.9.1990.  The appeal filed against the judgm ent of acquittal was allowed by the High Court vide judgment impugned in this appeal holding  the appellant guilty for the commission of offence punishable under Section 302 of the Indi an Penal Code and sentencing him to undergo rigorous imprisonment for life and to pay a fine  of Rs.5,000/-  In default of payment of fine, the appellant has to undergo further rigorous  imprisonment for three years.         The facts of the case are that on 27th March, 1989 at about 7.30 p.m., the appellant  along with Ramji Khamisa Mansuri went to the Tea Stall of the deceased armed with Dharia.   He inflicted four blows to the deceased with that Dharia, as a result of which deceased Abdu l Karim Ali Mohamed sustained serious injuries on head and other portions of his body.  He w as shifted to the Hospital but he succumbed to the injuries.  At about 7.45 p.m. a message w as received at Police Station Bhachau from the Medical Hospital stating that Abdul Karim Ali  Mohamed who has been brought to the Hospital had sustained serious injuries and was being s hifted to Bhuj Civil Hospital.  The intimation was recorded as Crime Entry No.20 of 1989 in  the Police Station diary.  Thereafter the statement of Ali Mohmed was recorded in the police  station and the FIR registered which was marked as Exhibit 30.  On completion of the invest igation, charge sheet was filed against the accused persons.  The prosecution examined 10 wi tnesses. Ali Mohdmed Husein (PW4), complainant, Rajesh Velji (PW5), Shashikant (PW6) and Mam udo @ Abdulla (PW9)were cited eye-witnesses.  As Rajesh Velji (PW5) did not fully support th e case of the prosecution, he was declared hostile.      The trial court discarded the testi mony of the eye-witnesses and acquitted the accused.  It appears that the trial court mainly  relied upon the following aspects for acquitting the accused persons:

"i)     That Exh.36, entry No.20/1989 in the police station diary which came to be recorded  on the information given by the medical officer of Bhachau Hospital is the first information  report under Section 154 of the Code and not the complaint-FIR lodged by the complainant Al i Mohmed at exh.30.

ii)     That the time of death of the deceased Abdul is not established, hence, prosecution  story is doubtful.

iii)    Identity of the Muddamal articles is doubtful as the witnesses have not been shown s uch items and have not identified;

iv)     Identity of one more witness Manudo is also doubtful and in his place somebody is pl aced as Manudo in view of the evidence led by the accused persons.

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v)      The investigation carried out by the investigating officer Mr.Makwana is not truthfu l but is shaky and, therefore, it creates cloud of doubt.

vi)     Statement of some of the witnesses by the police under section 162 are recorded late  and, therefore, there was chance for manipulation.

vii)    Non-cognizable complaint lodged by A-1 and produced at exh.33 is not admissible in e vidence as it was given to the police officer-investigating officer during the course of inv estigation;

viii) the contradictions in the evidence of witnesses are also creating doubt on the veracit y of the prosecution case.

       In appeal, the High Court relied        upon the testimony of the eye-witnesses and  convicted the appellant vide impugned judgment.  The High Court held: "We have no hesitation in finding that the contradictions and the deficiencies and discrepan cies highlighted by the trial court in rejecting the evidence of 3 eye witnesses supported b y medical evidence and also F.S.L. report are in our opinion quite at micro level and some o f them are factually not correctly stated and even if they are factually correct, would not  in reality influence or affect the evidence of 3 eye witnesses and other circumstances corro borating the evidence of eye witnesses.  The trial court has committed thus serious error of  law in placing unnecessary reliance on such insignificant, unsustainable and micro level di screpancies and contradictions which as such do not affect the main core of the prosecution  story and has failed to rely on the evidence of 3 eye witnesses whose evidence has remained  unimpeachable on the main story of the prosecution that it was none else but only A-1 Allara kha who did commit murder of deceased Abdul Karim by giving him successive blows with dhaia  in a public place near the tea stall of the deceased and that too for a motive for pecuniary  gain.

The trial court has committed also serious error in giving benefit of doubt to the appellant  A-1 Allarakha.  We may mention at this stage that benefit of doubt if any arising from the  record of the case on the main story of the prosecution which is reasonable and just in the  circumstances could be given to the accused which is one of the fundamental principle of Cri minal Jurisprudence.  However, it must be strictly noted that the benefit of doubt should be  a reasonable average person and not of a person who is afraid of legal consequences.

Before we conclude, we should also like to highlight one more important aspect which also si gnificantly corroborates and supports the prosecution case and the evidence of 3 eye witness es and it is the recovery of Muddamal article No.9 dharia from A-1.  We have found while exa mining the impugned judgment that the trial court has made certain observations and has rais ed certain conjuctures that the accused in such a situation would not always carry incrimina ting dharia all the time during the period of abscondance after the incident (it may be note d that the accused persons were found from village Madi and came to be arrested and at the t ime when the crime weapon article No.9-dharia was recovered in presence of panches and the M uddamal dharia -article No.9 had human blood stains on the blade portion of it).  It is also  supported by the report of the serologist.      It is clearly found by the expert in the se rological examination that it did contain the blood stains of human blood group "B" which wa s of the deceased Abdul Karim as the clothes found from the dead body contained the same blo od group.  The panchnama prepared in this behalf is also supporting the case of the prosecut ion."

       On the basis of the evidence, the High Court found that the appellant was the prime  accused being responsible for the murder of Abdul Karil Ali Mohmed.      He gave four succes sive dharia blows on the vital organs of the deceased which resulted in his death.      The  weapon of offence, Article No.9 recovered from the appellant was stained with blood Group "B " which was the blood group of the deceased.  The statement of three eye-witnesses, namely,  Ali Mohmed Husein (PW4), Shashikant (PW6) and Mamdu @ Abdulla (PW9) proved the version of th e prosecution leading to the unerring conclusion that it was the appellant alone who had com mitted the murder of the deceased by inflicting four successive blows with the weapon of off ence- Exh.9.  The evidence of the eye-witnesses stood corroborated by medical evidence of Dr .C.M. Acharya (PW3) and Dr.N.R. Jadeja (PW2).         Learned counsel for the appellant assailed the impugned judgment on the ground that

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under Section 378 of the Code of Criminal Procedure the High Court could not disturb the fin ding of fact of the trial court even if it was of the opinion that the view taken by the tri al court was not proper.  It is submitted that where two views are possible, the one favoura ble to the accused resulting in his acquittal should be accepted and not interfered with lig htly.         The settled position of law regarding the powers to be exercised by the High Court i n an appeal against the order of acquittal is that though the High Court has full powers to  review the evidence upon which an order of acquittal is based, it will not interfere with an  order of acquittal because with the passing of an order of acquittal the presumption of inn ocence in favour of the accused is reinforced.  The High Court should be slow in disturbing  the finding of the fact arrived at by the trial court.  The golden thread which runs through  the web of administration of justice in criminal case is that if two view are possible on t he evidence adduced in the case, one pointing to the guilt of the accused and the other to h is innocence, the view which is favourable to the accused should be adopted.  In our country  it is not a jurisdictional limitation on the appeal court but a  judge made guideline of ci rcumspection.  In Shivaji Sahebrao Bobade & Anr. v. State of Maharashtra [AIR 1973 SC 2622]  this Court held: "This Court had ever since its inception considered the correct principle to be applied by t he Court in an appeal against an order of acquittal and held that the High Court has full po wers to review at large the evidence upon which the order of acquittal was founded and to re ach the conclusion that upon that evidence the order of acquittal should be reversed.  The P rivy Council in Sheo Swarup v. King Emperor 61 Ind App. 398 = (AIR 1934 P.C. 227(2), negativ ed the legal basis for the limitation which the several decisions of the High Courts had pla ced on the right of the State to appeal under Section 417 of the Code.  Lord Russel deliveri ng the judgment of the Board pointed out that there was "no indication in the Code of any li mitation or restriction on the High Court in the exercise of its powers as an appellate trib unal," that no distinction was drawn "between an appeal from an order of acquittal and an ap peal from a conviction," and that "no limitation should be placed upon that power unless it  be found expressly stated in the Code."  He further pointed out at p.404 that, "the High Cou rt should an dwill always given proper weight and consideration to such matters as (1) the v iews of the trial Judge as to the credibility of the witnesses, (2) the presumption of innoc ence 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."  In Sanwat Singh vs. State of Rajasthan (196 1) 3 SCR 12- = (AIR 1961 SC 715) after an exhaustive review of cases decided by the Privy Co uncil as well as by this Court, this Court considered the principles laid down in Sheo Swaru p’s case and held that they afforded a correct guide for the appellate court’s approach to a  case against an order of acquittal.  It was again pointed out by Das Gupta, J. delivering t he judgment of five judges in Harbans Singh v. State of Punjab (1962) suppl. 1 SCR 104 = (AI R 1962 SC 439).

"In many cases, especially the earlier ones the Court has in laying down such principles emp hasised the necessity of interference with an order of acquittal being based only on ’compel ling and substantial reasons’ and has expressed the view that unless such reasons are presen t an Appeal Court should not interfere with an order of acquittal (vide Suraj Pal Singh v. T he State, (1952 SCR 193 = (AIR 1952 SC 52) Ajmer Singh v. State of Punjab, (1953) SCR 418 =  (AIR 1953 SC 76), Puran v. State of Punjab, AIR 1953 SC, 459).  The use of the words ’compel ling reasons’ embarrassed some of the High Courts in exercising their jurisdiction in appeal s against acquittals and difficulties occasionally arose as to what this Court had meant by  the words ’compelling reasons’.  In later years the Court has often avoided emphasis on ’com pelling reasons’ but nonetheless adhered to the view expressed earlier that before interferi ng in appeal with an order of acquittal a court must examine not only questions of law and f act in all their aspects but must also closely and carefully examine the reasons which impel led the lower courts to acquit the accused and should interfere only if satisfied after such  examination that the conclusion reached by the lower court that the guilt of the person has  not been proved is unreasonable."

       The paramount consideration of the court should be to avoid miscarriage of justice.   A miscarriage of justice which may arise from the acquittal of guilty is no less than from  the conviction of an innocent.  In a case where the trial court has taken a view based upon  conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court  to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to wh ether the accused has committed any offence or not.      Probable view taken by the trial co

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urt which may not be disturbed in the appeal is such a view which is based upon legal and ad missible evidence.  Only because the accused has been acquitted by the trial court, cannot b e made a basis to urge that the High Court under all circumstances should not disturb such a  finding.         In the instant case the trial court relied upon certain aspects of the case as notic ed earlier for passing an order of acquittal.  Examined critically, none of the aforesaid ci rcumstances or aspects can be held to be based upon legal evidence.  Whether Exhibit 36 or E ntry No.20/89 is the First Information Report would not change the nature of the allegation  made against the accused as no discrepancy is pointed out in the aforesaid entries.  Entry N o.20 is recorded on the basis of report received from the Hospital and Exhibit 36 is on the  basis of statement of the complainant Ali Mohmed.  In the absence of any discrepancy in the  aforesaid two documents, the accused-appellant could not be acquitted.  The two entries did  not make the so-called two versions possible.  The only inference of the two entries is that  occurrence had taken place in which Abdul Karim Ali Mohmed had died and the appellant had i nflicted injuries.  Similarly the time of death in no way proves the appellant to be innocen t.      In presence of the ocular testimony of eye-witnesses that occurrence had taken place  on 27th March, 1989 at about 7.30 p.m. in which the injuries found on the person of the dec eased were caused by the appellant, the time of death of the deceased ascertained on the bas is of opinion of the Doctor was in no way helpful to the appellant.      We also find that t he trial court had no reason to hold that the identity of the weapon of offence was doubtful  or Mamudu @ Abdulla (PW9) was not the prosecution witness whose statement had been recorded  under Section 161 of the Code of Criminal Procedure.  The defects in the investigation hold ing it to be shaky and creating doubts also appears to be the result of the imaginative thou ght of the trial court.  Otherwise also defective investigation by itself cannot be made a g round for acquitting the accused.  The trial court was also not justified in holding that th e statement of the witnesses under Section 161 Cr.P.C. were recorded late by the police and  that there was any chance of manipulation.  The FIR is proved to have been recorded within 1 5 minutes of the occurrence and its copy furnished to the Magistrate within 24 hours, which  rules out the possibility of manipulation.  The contradictions in the evidence of the witnes ses, referred to in the judgment of the trial court, are of very minor nature which instead  of discarding their testimony strengthens the case of the prosecution of the witnesses being  truthful as they were not shown to have made parrot like statements.  A critical examinatio n of the judgment of the trial court shows that the view taken by it was uncalled for, not b ased upon the facts of the case or the legal evidence tendered in the case and was the resul t of conjectures, imagination and hypothesis.  The High Court rightly held that the conclusi ons arrived at by the trial court were factually and legally incorrect.  The High Court was,  therefore, justified in re-examining the whole evidence produced in the case and to hold th at the accused-appellant was proved to have committed the offence of murder beyond all reaso nable doubt.  He has rightly been convicted and sentenced for the commission of the aforesai d offence.      We do not find any illegality or error of jurisdiction in the judgment of th e High Court requiring our interference.         There being no merit in this appeal, the same is dismissed.

                                               ............................J.                                                 (R.P. Sethi)

                                               ............................J.                                                 (K.G. Balakrishnan) February 14, 2002