IN THE SUPREME COURT OF INDIA CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NOS. 499 OF 2002

M.C. ALI & ANR.          …....APPELLANT(S)

VERSUS

STATE OF KERALA                …RESPONDENT(S)

W I T H

CRIMINAL APPEAL NOs.434 of 2002

AND

CRIMINAL APPEAL NOs. 500-501 of 2002

J U D G M E N T

SURINDER SINGH NIJJAR, J.

1. These  three  appeals  have  been  filed  against  a  common  

judgment of the High Court whereby the six appellants in the three  

appeals have been convicted under Sections 302, 307, 149 and 34 of  

the  Indian  Penal  Code  (for  short  ‘IPC’  );  the  sentence  to  life  

imprisonment for offences under Section 302 read with Section 149 or  

34 of the IPC; rigorous imprisonment for five years under Section 307  

read with Section 149 or 34 of the IPC; rigorous imprisonment for six  

months each under Sections 143 and 148 of the IPC.   

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2. Initially  13  persons  including  the  six  appellants  had  been  

charge-sheeted  in  Kumbla  Police  Station,  Crime  No.22/1994  for  

offences punishable under Sections 143, 148, 324, 307 and 302 of  

the  IPC  read  with  Section  149  of  the  IPC.   Upon  trial,  the  six  

appellants had been convicted under Sections 143, 147, 148, 307 and  

302  read  with  Section  149  of  the  IPC  and  sentenced  to  life  

imprisonment  together  with  various  other  periods  of  imprisonment  

under  different  sections.   The  sentences  were  directed  to  run  

concurrently.   Accused  Nos.  7  to  13  were  found  not  guilty  and  

acquitted of  all  the charges.   The convicted accused filed Criminal  

Appeal No.391/96 before the High Court of Kerala.  At the same time,  

the acquittal of accused Nos.7 to 13 was challenged through revision  

by K. Hussain (PW2) the son of Moosa Haji, PW5 (the injured witness),  

through Criminal Revision Petition No.1115/96.  Through a common  

judgment, the High Court was pleased to accept the appeal filed by  

the convicts and their convictions as well as their sentences were set  

aside.  The case was remanded to the Trial Court for fresh disposal  

after complying with the provisions under Section 233 of the Criminal  

Procedure  Code.   Criminal  Revision  Petition  No.1115/96  against  

acquittal of accused Nos.7 to 13 was dismissed.  

3.   On remand, accused Nos.1 to 6 appeared before the Court on  

9.1.1998.   They  were  given  an  opportunity  to  adduce  defence  

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evidence.   Consequently,  they examined DW1 to DW5 and marked  

Exbts. D7 to D10.  At the time of the remand, the earlier Sessions  

Judge who had convicted accused Nos.1 to 6 had been transferred,  

therefore, the evidence was recorded by his successor in office.  On a  

reappraisal  of  the  evidence  led by  the  parties,  the  Sessions  Judge  

came to the conclusion that the prosecution had failed to prove the  

offences  alleged  against  the  accused.   They  were,  therefore,  all  

acquitted.  

4. These  acquittals  were  challenged  by  the  Sate  of  Kerala  in  

Criminal  Appeal  No.444/98  and  by  PW2,  K.  Hussain,  in  Criminal  

Revision No.552/98.  The High Court, by a common judgment, came  

to the conclusion that the prosecution had conclusively proved the  

case against accused Nos. 1 to 6 and the findings recorded by the  

Sessions Judge were perverse  and manifestly  erroneous.  Therefore,  

the judgment of the Trial Court was set aside.  They have all been  

convicted for various offences, as noticed above.  

5. Against  the  conviction  and  sentence,  accused  Nos.1  and  4,  

namely,  K.  M.  Iddinkunhi  and  Andan,  have  filed  Criminal  Appeal  

No.434/2002, accused Nos. 2 and 3, namely, M.C. Ali and Andunhi  

have filed Criminal Appeal No.499/2002 and accused Nos.5 and 6,  

namely, B.K. Bayan Kunhi and K.B. Abbas have filed Criminal Appeal  

Nos.500-501/2002.

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6. We have heard the learned counsel for the parties.  Before we  

consider the submissions made by the learned counsel, it would be  

appropriate  at  this  stage  to  notice  the  case  as  presented  by  the  

prosecution.   

7.     It  is  claimed by the prosecution that  Moosa Haji,  (PW5),  his  

family  and  some  of  his  close  relatives  are  believers  of  Shemsia  

Thareequat sect in the Muslim community. They are the worshippers  

of Sun and followers of Sai Baba.  They are not accepted by a large  

section of the Muslim community.  Therefore, the local Jumaath had  

unleashed “a sort of an overt and covert attack on PW5 and other  

followers of Thareequat movement.”  This had created fights between  

the  two  groups  of  the  locality  which  caused  friction  in  the  

relationships,  activities  and  life  which  ended  up  in  a  number  of  

disputes  including  criminal  cases.  The  majority  in  the  Muslim  

community of the area had ex-communicated PW5 and other followers  

of Thareequat movement. It is further alleged by the prosecution that  

some of the religious scholars had even called upon the members of  

the Muslim community to annihilate the followers of the Thareequat  

movement  on the  belief  that  such actions  would  bring the  reward  

from the Almighty.  Such type of social boycotting had put PW5 and  

other followers in a situation of not even getting employees to work in  

the agricultural fields and also for other work.  This had compelled  

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them to bring the workers from other areas.  PW1, Chandrasekhara,  

was thus brought by PW5 from Ubradka, Mittur, Karnataka State and  

deceased Faizal from Manjeri.  Because of the threat of other people of  

the  Jumaath  both  PW1  and  deceased  Faizal  were  residing  in  the  

house of PW5.  PW1 Chandrasekhara belonged to Scheduled Caste.

8. On  30.1.1994,  PW5  Moosa  Haji  and  his  son  PW2  Hussain  

returned at about 8 p.m. to their home. They came to know that the  

child of CW9, Mammunhi Haji, the brother of PW5, had met with an  

accident and suffered some injuries.  On receipt of this information,  

PW5 asked PW2 to go to the house of CW9 and enquire about the  

details.  Because of the tension prevailing in the locality between the  

two groups of Muslim community, PW5 asked PW1 and the deceased  

Faizal to accompany PW2 to the house of CW9.  Thus all the three  

proceeded to the house of CW9, at about 9.15 p.m.   There were two  

ways to reach the house of CW9 from the house of PW5.  Both were  

through the paddy fields, one on the higher level and the other on the  

lower level.  They had proceeded along the path way leading through  

the higher level.  When they reached the Thrikkandam paddy field of  

one Kunhamu Haji, they proceeded westwards to reach the house of  

CW9.  The paddy field was free of paddy as the harvest was over.  

They walked through the bund of the fields.  All three of them had  

torches in their hands.  While thus proceeding, they found a group of  

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about 15 persons standing on the north-western end of  the paddy  

field.  While they were proceeding westwards the group of 15 moved  

towards eastwards along the same bund.  The group also had torches  

in their hands and they had flashed the torches on PW5, 1, 2 and  

Faizal  who  also  flashed  back  their  torches.   In  this  light  PW1  

identified A1 to A6 as he knew them by name.  A7 to A13 were also  

present in the group whom PW1 could identify, but did not know their  

names at that time.  PW2 knew A1 to A13.  

9.     When both the  groups  thus reached at  the  paddy field,  the  

accused suddenly attacked PWs 1, 2 and Faizal.  A1 had MO1 weapon  

in his possession and A2 to A6 were in possession of knives.  A7 to  

A13  were  in  possession  of  sticks  like  MO2.   A1  to  A4,  with  the  

weapons in their hands, inflicted cuts on the neck of Faizal.  When  

PW2 intervened, A1, A3, A5 and A6 attacked PW2 with weapons in  

their possession.  Because of the severity of the injury suffered by  

Faizal,  he fell down.  A1 to A6 had again attacked Faizal who was  

lying down by inflicting cut injuries on his body.  The other accused  

had beaten Faizal and PW2 with sticks.  The accused were shouting to  

do  away  with  PW2  and  Faizal.  To  save  his  life,  PW1,  i.e.,  

Chandrasekhara jumped from the higher level of the ridge to the lower  

level and took shelter in the house of CW9 Mammunhi Haji.   PW2  

Hussain, who also suffered injuries, ran for his life and reached the  

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house of CW9. As Faizal did not reach the house of CW 9 Mammunhi  

Haji, PW 1 along with a son of CW 9 went to the scene of occurrence  

and saw that Faizal was lying dead in the paddy field.

10.     PW 5 Moosa Haji heard a lot of noise from the side of the paddy  

field. He sensed something bad must have happened, as his son and  

employees had gone in that direction. Therefore, becoming restless, he  

proceeded towards the direction from where the noise originated. He  

ran towards the west of his house and as he reached the path to the  

mosque on the north direction, he saw some persons entering that  

pathway from the paddy field in the west. Some people had already  

gone towards north. On reaching nearer, he identified accused 1 to 4,  

7, 9 and 11 to 13.  All of them possessed weapons like knife or sticks.  

PW 5 Moosa Haji enquired as to what happened to which A 7 replied  

that they had killed two persons. Suddenly A 13 gave a cut to PW 5  

with a sharp edged knife-like weapon. While warding off the same, PW  

5, fearing further attack, ran towards his house. He locked the door  

and remained inside. His attempts to contact CW 9 Mammunhi Haji  

over the telephone were not successful.   

11. PW7, the then Sub-Inspector, Kumbla Police Station, received  

information  at  9:50  pm  on  30.1.1994  over  telephone  that  some  

incident had taken place at Ujar Ulwar village resulting in the death of  

one person.  The informant did not disclose his identity.  PW7 entered  

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this information in general diary (Ex. P9).  He then proceeded to the  

place of occurrence with whatever force he had in the police station.  

12. On  reaching  the  place  of  occurrence,  after  making  inquiries  

near the local mosque, he was able to trace out the house of PW5,  

who was inside the house.  He (PW5) narrated what had happened to  

the Sub-Inspector and took the police party along the pathway to the  

house of his brother, CW9.  At the house of CW9, they saw PW2 who  

had sustained injuries. At that time they learnt that Faizal had been  

murdered.  The Sub-Inspector (PW7) immediately made arrangements  

to take PW2 and PW5 to the hospital in the police jeep.   

13. First Information Statement was taken from PW1 by PW7 in the  

house of CW9. Since Police jeep was sent with PW2 and PW5 to the  

hospital,  he  sent  a  constable  to  Kumbla  Police  Station.  The  Head  

Constable (PW8) on general diary charge (GD charge) duty, registered  

the FIR at 00.30 hours on 31.1.1994. On that day morning itself it  

was sent to the Magistrate and the Magistrate signed it on the same  

day  at  3.30  p.m.   According  to  the  prosecution,  Circle  Inspector,  

Kumbla Police Station (PW9) who was at Kasargod on law and order  

duty in connection with the meeting of the Muslim League, received  

wireless  information  that  two  groups  had  clashed  at  Ujar  Ulwar  

village.  He, therefore, rushed to the village with police party where he  

met PW7.  Both of them made arrangement for maintaining law and  

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order. They also posted guards at the scene of occurrence during the  

night.  The injured witnesses PW2 and PW5, who were traveling in the  

police jeep, reached Bayikatta.  From there they got into the car of  

their relative as the jeep had to be returned to the Sub-Inspector PW7.  

At that  stage,  PW5 remembered that  he had forgotten to take any  

money.  They, therefore, went to the house of one Mohan Kamath, a  

friend  of  PW5,  who  also  accompanied  them  to  the  City  Hospital  

Research and Diagnostic Centre at Mangalore.  

14. When the first accused was questioned, he made a confessional  

statement to PW9 about the place of concealment of MO1, weapon of  

offence.  A1, after recording the statement, took PW9 to the ditch with  

thick  grass  on  the  eastern  side  of  the  paddy  fields  where  the  

occurrence took place.  He took out knife (MO1) from the place where  

it had been concealed.  This was duly sealed by PW9 under Ex.P8  

seizure mahazar on 3.2.1994.   The seizure mahazar is  attested by  

PW6.  The accused were produced before the Magistrate Court and  

remanded in custody.   The MO1 was  then forwarded  for  chemical  

examination.  The report of the chemical analysis Ex.P21 shows there  

was human blood on MO2 series, the sticks.  There was no blood on  

MO1, 6 and 9.

15.     Dr. S. Adhyanth PW3, the duty medical officer, examined PW2  

and PW5.  He issued the wound certificate (P4) in respect of PW2 and  

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admitted him for treatment.  He was discharged on 7.2.1994.  The  

same doctor also issued the wound certificate (P5) on examination of  

PW5  who  was  treated  as  an  outpatient.   The  doctor  PW3  sent  

intimation Exbs.P6 and P13 to the police regarding the admission of  

PW2 and treatment of PW5.  Further investigation was conducted by  

PW9 from 31.1.94.  He conducted the inquest on the dead body of  

Faizal.   He also seized material  objects (MOs 2 to 9) and prepared  

Ex.P14 report.   A  knife  (MO6)  covered  with  newspaper  (MO9)  was  

found kept at the back of waist of the deceased.  During the inquest  

PW9  got  the  photographs  of  the  dead  body  and  the  scene  of  

occurrence which is marked at Ex.P2 (series). Ex.P2 (A) shows that  

MO6 was on the waist of the deceased.  The photos and the negatives  

were seized under Ex.P17 seizure mahazar,  when produced by the  

photographer.  PW9 also drew up Ex.P.15 scene mahazar. In Ex.P1,  

PW1 mentioned only the names of accused A1 to A6. But he stated  

several more accused were there whose names were not given. But  

according to him, he could identify them. After questioning PW2 and  

PW5, names of other accused were included.  

16.     Dead body of Faizal was sent for post mortem and PW3 received  

the  post  mortem  certificate  (Ex.P3)  from  the  then  doctor  of  

Community  Health  Centre,  Kasargod.   The post  mortem certificate  

was  marked  by  consent  of  both  sides  under  Section  294  of  the  

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Criminal Procedure Code.  In the First Information Statement (Ex.P1),  

PW1 Chandrasekhara had stated the names of accused 1 to 6.  He  

also stated that there were 7 more accused whose names were not  

known to him but he could identify them on sight.  PW2, according to  

the  prosecution,  was  under  general  anesthesia  for  suturing  of  the  

wounds  and,  therefore,  could  not  be  questioned  immediately.  

However, he was questioned by PW9 on 3.2.1994 in the City Hospital.  

Thereafter  PW9  filed  report  (array  of  accused)  P.16  in  Court  on  

3.2.1994  including  the  names  of  accused  7  to  12.   PW5  was  

questioned  by the  investigating  officer,  PW9.   On 4.2.1994 on the  

basis of his statement name of 13th accused was added.  Accused Nos.  

1 and 3 to 6 surrendered before the investigating officer in his office  

on 3.2.1994.  They were duly arrested.  Accused Nos.A8 to 12 were  

arrested between 29.4.1994 and 30.4.1994.   

17. At the same time, A2 to A7 also claim to have suffered some  

injuries  on  the  night  of  30.1.1994.   They  went  to  Unity  Health  

Complex at Mangalore on 31.1.1994, where they were admitted and  

treated as in-patient.  Exs. P23 and P24 are the treatment particulars  

whereas Exbs.P25 and P26 are the  case sheets  respectively  of  the  

accused.  PW10 and DW1 had treated them during this period.  They  

were  discharged  on  23.3.1994  on  which  date  PW9 arrested  them.  

A13 was absconding but later appeared before the Magistrate Court.   

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18.   While at the Unity Health Complex, a statement was given by  

M.C. Ali (A2), which was recorded by the Kadari Police Station as the  

First  Information  Statement  (Ex.P22).  In  this  he  claimed  that  on  

30.1.1994, he and his neighbour Abdul Rahiman were returning from  

Kasargod  at  9.30  p.m.  after  attending  a  Muslim  League  meeting.  

When  they  reached  a  place  called  Trikkandam  through  Kunjamu  

Haji’s field at 10.15 p.m., they found Mammunhi Haji’s son Hussain,  

his brother Abdul Khader, Moosa Haji, his son Hussain, his brother-

in-law Jamal  Bayikkatta  coming from the  opposite  direction.   The  

complainant also stated that these people had enmity with them and  

thus  they  blocked  them  and  told  “we  will  not  leave  anybody”.  

Mammunhi Haji’s son and Jamal inflicted injuries on his left hand  

shoulder and armpit.  When Abdul Rahiman came to block, Moosa  

Haji and his son inflicted injuries on his right hand and the wounds  

started  bleeding.   At  that  time  complainant  fell  down and he was  

beaten up on his right leg and left side of the head with a stick and as  

a result of which he became unconscious.  He has also stated in his  

complaint  that  there  was a  case  pending  regarding  the  issue  of  a  

mosque  between him and the  accused  and thus  the  accused had  

caused injuries  to  them with sword-like knife,  sticks,  etc.   On the  

basis  of  the  aforesaid  statement,  Crime  No.  67/94,  transfer  FIR  

(Ex.P11)  for offences under Sections 143, 147, 148, 324, 341, 506  

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read with 149 IPC was registered.  The same was later on transferred  

to  Kumbla  Police  Station,  where  PW8  registered  it  as  Ex.P12  of  

Kumbla Police Station.  PW9 also conducted the investigation of FIR  

(Ex.P12).   On  completion  of  the  investigation  charges  were  filed  

against five accused persons including PW2 and PW5.   

19. On committal this case was numbered as SC No.66/95 against  

the 13 accused.  The case against 5 accused, registered on the basis  

of FIR Ex.P12, was numbered as SC 111/95.  The trial of both the  

cases was taken up simultaneously one after the other and judgment  

in both the sessions cases was pronounced on the same day.  We  

have noticed above that after trial accused 1 to 6 were convicted in SC  

No.66/95.   

20. On remand, the accused had examined DWs 1 to 5.  The Trial  

Court takes note of the post mortem report of the dead body.  It was  

marked as Ex.P3 by consent of both the sides.  The report indicates  

the following external and internal injuries:    

“Entire body of an adult male lying supine.  Rigor  mortis  present  in  both  upper  &  Lower  limbs.  Bleeding from both nostrils present.

External  injuries:-   Incised wound on the face  transversely placed extending from the center of  upper lip to Lt. Cheek 14 x 3 x 3 c.m. exposing  the oral cavity cutting the full thickness of facial  muscles.  2)  Incised  wound  on  the  Lt.   Cheek  below the Lt. Eye transversely placed 6 x 1 c.m.  skin deep. 3) Incised wound on the lower part of  chin transversely placed 10 x 6 c.m. flap of skin  

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& subcutaneous tissue raised exposing the lower  part of mandible.  4) Incised wound on the Right  side of neck transversely placed 12 x 5 x 6 c.m.  cutting the muscles of neck on Right side with  carotid  artery  and  jugular  veins  and  trachea  being cut.

Incised wound on the inner aspect of left ankle  region transversely placed 6 x 1 x1 c.m. cutting  the lower end of tibia.  6) Incised wound 1 c.m.  above injury No.5 transversely placed 4 x 1 c.m.  skin deep. 7) Incised wound on the front of right  leg  transversely  placed  5  x2  c.m.  cutting  the  tibia which is fractured. 8) Incised wound on the  front or right leg 6 c.m. above injury No.7, 4 x 5  c.m. skin deep. 9) Incised wound on the dorsum  of right second toe 5 x 0.5 x 1 c.m. along the  long  axis  of  the  toe  cutting  the  tendons  and  bone.  10)  Linear  abrasion  obliquely  placed  on  the front of right thigh 6 c.m. long. 11) Linear  abrasion  obliquely  placed  on  the  front  of  left  thigh  5  c.m.  long.  12)  Linear  abrasion  transversely placed on the front of left shoulder  3 c.m. long. 13) Incised wound on the right side  of  scalp  running anterior  posterior  6 x  1 c.m.  exposing the skull.

Internal  Examination :-  Thoracic  cage  intact.  Heart & Lungs intact.   Plae stomach, contains  partly digested food materials.  Liver, spleen and  kidneys plae. Urinary bladder contains 150 c.c.  of Urine, skull intact, Brain and meninges pale”.  

21. The opinion as to the cause of death of Faizal given in Ex.P3 is  

that “the deceased dies due to hemorrhage and shock due to injuries  

to major vessels of neck”.  During the hearing neither the prosecution  

nor the defence has challenged the finding and the opinion contained  

in Ex.P3.  Therefore it was accepted by the Trial Court that Faizal died  

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due to hemorrhage and shock suffered by him because of the injuries  

on the major vessels of the neck.

22. We may also notice here that the injuries noted in the wound  

certificate (Ex.P4) issued to PW2 on examination by the doctor PW3.  

PW2 was examined at 1.15 am on 31.1.1994.  The certificate indicates  

the following injuries:  

“1. L  shaped  incised  wound  on  the  parietal   aspect of the skull 5 x 6 c.ms;

2. Two  small  incised  wounds  on  the  right   parietal region of the skull;

3. Incised wound over the nose 2 cm x 1 cm; 4. Swelling and deformity over the lower end   

of left hand. X-ray of the left hand showed  comminuted fracture of right  ulna  lower   end.”

23. As noticed earlier, he was admitted on 31.1.94 and discharged  

on 7.2.94. The injury No.4 was grievous while the other injuries were  

simple.  The doctor also noticed that the history was of alleged assault  

by known persons at Ulwar, Kumbla at 10.15 pm on 30.1.1994.  PW5,  

who was examined by doctor PW3 at 1.25 am on 31.1.1994, was also  

issued  wound certificate  Ex.P5.   As  per  Ex.P5  statement  following  

injuries were suffered by PW5:  

“1.  Incised wound over the first web space of  the left hand with partial tear of the flexor  tendons (1” x ½”)’

 2. Incised  wound  on  the  base  of  the  left   thumb 3/4 “x ¼”.  

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24. Doctor  also  opined  that  injury  No.1  in  respect  of  PW5  was  

grievous in nature.  PW3 sent intimation Ex.P6 to the police.  As per  

the intimation report P6, RMO had come to the hospital.  On the basis  

of Ex.P6, it has been noticed that PW2 was taken to the operation  

theatre for suturing and closed reduction under general anesthesia  

was done.  The report also shows that at 11.40 am on 31.1.1994 the  

patient was not in a position to give a statement.  The Trial Court  

notices that after remand the defence had examined DW1 to DW5 and  

marked Exs. D7 to D10, the prosecution had marked Ex. P25 (a-g).  

Thus the total evidence in this case was PW1 to 10 and Exts P1 to  

P26 series together with MO1 to 9 for the prosecution and DW1 to 5  

and Exts.D1 to D10 for the defence.  The Trial Court, after hearing  

submissions from the prosecution as also the defence, formulated the  

following points for consideration:   

“1. What was the cause of death of Faizal?  2. Whether  the accused 1 to 6 along with   

others  had  formed themselves  in  to  an   unlawful  assembly  and  acted,  in   furtherance  of  their  common object,  as   alleged against them by the prosecution?

3. What offence, if any, is proved against the  accused 1 to 6?

4. Regarding sentence?”

25. As noticed earlier, the post mortem report has been accepted by  

both the sides, according to which Faizal died due to hemorrhage and  

16

shock suffered by him because of the injuries on the major vessels of  

neck.  While discussing points No.2 and 3, the Trial Court notices  

that PW1 is a native of Mittur, in State of Karnataka and has been  

living in the house of PW5 as a worker under him for the last about  

10 years.   He had gone with PW2, and the deceased Faizal  to the  

house of CW9 at about 9.15 pm on 30.1.1994.  It is alleged by the  

prosecution that the occurrence took place, whilst they were enroute  

to the house of CW9. PW1 has supported the prosecution version.  It  

was  he  who  gave  Ex.P1  FIS  to  PW7 on the  basis  of  which  crime  

against A1 to A6 was registered at Kumbla Police Station.  The Trial  

Court  then  notices  the  sequence  of  events  as  narrated  earlier.  

Prosecution mainly relied on the evidence of PW1, 2 and 5 in support  

of its version.  

26. The Trial Court noticed the entire sequence of events, narrated  

above.  It  also  noticed the  defence  version.  It  was noticed  that  the  

learned counsel appearing for the accused had pointed out that there  

was delay in sending Ex.P1 and P10 to the Court; PW1 was probably  

not present at the scene of the incident; the injuries sustained by A2  

and A7 were not explained by the prosecution and the registration of  

a counter case by A2 would be sufficient to show that it was the PWs  

who were the offenders.   

17

27. The  Trial  Court  further  notices  that  the  local  Muslim  

community  who are  in  majority  have  a  long  standing  enmity  with  

PW5, his family and other close relatives.  The religious scholars had  

even  called  upon  their  followers  to  do  away  with  the  believers  of  

Shemsia Thareequat sect of the Muslim community.  Their life and  

movement had been made impossible in the locality.  The majority of  

the  Muslim  community  was  encouraged  to  disrupt  the  life  of  the  

family of PW5 and his relatives. They had been boycotted and were  

not allowed to socialize with the local Jumaath.  The Trial Court also  

notices  the  prosecution  version that  on 30.1.1994 at  about  8 pm,  

PW5 and his son PW2 returned to the house.  They were informed  

that CW9, brother of PW5, who was residing at some distance from  

the  house  of  PW5  had  telephoned  to  inform  that  his  son  had  

sustained some injuries because of a fall.  Therefore PW5 had asked  

PW1 deceased Faizal to go along with PW2 to the house of CW9.  PW1  

and Faizal had been asked to go along with PW2 due to the peculiar  

situation existing in the locality against PW5 and his family.  At about  

9.15 P.M. they proceeded to the house of CW9 Mammunhi Haji.   

28. In  appreciating  the  evidence  with  regard  to  the  alleged  

occurrence, the Trial Court notices the background of both PW1 and  

deceased  Faizal  with  regard  to  their  relationship  with  PW5 Moosa  

Haji.   It  is  noticed  that  PW1,  who  belongs  to  a  schedule  caste  

18

community, had been working for PW5 for the last 10 years.  At the  

time of the occurrence he was allegedly residing in the house of PW5.  

He  admits  that  his  native  place  is  Mittur  Sullia  in  the  State  of  

Karnataka.  Faizal was also working under PW5 and he is the native  

of Manjeri, Malappuram District.  He had also been brought by PW5  

for employment as he was unable to find any local workers.  The Trial  

Court notices that according to both PW1 and PW2 they had taken  

the shortest route through the paddy field to the house of CW9.  All of  

them had torches in their hands.  Whilst they were going they found a  

group  of  15  people  standing  together  about  50  meters  away  from  

them.  At that time they were passing through the pathway near the  

house of A4.  They did not suspect anything when they had moved  

forward for another  10.5 meters.   One of  the  individuals  from the  

crowd flashed the torch light at them.  Other members of the crowd  

flashed their torch lights on the ground.  By that time the distance  

between the deceased PW1 and PW2 and the other group was about 5  

meters.  All three of them also flashed back their torch lights. PW1  

and PW2 were walking with Faizal  in the front,  in the torch light.  

Suddenly  they  cut  Faizal  on  his  neck  causing  injuries.  PW2  

intervened.  Then A2, A3 and A5 and A6 caused injuries with their  

weapons on the hands, head, face and other parts of the body of PW2  

by cutting with the weapons.  Faizal fell down and PW1 ran away from  

the scene.  PW1 stated that after seeing that PW2 and Faizal were  

19

injured, he ran for safety to the house of CW9.  The door of the house  

was closed as they were afraid of further attacks.  Since Faizal did not  

reach the house of CW9, PW1 and son of CW9 went to the place of  

occurrence. They saw that Faizal was lying dead in the paddy field.  

Both of them returned to the house of CW9 and reported the matter.  

PW7 then got the information over the telephone as narrated earlier.  

He came to the place of occurrence, and went to the house of PW5.  

He had also sustained injuries in the same incident, after Faizal had  

been killed and PW2 had been injured. PW5 then took the police party  

to the house of  CW9 by the same route which had been taken by  

PW1, PW2 and Faizal.  Statement made by PW 1 was recorded as First  

Information Statement by PW 7 which is produced as Ex. P1.   This  

was sent to PW8 who recorded the FIR.  The FIR according to PW7  

was  recorded  at  00.30  hrs  on  31.1.1994.   It  was  received  by  the  

Judicial  Magistrate,  Ist  Class,  Kasargod at  3.30 pm on 31.1.1994.  

The Trial Court notices the submissions of the defence that this gap of  

15 hrs clearly shows that PW1 was not present in the house of CW9  

when  PW7  went  to  that  house.   In  fact,  no  First  Information  

Statement  was  recorded  by  PW7  at  that  place.   According  to  the  

defence Ex.P10 FIR was registered much later.  This gap has given an  

opportunity  for  the  prosecution  to  manipulate  the  case  and  book  

innocent persons who were thought to be inimical with PW5 and his  

family.   

20

29. Analyzing the aforesaid submissions of  the defence,  the Trial  

Court notices that Ex.P10 FIR was received by Kasargod Magistrate at  

3.30 pm on 31.1.94.   The distance from Kumbla Police  Station to  

Kasargod  is  less  than  15  kilometers.   They  had  a  duty  police  

constable who comes to the court to attend the day’s cases at Kumbla  

Police  Station.   Therefore,  there  was  no  difficulty  for  the  Kumbla  

Police Station authority to send Ex.P10 and Ex.P1 along with police  

constable so that they will  be received at least by the office of  the  

Magistrate if  not the Magistrate himself  before 11 am on that day.  

The Trial Court scrutinizes the effect of late receipt of the FIR by the  

Court very closely.  The prosecution had submitted that the delay in  

receiving Ex.P10 FIR was not fatal to the prosecution case as it did  

not  prejudice  the accused and it  was not introduced to make any  

improvements  or  distort  the  version  of  the  occurrence.  After  

appreciating the aforesaid legal position the Trial Court notices that  

since it is the case of the prosecution that PW1 had run away from  

the place of occurrence after witnessing the assault, the action of PW1  

and the evidence of the prosecution needs close scrutiny.  Therefore  

late receipt of Ex.P10 and P1 assumes importance.  The Trial Court  

then notices that it is recorded in the inquest report Ex.P14 that the  

inquest on the dead body of Faizal was conducted on 31.1.1994.  The  

inquest commenced at 10 a.m. and was completed at 12.30 p.m. The  

21

query at Sl.No.12 (a)  of the prescribed form is to be filled by PW9  

under  Section  174 Criminal  Procedure  Code.   The  query  is  “while  

conducting inquest is any person suspected who and why”. In answer  

to this Ex.P.14, PW9 recorded that “accused are known”.  The Trial  

Court also notices that P.W.9 did not record who the accused are and  

why they are suspected.

30. The  Trial  Court  agrees  with  the  suggestions  made  by  the  

defence that Ex.P.14 was perhaps prepared prior to Ex.P.1.  Vague  

answer was given to Question 12 (a) of Ex.14, so that other persons  

could  be  added as the  accused.   Therefore,  it  has  been held  that  

Ex.P1  has  not  been  registered  as  alleged  by  P.W.7.   Another  

suspicious circumstance was that PW1 had deposed that Ex.P1 was  

recorded by himself.    But in cross examination,  he conceded that  

Ex.P1 was not in his own hand writing and is in that of some other  

person’s hand writing.  The Trial Court, therefore, holds that Ex.P1  

was not recorded as alleged by the prosecution at the place and time  

recorded both in Ex.P1 as well as in Ex.P10.  The Trial Court also  

notices  that  when  PW1  appeared  as  DW5  after  the  remand,  he  

deposed that he had been working for PW5 for the last 10 years.  He  

also  deposed  that  he  would  do  whatever  PW5  asked  him  to  do.  

However, since the witness had clarified in the re-examination that he  

22

did not understand the question, the Trial Court ignored the earlier  

statement.  

 31. The  Trial  Court  then  examines  the  sequence  by  which  the  

names of accused No.7 to 12 have been incorporated.  The Trial Court  

takes note of the fact that both the parties claim to have recognized  

each other in torch light.  After analyzing the evidence with regard to  

the assault, the Trial Court notices that there is no reason as to why  

the attackers would allow PW1 to escape.  After all they were fifteen  

persons in a group and had every intention to kill the three members  

of  the  opposite  group  approaching  them.   The  Trial  Court  also  

concludes that behaviour of PW1, PW2 and Faizal to continue walking  

towards the other group even though they were carrying weapons in  

their  hands would not  be consistent  with  normal  human conduct.  

The normal instinct would have been either to retaliate or to run away  

from the scene.  On the basis of the above the Trial Court had formed  

an opinion that the prosecution had not placed before the Court the  

exact  situation  under  which the  attack  had really  occurred.   This  

would put a cloud of suspicion over the presence of PW1 at the scene  

of the crime.  In case PW1 was present, he ought to have identified the  

accused with their respective weapons.  If he had fled the scene, he  

could not have given all the graphic details of the assault, in the FIS,  

as recorded in the house of CW9.   For this reason perhaps PW9 was  

23

not in a position to reply  to  the prescribed query at  Sl.12A under  

Section 174, Criminal Procedure Code while conducting the inquest.  

32. The Trial Court pointed out numerous other infirmities in the  

prosecution case.  It is noticed that PW1 was such a dedicated worker  

of PW5.  He had even made a false complaint against three of the  

accused under Section 3(1)(X) of the Scheduled Castes and Scheduled  

Tribes (Prevention of Atrocities) Act, 1989 and under Section 506(2)  

read  with  Section  34  IPC.   All  the  accused  were  acquitted  as  the  

prosecution version was disbelieved.  The Trial Court also refers to  

another judgment Ex.D8 in case No.98/1995 delivered on 30.5.1996  

in which four accused were proceeded against by PW1 under Sections  

341, 323, 324 IPC read with 34 IPC and Section 310 of Scheduled  

Castes and Scheduled Tribes (Prevention of Atrocities) Act, 1989.  In  

this also the Court observed that it is not safe to accept and to act  

upon the evidence of PW1, therefore the accused were acquitted.  The  

Trial Court, therefore, notices that PW1 is not a believable witness.  

He is a sincere employee of PW5.  In view of his past conduct the  

locals probably had more hatred towards PW1 than Faizal.  Therefore  

it becomes more suspicious that Faizal gets killed while PW1 is left  

uninjured by the same group.

33. Moving  on  to  the  evidence  of  PW2,  who  was  admitted  and  

treated in the city hospital Bangalore at 1.15 A.M. on 31.1.1994, the  

24

Trial Court takes note of the wound certificate issued by PW3.  PW3  

stated that till PW2 was taken to the operation theatre, he was in a  

position to speak.  It is further stated by this witness that the effect of  

general anesthesia may last for two and a half hours and thereafter  

the patient will be normal.  According to the endorsement made on  

Ex.P6  by  Dr.  Geeta  Rao  the  then  RMO,  PW2 had  been  taken  for  

suturing and closed reduction under general anesthesia at 11.40 am  

on 31.1.1994.  PW2 was not questioned until 3.2.1994.  He was able  

to  speak  till  he  was  taken  for  suturing  at  11.40  on  31.1.1994.  

Although PW2 was present in the house of CW9, PW7 did not record  

any  statement  from him.   Since  PW2 was  the  injured  witness  he  

would have surely given a true version.  He was present at the scene  

of occurrence.  He had faced the attackers whereas PW1 had fled the  

scene on seeing the assailants.  The prosecution had totally failed to  

explain  as  to  why  PW2  was  not  questioned  till  3.2.1994.   The  

explanation given by prosecution that PW2 was not in a position to  

speak  is  belied  by  the  statement  of  PW3  together  with  the  

endorsement  as  well  as  the  recorded content  in  Ex.P4.   From the  

above also the Trial Court formed an opinion that the prosecution is  

not placing the whole truth before the Court.  

34. The Trial Court then critically examined the evidence of PW5,  

father of PW2.  PW3 had also treated PW5 and given wound certificate  

25

Ex.P5.  It is noticed that PW9 did not question PW5 till 4.2.94.  It was  

after questioning PW5 that A13 was added to the earlier accused and  

then no explanation was available as to why PW5 was not questioned  

till 4.2.94.  The only explanation given by the prosecution is that he  

was  not  available  for  interrogation.   Rejecting  the  aforesaid  

explanation the Trial Court concluded that PW9 deliberately delayed  

recording the statement of PW5 to implicate other innocent persons.  

At this stage, the prosecution had argued that the statements of PW2  

and  PW5  cannot  be  discarded  only  on  the  ground  that  they  are  

interested  witnesses.  The  principle  of  law  is  accepted  by  the  Trial  

Court. Therefore, the evidence of these witnesses was very carefully  

scrutinized.   The  Trial  Court  notices  that  there  is  absolutely  no  

independent evidence in this case to corroborate the evidence of these  

interested witnesses. Neither the immediate neighbours nor any of the  

people living in the vicinity have been examined.   The explanation  

given by the prosecution is that due to enmity towards PW5 and his  

family none has come forward to give the evidence.  The Trial Court,  

therefore, observes that in such circumstances the evidence of PW1  

and  PW2  had  to  be  carefully  examined  to  rule  out  any  inherent  

inconsistencies.   The  Trial  Court  further  notices  that  there  is  no  

independent evidence with regard to the injuries caused to PW2 by  

A2, A3, A5 and A6.  If these four persons had actually attacked PW2,  

he  would  have  suffered  many  more  grievous  injuries.   The  only  

26

grievous injury suffered by him was fracture of ulna lower and other  

injuries  were  simple  in  nature.   PW2 at  that  time  had run  away.  

Faizal after suffering fatal injuries had fallen down.  Again there is no  

corroboration from any independent witness.   

35. To  make  the  matter  even  worse,  A2  and  A7  had  suffered  a  

number  of  injuries.  PW10  had  deposed  that  A2  had  suffered  the  

following injuries:   

“(1) incised wound right shoulder 2” in length   (2) incised wound left side of chest 1½” in           length,  (3) incised wound left elbow 3” in length,   (4) incised wound left forearm 3” in length and    (5) fracture of lateral condyle of left humerus.”  

36. According to PW10 injury No.5 is a grievous injury.  Similarly,  

injuries in respect of A7 were given in Ex.P24.  This also shows that  

he  had  sustained  an  incised  wound  2½ inches  long  over  the  left  

forearm with tendons divided.  This injury is grievous in nature.  As  

noticed earlier, this assault had resulted in the registration of transfer  

FIR in Crime No.67 of 1994 which was subsequently transferred and  

registered  as  FIR  Ex.P12  at  Kumbla  Police  Station.  There  is  no  

explanation offered of the injuries.  The Trial Court notices that in this  

case PW9 had concluded after the investigation that both the cases  

are true.  But none of the prosecution witnesses PW1, PW2 and PW5  

speak about the manner and the circumstances under which A2 to A7  

27

had sustained injuries.  Therefore, this also leads to the conclusion  

that  the  prosecution  story  as  put  through  PW1,  2,  and  5  is  not  

correct.

37.   The defence has also pointed out that the investigating team  

did not even care to collect blood stained earth from the scene of the  

occurrence.   There  was  no  moonlight  on  30.1.1994.   The  torches  

allegedly  possessed  by  Faizal,  PW1  and  PW2  at  the  time  of  the  

occurrence were not recovered.  In spite of the availability of son of  

CW9 and CW9 himself, they were examined as witnesses.  The Trial  

Court, however, observed that “these small issues were, however, not  

considered  to  materially  effect  the  case  as  put  forward  by  the  

prosecution either  in favour of  the prosecution or in favour of  the  

defence.”   However,  otherwise  on  independent  assessment  of  the  

evidence  the  Trial  Court  concluded that  there  was  no evidence  to  

connect accused with the crime.     

 38. The High Court  in the impugned judgment has narrated the  

entire  sequence  of  events  as  recapitulated  by  us  above.  The  High  

Court also noticed briefly the reasons given by the Trial Court for not  

believing the prosecution story.  It is observed that there is no delay in  

recording the F.I. Statement.  According to the High Court, there is no  

circumstance to doubt that Ex.P.1 was not recorded at the time and  

place of the incident. There is no reason for PW7, the Sub-Inspector  

28

or PW9, the Investigating Officer, to make any false case. The High  

Court also concluded that it was unlikely that P.W.9, the Investigating  

Officer, and P.W.8 who had registered the FIR being Muslims, would  

concoct the story against the accused who were also Muslims. It was  

unlikely that they would have supported PW5 and his family who had  

leniency towards BJP. The High Court also concluded that there was  

no delay in forwarding the FIR to the Magistrate. Ex. P10 FIR was  

registered at 00.30 hrs on 31.1.1994. Ex P9 shows that there was  

only  PW  8,  Head  Constable  and  another  constable  in  the  police  

station at that time. Other Police personnel were on law and order  

duty. Ex.P.10 was sent to the Court through a Constable PC 450 at 8  

a.m. on 31.1.1994. If the Magistrate noted his initial only at 3 p.m.  

the prosecution cannot be faulted. Even if there is delay, it has been  

clearly explained. Mere delay in receipt of occurrence report by itself  

does not make the investigation tainted. The High Court also observed  

that on getting telephonic information, after entering the same in the  

G.D.,  the  police  party  rushed  to  the  spot.  On  reaching  the  spot  

without any delay, F.I. Statement was recorded. There was no delay in  

starting  the  investigation.  Injured  were  sent  to  the  hospital  in  the  

police  jeep  itself.  Law  and  order  situation  was  tense.  Ex.P.1  was  

recorded  at  the  house  of  C.W.9  at  11.45  p.m.  and  the  FIR  was  

registered  at  00:30  hours  on  31.1.1994.  With  regard  to  the  non-  

mentioning of the accused in the column provided under Sl.No.12 (a)  

29

of  the  inquest  report  (Ex.P.14),  it  is  noted  that  the  names  of  the  

accused are mentioned at the column where it is provided that “any  

person was questioned and whether statement was recorded from any  

person and their statement.” The High Court accepted the fact that  

the  statement  was  recorded  from  C.W.9  who  had  not  seen  the  

incident.  The  eye  witnesses  PW1,  PW2 and PW5 were  not  present  

when the inquest report was prepared. That is why in column 12(a), it  

was recorded that “accused are known”. Their names were actually  

mentioned at column No.13 in Ex.P.14. The High Court also observed  

that  non-examination  of  C.W.9  is  not  fatal.  The  High  Court  also  

makes the observation that the object of preparing the inquest report  

is only to draw a report of the apparent cause of death describing the  

wounds  found  on  the  body  of  the  deceased  and  stating  in  what  

manner  and  by  what  weapon  or  instrument  such  injuries  were  

inflicted.  It  is  neither  necessary  nor  obligatory  on  the  part  of  the  

investigating  officer  to  investigate  into  or  ascertain  who  were  the  

persons responsible for the death. Since the names of the accused  

have been mentioned in column No.13 it would not, in any manner,  

weaken  the  prosecution  case.  The  High  Court  also  negatived  the  

reasoning of the Trial Court as to why the FIS was not recorded on the  

basis of the information given by P.W.1 rather than P.W.2 who was  

injured.  According to the High Court,  there  is  no rule or  mandate  

under  Section  154  of  the  Code  of  Criminal  Procedure  that  F.I.  

30

Statement should be recorded only from an eye witness.  The High  

Court reiterated that the police reached the trouble spot on receiving  

information by telephone. They went to the house of PW5 hearing that  

some incident had taken place near his house. PW5 then took them to  

the house of C.W.9. There they saw PW1 and PW2. The High Court  

also notices that when P.W.1 saw that the deceased fell down and PW  

2 injured, he then escaped to the house of C.W.9. Since he had seen  

the persons who had attacked the deceased, he identified at least A1  

to A6 with their names. It is noticed by the High Court that PW2 was  

seriously injured. His presence was also not doubted. He was made  

an accused in the counter case. The High Court noticed that although  

PW2 was injured, he was not unconscious. According to the wound  

certificate, Ex.P4 on 31.1.1994 at 11.40 a.m. he was not in a position  

to give a statement.  At the time the anxiety of the police was to send  

the injured for treatment, therefore, the names of the accused were  

subsequently disclosed by PW2.  The High Court then considered the  

conduct of PW1 in filing complaints under the Scheduled Castes and  

Scheduled Tribes (Prevention of Atrocities) Act, 1989. It is, however,  

observed that the evidence of PW1 cannot be ignored on the ground  

that he was a loyal servant of PW5. Non recording of the statement of  

PW2 and P.W.5 immediately was also explained by the High Court on  

the ground that there was a law and order problem in the area.  When  

the police went to record the statement on the next day, P.W.2 was  

31

under  general  anesthesia.  He  was  not  in  a  position  to  give  a  

statement.  He  was  only  questioned  when  he  was  in  a  position  to  

speak.  With regard to adding the names of accused nos. 7 to 13, it is  

held that at the maximum, the other persons added by PW.2 or 5  

when they were questioned can be absolved by giving the benefit of  

doubt.  The  High  Court  then  examined  the  circumstance  that  the  

incident  happened in the  night  after  9.15 p.m.  PW1 and PW2 are  

natural  witnesses.  PW2 was  an injured  eyewitness.  PW5 was  also  

injured.  

39. On the basis of the law as settled by this Court in a number of  

judgments  which  are  noticed  by  the  High  Court,  it  is  held  that  

relationship is not a factor to affect credibility of a witness. It is more  

often than not that a relation would not conceal actual culprit and  

make allegations against an innocent person leaving a way for the real  

accused to escape. PW2 is not only related to PW5 but he was also  

seriously injured. The High Court reiterates that the presence of PW2  

at the scene of occurrence is not disputed due to the registration of  

the counter case. With regard to the non explanation of the injury on  

the accused, it is stated that PW9 and PW10 spoke about the same.  

The injuries were also explained by PW10, the doctor, who stated that  

the injuries in Ex.P.23 and P.24 certificates can be caused otherwise  

than by assault, i.e., by a fall or by a road transport accident.  

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40. Upon consideration of the entire evidence, the High Court held  

that the prosecution was able to prove the case conclusively against  

A1 to A6 beyond any shadow of doubt. The High Court also recorded  

that “the findings by the Sessions Court otherwise is perverse and  

manifestly erroneous.  Appreciation of evidence by the Sessions Court  

in this case lacks coherence and findings are based on unwarranted  

assumptions.  Hence,  even  though  it  is  an  order  of  acquittal,  

interference is required.” The High Court also observed that “in this  

case,  only  conclusion  possible  from  the  evidence  is  that  accused  

Nos. 1 to 6, i.e., respondents in this appeal are guilty of the charges  

levelled against them.” With these observations, the judgment of the  

Trial Court was set aside and the appellants were convicted as noticed  

by us above.    

41. We have heard the learned counsel for the parties.  Mr. Ranjit  

Kumar,  Learned  Senior  Counsel,  appearing  for  the  appellants  in  

Criminal Appeal No.434 of 2002 has addressed the Court on all the  

issues discussed by the Trial Court as also by the High Court. The  

learned  senior  counsel  has  reiterated  the  infirmities  in  the  

prosecution evidence as narrated by the Trial Court.  Learned counsel  

submitted  that  the  findings  of  the  Sessions  Court  were  just  and  

reasonable and the High Court ought not to have interfered in the  

appeal. It is settled law that if two views are possible, the one which  

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favours the accused has to be accepted.  That being the position, the  

High  Court  erred  in  upsetting  the  acquittal  and  recording  the  

conviction of the appellants. The submissions made before the Trial  

Court  as  before  the  High  Court  have  been  reiterated.  It  is  not  

necessary to recapitulate the same again.  

42. On the other hand, the learned counsel appearing for the State  

of Kerala has submitted that acquittal of the appellants has been set  

aside by the High Court on a thorough appreciation of the evidence.  

Each and every circumstance relied upon by the Trial Court had been  

answered by the High Court. It is unbelievable that PW2 and PW5,  

who  were  injured  witnesses,  would  falsely  implicate  the  accused.  

According to the learned counsel, only one conclusion was possible  

which has been duly recorded by the High Court.  

43. We  have  considered  the  submissions  made  by  the  learned  

counsel. We may notice here that the High Court has clearly recorded  

the legal proposition involved in this case in the following words:

“Being an appeal against acquittal,  we are  bound  to  see  whether  views  expressed  by  the  learned Sessions Judge are reasonably possible.  If  the views expressed are reasonably possible,  even if another view is possible, appellate court  will not interfere in it.”           

The aforesaid statement of law recognizes the settled position in the  

case of Antar Singh v. State of M.P., (1979) 1 SCC 79:  

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“This Court has repeatedly held that although in an  appeal  against  acquittal,  the  powers  of  the  High  Court in dealing with the case are as extensive as of  the Trial  Court,  but  before  reversing the acquittal,  the High Court should bear in mind that the initial  presumption of the innocence of the accused is in no  way weakened, if not reinforced, by his acquittal at  the trial; and further, the opinion of the Trial Court  which  had  the  advantage  of  observing  the  demeanour of the witnesses, as to the value of their  evidence should not be lightly discarded. Where two  views of  the evidence are  reasonably  possible,  and  the Trial Court has opted for one favouring acquittal,  the High Court should not disturb the same merely  on the ground that if it were in the position of the  Trial Court, it would have taken the alternative view  and convicted the accused accordingly.”       

44. This settled proposition of law has been reiterated by this Court  

in the case of  Chandrappa v. State of Karnataka {2007 (4) SCC  

415}.   In  this  case,  the  provisions  of  Section  378  of  the  Code  of  

Criminal Procedure, 1997 were critically examined.  After adverting to  

numerous decisions of this Court, it was observed as follows:  

 “From  the  above  decisions,  in  our  considered  

view,  the  following  general  principles  regarding  powers of the appellate court while dealing with an  appeal against an order of acquittal emerge:

(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  

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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.

(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.”

From the above, it becomes evident that if two reasonable conclusions  

are  possible  on the  basis  of  the  evidence  on record,  the  Appellate  

Court should not disturb the findings of acquittal. The acquittal re-

enforces and reaffirms the presumption of innocence of the accused.  

The High Court, in fact, makes a reference to the judgment of this  

Court in the case of  Kali Ram v.  State of H.P.,  (1973) 2 SCC 808,  

wherein this Court has observed :

“Another golden thread which runs through the web  of the 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.”

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45. Having noticed the aforesaid principle, the High Court reviewed  

the entire evidence. It reached the conclusions which are opposite to  

the conclusions recorded by the Trial Court.  We are unable to accept  

the  opinion  of  the  High  Court  that  findings  recorded  by  the  Trial  

Court are perverse and manifestly erroneous.  

46. We have very elaborately dealt with the judgments of both the  

courts below, to show that the Trial Court had meticulously examined  

the entire  evidence,  to  record its  conclusions.  We may now briefly  

indicate our reasons for not agreeing with the view expressed by the  

High  Court,  that  the  conclusions reached by  the  Trial  Court  were  

perverse and manifestly erroneous.  

47.   There was a clear cut enmity between PW5 and his family on  

the  one  side  and  the  accused  party  on  the  other  side.  It  was  a  

religious dispute which undoubtedly led to high tension. The majority  

group had gone so far as to encourage the members of its community  

to annihilate PW5 and his family. Prior to the assault, there was a  

meeting  of  the  Muslim community.  The incident  took place  in  the  

dark.  The Trial Court noticed that none of the torches were recovered  

or  produced  by  any  of  the  concerned  persons.  There  was  also  no  

moon light. In such circumstances, the recognition of the six accused  

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may  not  be  possible.  The  Trial  Court  on  this  matter  reached  a  

reasonable  conclusion.  The Trial  Court  had meticulously  examined  

each and every  issue.  The Trial  Court  also  noticed that  there  was  

anticipation of trouble otherwise there was no occasion for PW2 to be  

accompanied  by  PW1 and  Faizal  for  going  to  the  house  of  CW.9,  

brother of PW5.  The Trial  Court also traced the progress of these  

three individuals through the paddy field. Since it was a dark night, it  

was not entirely unbelievable that the torches had been introduced to  

ensure  that  the  accused  could  be  said  to  have  been  identified.  

Surprisingly,  after  Faizal  was  fatally  injured,  PW1  bolts  from  the  

scene of crime. This PW1 is so loyal to PW5 that he has been taking  

undue  advantage  of  being  a  scheduled  caste  and  lodging  false  

complaints against the accused persons under the Scheduled Castes  

and Scheduled Tribes (Prevention of Atrocities) Act, 1989. Yet when  

the other faithful  servant of  PW5 was being brutally  murdered,  he  

decided  not  to  defend  and  ran  away.  The  Trial  Court,  therefore,  

concluded that the behaviour of PW1 was wholly unnatural.  

48.       Moving on to the evidence of PW5, the Trial Court noticed that  

when he went out of the house, he heard lot of noise from the side of  

the paddy field. When he went towards the west of his house, he saw  

some  persons  entering  the  pathways  from  the  paddy  field.  He  

identified the accused persons.  When he enquired from A7 as to what  

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had happened, he was also attacked and injured. He also ran back to  

the  house.  His  attempt  to  contact  his  brother  and  others  on  the  

telephone remained unsuccessful. In the meantime, PW1 and 2 had  

reached the  house of  CW.9.  Subsequently,  Faizal’s  dead body was  

discovered by PW1 and the son of  CW.9. The police arrived at the  

scene.  Although  PW2,  the  injured  witness,  was  available,  his  

statement was not recorded. It was PW1 who gave the F.I. Statement.  

It must be remembered that he had run away when the deceased was  

being assaulted. In such circumstances, we are unable to hold that  

the  conclusions  reached  by  the  Trial  Court  were  unreasonable  or  

perverse.  

49.     The Trial Court meticulously examined the sequence of events  

with regard to the recording of the FIR.   It cannot be held that the  

conclusion  reached  by  the  Trial  Court  that  the  occurrence  report  

could not have been sent earlier, as the same was yet to be prepared,  

is not possible.  The FIR was recorded at 0030 hrs on 31.1.1994. It  

was not received by the Magistrate till 3.30 p.m. on 31.1.1994. The  

Trial  Court  also  noticed  that  the  names  of  the  accused  were  

mentioned in Ex.P.1.  But  they were not  mentioned in the relevant  

column  of  the  inquest  report.  If  the  First  Information  Statement  

Ex.P.1 had been prepared prior to Ex.P.14, the names would surely  

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have  been  mentioned  therein.  These  conclusions  again,  in  our  

opinion, cannot be said to be perverse.

50. The  Trial  Court  also  noticed  that  due to  the  long  enmity  of  

P.W.5  and  his  family  with  the  accused,  the  evidence  had  to  be  

scrutinized carefully.  Faizal  as  well  as PW1 were  the employees  of  

PW5 who had been brought from the State of Karnataka as the local  

labour was not available. The Trial Court noticed that in case there  

had been an assault, as projected by the prosecution, there was no  

reason why PW1 would have been spared while Faizal was brutally  

murdered. After all,  it was P.W.1 who had proceeded against those  

accused while working under PW5 by filing false cases against the  

accused.  The  Trial  Court  also  noticed  that  delay  in  recording  the  

statement of P.W.2 cannot be easily brushed aside. He was conscious  

through all the night and yet the statement was not recorded at the  

initial stage by PW7. He became unconscious only at the time when  

general anesthesia was given to him at 11.40 a.m. the following day.  

51. Mr. Ranjit Kumar also pointed out that PW2 in the witness box  

merely stated that he was tired at the time when P.W.7 had come to  

the house of CW9.  The Trial Court noticed that there was absolutely  

no explanation with regard to the injuries suffered by the accused.  

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This apart, all the witnesses being interested witnesses, their evidence  

could not be believed in the absence of independent corroboration.

52. In our opinion, taking into consideration the entire facts and  

circumstances of the case, it would not be possible to agree with the  

High Court that the findings recorded by the Trial Court were perverse  

or that only one conclusion consistent with the guilt of the accused  

was  possible.  We  are  of  the  opinion  that  the  two  views  being  

reasonably possible the High Court ought not to have interfered with  

the verdict of acquittal recorded by the Trial Court. Consequently, we  

allow the appeal and set aside the judgment of the High Court.

Criminal Appeal No.434 of 2002 and Criminal Appeal Nos. 500-501 of 2002:-

1. In view of the judgment passed in Criminal Appeal No.499 of  

2002, these appeals are also allowed.

…………………………….J.                         [B.Sudershan Reddy]

..……………………………J.              [Surinder Singh Nijjar]   

NEW DELHI, APRIL 13, 2010.

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