REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO. 992 OF 2005

RANGAIAH      … APPELLANT

Versus

STATE OF KARNATAKA    … RESPONDENT

J U D G M E N T

S.B. SINHA, J.

1. Appellant is before us, aggrieved by and dissatisfied with a judgment

of conviction and sentence dated 7.6.2004 passed by a Division Bench of

the High Court  of Karnataka at Bangalore in Criminal Appeal No. 32 of

1999 reversing a judgment of acquittal dated 15.9.1998 in S.C. No. 30/91

passed in his favour by the 1st Additional Sessions Judge, Mysore.   

2. There  is  a  small  village  ‘Rammanahalli’  situate  near  the  town  of

Mysore.   It  has  two  streets  called  ‘Kelaginakeri’  and  ‘Melinakeri’.   A

cinema tent was put therein.  There were two groups in the village residing

in  one  or  the  other  said  streets.  One  group  intended  the  owner  of

cinema/theatre to exhibit  films starring Dr. Rajkumar and the other group

asked them to exhibit the films starring Sri Vishnuvardhan.  They had been

asking  the  proprietor  of  the  theatre  to  release  the  films  in  which  their

favourite stars were acting. The occurrence took place at about 8.00 a.m. on

9.12.1990.   

3. The prosecution case is as under:

Maruchhaiah, the deceased, had gone out of his house to have a cup

of  tea.   A clash  between two groups  of  people  from the aforementioned

streets ‘Kelaginakeri’ and ‘Melinakeri’ took place.  During the said clash,

appellant  is  said to have stabbed the deceased with a knife when he was

sitting near ‘Garadimane’ (Gymnesium).  Maruchhaiah was taken to K.R.

Hospital at Mysore.  He died on the next day, i.e. on 10.12.1990 at about

5.00 p.m. Appellant is  said to have also caused injury to Madhu (P.W.6)

when  he  tried  to  intervene.   The  said  occurrence  is  said  to  have  been

witnessed  by  P.W.  6-  Madhu,  P.W.1-Maruchhaiah  son  of  the  deceased

Maruchhaiah and several others.  

P.W. 1-son of the deceased was also known as Maruchhaiah. A first

information report was lodged at the Mysore South Police Station, stating:

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“On 9.12.1990 at 10 A.M. my father Maruchhaiah was sitting on the paial of Garadimane and at that time  Rachimallaiah  and  Rangaiah  assaulted  my father and Rangaiah stabbed my father below the left  shoulder.   There  is  a  dispute  between  one street  Keelanakeri  street  and  for  this  they  have injured  my father.   At  that  time  Chennaiah  and Mahadeva’s  wife  were  present.   I  pray  to  take action.”

(emphasis supplied)

4. Deceased allegedly made a dying declaration, which was recorded by

P.W. 23 -J.S. Srikanta Murthy, Investigating Officer in the presence of duty

doctor, Dr. Jagannath C.W.21.  Dr. Jagannath, however, was not examined.  

P.W. 23, in his deposition stated:

“He told before me in the presence of the Medical Officer C.W. 21 that on 9.12.1990 at 10.00 a.m. while he was sitting on the pial of his house, some people  came  in  group  and  when  he  questioned those  persons  why they  were  creating  galata,  at that time, accused came and held him and stabbed him with knife.  One Rachimallaiah (subsequently deleted  in  the charge  sheet)  assaulted   him with club and stabbed with knife, as a result of the said injury,  he  fell  bleeding  and  his  son  P.W.  1 admitted him to the hospital.  He said that due to ill-will, accused (Rangaiah) stabbed him with the knife.”

(emphasis supplied)

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5. P.W. 23, in his deposition, had accepted that he did not obtain any

certificate  from the doctor  that  the deceased was both in  a mentally  and

physically fit condition to give a dying declaration.  Admittedly, no judicial

officer was asked to record a dying declaration although the deceased after

receiving the injury was alive for about 32 hours.   

6. P.W.3  Dr.  Hemavathy  examined  Maruchhaiah,  the  deceased  and

found only one cut injury 1 ½ cm x ½ cms on the left side of the posterior

exillery fold.  She found ‘bleeding present’; air bubble was also seen from

the wound.  

7. P.W. 1- Maruchhaiah  is the complainant.  He is son of the deceased.

According to him, the people of ‘Kelaginakeri’ started chasing ‘Melinakeri’

people.  Since they came near his house, he also started running towards

Rama Mandir.   At  that  time  (i.e.,  while  running),  he  saw  the  appellant

stabbing his father below on the left shoulder near arm pit.  Later appellant

and Madhu (P.W. 6) started fighting.  Madhu snatched the knife from the

hands of appellant and in the process he injured his right hand finger.  The

knife was stained with blood.   According to this witness, there is a pial in

the Rama Mandir.  In his cross-examination, P.W. 1 stated that it cannot be

seen from the road as to who is sitting on the pial.  He saw his father at 7.30

a.m.  He took his father to the Hospital and then came back to the police

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station.  He found Rachimallaiah there, who was detained for having injured

the appellant.  People from ‘Melinakeri’ street were also present. In the First

Information  Report  (FIR),  he  did  not  disclose  that  Madhu  was  an  eye-

witness to the occurrence.  

8. The other important witness examined on behalf of the prosecution is

Madhu (P.W.6).  He is said to have suffered injuries in the incident.   

Allegedly, on the day of incident at about 7.00 a.m., the deceased had

asked him to bring a cup of tea from the hotel which is at a distance of about

50 feet  from the  place of  occurrence.   The incident  took place when he

brought  tea  for  the  deceased.   According  to  him,  appellant  stabbed  the

deceased in the left arm pit whereafter he snatched the knife from him and

in this process he injured his fingers and when he questioned the appellant,

he ran away.   

He kept the said knife with himself.  He, for reasons best known to

him, handed over the knife to the police authorities on the next day of the

incident.  The knife did not contain any blood stain.  Although a seizure

memo must have been prepared on the date of incident, the police had taken

his signature only on the next day.  He was injured on the date of incident

but he went to the hospital  for his treatment only on the third day of the

occurrence.  According to him, Rachimallaiah was not seen near the scene

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of  occurrence.   He  accepted  that  prior  to  the  incident  police  van  was

stationed in the village in the ‘Kelaginakeri’area and it was shifted to the

scene of occurrence thereafter.   

9. Several  other  witnesses  purported  to  be  eye-witnesses  to  the

occurrence were also examined.  P.W-12 Shivana, P.W.-13 Mahadeva and

P.W.-14 Mallaiah were treated as hostile.   P.W.10 and P.W.11 being the

daughter and son of the deceased did not speak anything incriminating the

appellant.

10. Indisputably, appellant also suffered injuries.  Although appellant and

Rachimallaiah were named as the assailants of Maruchhaiah, a charge sheet

was filed only against the appellant.  No reason therefor was disclosed.  No

explanation was offered.

11. Charges were framed under Sections 302 & 324 of the Indian Penal

Code for committing murder of Maruchhaiah and causing injury to P.W.6

Madhu  with  a  knife.   Before  proceeding  to  consider  the  evidence  of

witnesses examined on behalf of the prosecution, we may place on record

that a day prior to the said occurrence, i.e. on 8.12.1990, a quarrel had taken

place  between  the  two  groups.   Police  Personnel  were  stationed  in  the

village.  Two constables were standing a little away from the place where

the incident had allegedly taken place.  No police personnel was examined.

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Why they could not prevent the occurrence has not been disclosed.  If they

were near the scene of occurrence, they must have witnessed the same.  At

least,  they  should  have  reached  the  place  of  occurrence  immediately

thereafter.

12. We  may  at  this  juncture  notice  the  following  post-mortem report

dated 11.12.1990:

“ I. EXTERNAL APPEARANCE

1. Condition  of  Subject  :  emaciated, decomposed, etc. 2. Wounds: Position, Size, character. 3. Bruises: Position, Size, nature 4. Mark of Ligatures on neck, dissection.

It was the dead body of an old aged male, aged  about  70  years  of  normal  built  and nourishment,  body  was  cold,  height  170  cms, Hairs on the head were short 1 cm. long with a 5 cm. long pig  tail  on the  back of  the head.   The whole  body  upto  inguinal  region  including  the serotum swollen and crepitations felt on palpation. Eyelids  swollen,  cornea  clear,  pupils  dilated conjunctivae-congested.   Rigor  mortis  was established  in  the  lower  limbs  and  passing  off from  upper  limbs.   P.M.  staining  could  not  be made out due to dark complexion.  

External injuries: 1) Stitched stab wound 2 cm  x  0.5  cm.  x  7.5  cm  (as  far  as  it  could  be probed) situated over the left side of chest, 6 cm outer  to  nipple  at  2.30  o’  clock  position,  beam below mid armpit over the 3rd intercostals region. It had three stitches.   It  was horizontally placed. On dissection, the wound had pierced the muscles, entered through the 3rd intercostals space, piercing

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the pleura it had entered the surface of upper lobe of left lung as scratch 0.75 cm long.

2. A vertically place situated stab would 2 cm x  0.5  cm  x  7.5  cms  in  size  with  two  stitches, situated  over  the  outer  fold  of  left  arm pit  then entering  the  1st intercostals  space  obliquely piercing the pleura.  

The  margins  of  the  above  injuries  were clean cut, upper and were wide, inner and in No. (1) and lower and in No. (2) were clean cut.  The left  thorasic  cavity  contained  250  C.C.  blood. Surgical  emphysema  present  pressing  over  the chest.  

3. Needle puncture mark over the inner aspect of left ankle.  

All the above injuries were ante-mortem in nature.

…………….. ………………

Opinion as to cause of death:

Death  was  due  to  Respiratory  failure  as  a result  of surgical emphysema.  Consequent upon stab injuries to left side of chest by a single edged weapon.”

13. The  learned  Sessions  Judge  recorded  the  judgment  of  acquittal,

principally on the following findings:

(i). The scene of occurrence has not  been firmly established insofar as

according  to  the  deceased  he  was sitting  on  the  pial  of  his  house

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whereas according to P.W. 1 and P.W. 6, the incident took place near

the Garadimane.

(ii) P.W.1 in his complaint as also the deceased in his dying declaration

categorically stated that there were two cut  injuries  and one injury

caused by club by the said Rachimallaiah but only one stab injury was

found.  Although in  the FIR both the  appellant  and Rachimallaiah

were said to have assaulted and caused stab injuries but only one stab

injury was found and P.W. 6 had snatched the knife which had caused

blood injury but no blood stain was found on the knife.   

(iii) Prosecution case was that the deceased wanted to have a cup of tea

and when P.W. 6 was taking one cup of tea from the hotel near the

place of the incident and hardly he was at a distance of 5 feet away

from the deceased, the alleged incident took place.   

(iv) P.W. 13 Mahadeva, the owner of the tea shop, however, categorically

stated that he opened his shop at 5.00 a.m. and closed by 7.00 a.m. as

no milk was available.  He reopened his shop at 10.00 a.m.  

(v) P.W. 14- Mallaiah although claimed that at the time of the incident he

was also stabbed by the accused but neither any investigation in that

regard was made nor any additional charge against  the accused for

having stabbed this  witness  was  framed.  The prosecution  has  not

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offered any explanation for the said lapse.  P.W. 1 or P.W. 6 however

did not make any reference to P.W.14  at all.  The report submitted by

the F.S.I did not make any reference to P.W.14.

(vi) Dr.  Channegowda,  P.W. 2 in  his  cross-examination  stated  that  the

name of the assailant was mentioned in the Accident Register to be

one Chikkavenkati.  It is nobody’s case that appellant is also called

Chikkavenkati.  

(vii) Although  P.W.  11  Alaiah,  another  son  of  the  deceased  in  whose

presence dying declaration is said to have been made, stated about the

presence  of   his  sister  P.W.10  Maniyamma  at  the  time  of  dying

declaration, in her deposition she merely stated that some people had

told her that appellant had stabbed her father.  However, she did not

know who they were.    

14. The  High  Court  however,  reversed  the  said  judgment  of  acquittal

opining that the findings of the learned Sessions Judge were perverse.   

The High Court relied upon the evidence of P.Ws. 1 and 6, to hold:  

“We  have  gone  thoroughly  through  the  entire cross-examination of these three witnesses and we do  not  find  any  material  discrepancies  in  the evidence  of  these  witnesses  to  the  fact  that  the

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deceased  was  near  Garadimane  and  that  he  had requested  P.W.  6  to  get  a  cup  of  tea  from the nearby.”

It was stated:

(i) P.W. 6’s version could not have been disbelieved as the accused

had made a suggestion that he had filed a complaint against him

which shows the presence of the accused during the incident.   

(ii) The trial court committed an error in disbelieving the evidence of

P.W. 11 on the ground that he had not disclosed the fact that the

deceased told  him that  it  is  the accused  who stabbed him with

knife to the police when his statement was recorded under Section

161 of the Code of Criminal Procedure.  

(iii) There is no reason to disbelieve the dying declaration although Dr.

Jagannath, C.W.21 was not examined.   

(iv) Non-examination of C.W. 21 does not mitigate the veracity of the

dying declaration.   

(v) As  regards  non-examination  of  another  Dr.  Jayanth  who  was

present at the time of dying declaration and who had not issued

any certificate when the dying declaration was recorded by P.W.23

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and who merely endorsed as “before me signed”, the High Court

observed that the same was merely a rule of cause.   

(vi) As the injury suffered by the accused is of minor nature, the same

was not required to be explained.  

In regard to seizure of knife by P.W. 23, it was held in para 28:

“…Even assuming that M.O.3 may not have been the weapon used the facts and circumstances of the case  cannot  be  doubted  specially  the  dying declaration which is corroborated by the evidence of PWs 6, 11 and 27.  The evidence on record also discloses  that  in  the  dying  declaration  the deceased  has  stated  that  not  only  the  present accused but also another person Rachimallaiah has also assaulted him with knife.  But Rachimallaiah was later on given up by the police.  It is true that the prosecution has not sent up Rachimallaiah for trial  and the charge sheet  was filed only against the accused.  But that cannot be a reason to acquit the  respondent  when  the  evidence  on  record pointed out that he had participated in committing the offence.  The reasoning given by the trial court that the name of P.W. 6 does not find a place in the complaint  Ex.  P1 is  also  of  no  consequence when  it  has  been  held  in  several  cases  by  the Hon’ble Supreme Court as well as High Court that it is not necessary to mention the names of all the eye witnesses in the complaint.”

15. Mr. Girish Anantmurthy, learned counsel appearing on behalf of the

appellant,  would  in  support  of  the  appeal  contend  that  the  High  Court

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committed a serious error in reversing the well-reasoned judgment of the

trial  court.  Reliance  has  been  placed  on  the  decision  of  this  Court  in

Himachal Pradesh vs. Sukhvinder Singh [2004 AIR SCW 968].   

It was further submitted that as the purported dying declaration was

recorded at 1.00 p.m. when all were present, the dying declaration itself was

made clearly as a result of tutoring and was not a free and voluntary one.

Reliance in this behalf has been placed on  Mohan Lal & ors.  vs.  State of

Haryana [(2007) 9 SCC 151].

16. Mr.  Sanjay  R.  Hegde,  learned  counsel  appearing  on  behalf  of  the

State, on the other hand, would contend:

(i) The trial court is not justified in disbelieving the evidence of

eye-witness which clearly proved that the accused was present

at the time of occurrence.  

(ii) The prosecution case could not have been thrown out by the

learned Sessions Judge only on the ground that no charge sheet

has been filed against the Rachimallaiah.  

(iii) The trial  court  committed a serious  error  in  disbelieving the

evidence of PW 6 on the premise that Rangaiah was also called

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Chikkavenkati  although  in  the  Accident  Register

Chikkavenkati was shown to be the father of the appellant.  

Reliance  has  been  placed  by  Mr.  Hegde  on  State  of  Punjab vs.

Karnail Singh [(2003) 11 SCC 271) wherein this Court opined:  

“6.  There  is  no  embargo  on  the  appellate  Court reviewing  the  evidence  upon  which  an  order  of acquittal is based. Generally, the order of acquittal shall  not  be  interfered  with  because  the presumption of innocence of the accused is further strengthened  by  acquittal.  The  golden  thread which runs through the web of administration of justice in criminal  cases  is  that  if  two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused  should  be  adopted.  The  paramount consideration  of  the  Court  is  to  ensure  that miscarriage of justice is prevented. A miscarriage of  justice  which  may arise  from acquittal  of  the guilty  is  no  less  than  from the  conviction  of  an innocent.  In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence even where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.  [See  Bhagwan Singh and Ors.  v. State of M.P.(2002) 4 SCC 85]. The principle to be  followed  by  appellate  Court  considering  the appeal  against  the  judgment  of  acquittal  is  to interfere  only  when  there  are  compelling  and substantial reasons for doing so. If the impugned judgment  is  clearly  unreasonable,  it  is  a compelling reason for interference.”

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Reliance has been placed by Mr. Hegde also on Devender Pal Singh

vs.  State of NCT of Delhi & anr. [(2002) 5 SCC 234], wherein this Court

held:

“53. Exaggerated devotion to the rule of benefit of doubt must not nurture fanciful doubts or lingering suspicions  and  thereby  destroy  social  defence. Justice cannot be made sterile on the plea that it is better to let a hundred guilty escape than punish an innocent.  Letting  the  guilty  escape  is  not  doing justice according to law. [See Gurbachan Singh v. Satpal  Singh (1990)  1  SCC 445].  Prosecution  is not required to meet any and every hypothesis put forward  by  the  accused.  [See  State  of  U.P. v. Ashok Kumar Srivastava (1992) 2 SCC 86].”

17. Before we advert to the respective contentions made by the learned

counsel,  we  may  record  the  well  known  principles  laying  down  the

parameters of reversing a judgment of acquittal.   

A judgment of acquittal  passed should not be interfered with when

two possible views are possible.  We, therefore, are required to consider as

to whether the view taken by the learned Sessions Judge was a probable

one.  The fact that the incident  took place is  not  in dispute.  What is  in

dispute  is  the  manner  in  which  the  same  took  place  and  whether  the

appellant had participated therein.  It was not the prosecution case that the

appellant  was  on  inimical  terms  with  the  deceased  or  his  family.   Two

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groups of residents of the same village had been quarrelling with each other.

An incident took place within a day prior to the date of occurrence. Police

personnel were posted.  A police van was also stationed.  If the prosecution

case  is  to  be  believed,  two  constables  were  standing  near  the  place  of

occurrence.   It  is  beyond anybody’s comprehension as to why when one

group  of  people  were  chasing  another  group  of  people  they  did  not

intervene and why despite a police van being stationed, the deceased should

have  been  shifted  in  the  hospital  in  an  auto  rickshaw.   The  place  of

occurrence  also  is  not  fixed.   According  to  the  prosecution  witness,

deceased had gone out of his house to take a cup of tea near the hotel of

P.W. 13 Mahadeva.  P.W.13, however, said that he closed his shop at 7.00

a.m. Why more than two hours’ time was taken for getting a cup of tea for

the  deceased  is  again  beyond  anybody’s  comprehension.   Whereas

according to the dying declaration the deceased was sitting on a pial of his

house, where the incident is said to have taken place; according to P.Ws 1

and 6, the place of occurrence was near the ‘Garadimane’.   

18. Both  in  the  FIR  as  also  in  the  dying  declaration,  the  name  of

Rachimallaiah was already stated but no charge sheet was filed against him.

No explanation has been offered as to why he was not charge-sheeted.   

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No explanation has also been offered as to why the dying declaration

could  not  be  recorded  by a  judicial  officer.   The doctor  on  the  basis  of

whose  certificate,  P.W.  23  –  Investigating  Officer  recorded  the  dying

declaration, was not examined.   

At the time of recording of the dying declaration, the deceased was

surrounded by his own people.  Veracity of the said statement, therefore,

cannot be said completely beyond doubt.  

In Mohan Lal & ors. vs. State of Haryana [(2007) 9 SCC 151], it was

held:

“10. Though a dying declaration is entitled to great weight,  it  is  worthwhile to note that the accused has no power of cross- examination. Such a power is essential for eliciting the truth as an obligation of oath could be. This is the reason the Court also insists that the dying declaration should be of such nature as to inspire full confidence of the Court in its correctness. The Court has to be on guard that the statement of the deceased was not as a result of either  tutoring  or  prompting  or  a  product  of imagination.  The Court  must  be further  satisfied that the deceased was in a fit state of mind after a clear  opportunity  to  observe  and  identify  the assailant.  Once  the  Court  is  satisfied  that  the declaration was true and voluntary, undoubtedly, it can  base  its  conviction  without  any  further corroboration.  It  cannot  be  laid  down  as  an absolute  rule  of  law  that  the  dying  declaration cannot form the sole basis of conviction unless it is  corroborated.  The  rule  requiring corroboration is merely a rule of prudence. This Court has laid down  in  several  judgments  the  principles

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governing  dying  declaration,  which  could  be summed up as under as indicated in Smt. Paniben v.  State of Gujarat (1992) 2 SCC 474: (SCC pp. 480-81, paras 18-19)  

(i) There is neither rule of law nor of prudence that dying  declaration  cannot  be  acted  upon  without corroboration. [See  Munnu Raja v.  State of M.P. (1976) 3 SCC 104]

(ii)  If  the  Court  is  satisfied  that  the  dying declaration  is  true  and  voluntary  it  can  base conviction on it, without corroboration. [See State of U.P.  v.  Ram Sagar Yadav (1985) 1 SCC 552 and  Ramawati  Devi v.  State  of  Bihar (1983)  1 SCC 211]

(iii)  The  Court  has  to  scrutinize  the  dying declaration  carefully  and  must  ensure  that  the declaration is not the result of tutoring, prompting or imagination. The deceased had an opportunity to observe and identify the assailants and was in a fit  state  to  make  the  declaration.  [See  K. Ramachandra Reddy v. Public Prosecutor (1976) 3 SCC 618]

(iv) Where the dying declaration is suspicious, it should  not  be  acted  upon  without  corroborative evidence.  [See  Rasheed Beg v.  State  of  Madhya Pradesh (1974) 4 SCC 264]

(v)  Where  the  deceased  was  unconscious  and could  never  make  any  dying  declaration,  the evidence with regard to it  is  to be rejected.  [See Kake Singh v. State of M.P.(1981 Supp. SCC 25)]

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(vi)  A  dying  declaration  which  suffers  from infirmity cannot form the basis of conviction. [See Ram Manorath v. State of U.P. (1981) 2 SCC 654]

(vii)  Merely  because  a  dying  declaration  does contain the details as to the occurrence, it is not to be  rejected.  [See  State  of  Maharashtra v. Krishnamurthi Laxmipati Naidu (1980 Supp. SCC 455)]

(viii)  Equally,  merely  because  it  is  a  brief statement,  it  is  not  to  be  discarded.  On  the contrary,  the  shortness  of  the  statement  itself guarantees  truth.  [See  Surajdeo  Oza. v.  State  of Bihar (1980 Supp. SCC 769)].

(ix) Normally the Court in order to satisfy whether the deceased was in a fit mental condition to make the  dying  declaration  looks  up  to  the  medical opinion.  But where the  eye-witness said that  the deceased was in a fit and conscious state to make the dying declaration, the medical opinion cannot prevail. [See Nanahau Ram. v. State of M.P. (1988 Supp. SCC 152)].

(x) Where the prosecution version differs from the version as given in the dying declaration, the said declaration  cannot  be  acted  upon.  [See  State  of U.P. v. Madan Mohan (1989) 3 SCC 390].

(xi) Where there is more than one statement in the nature of  dying declaration,  one first  in point  of time must be preferred. Of course, if the plurality of  dying  declarations  could  be  held  to  be trustworthy and reliable, it has to be accepted. [See Mohanlal  Gangaram  Gehani v.  State  of Maharashtra (1982) 1 SCC 700]”

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19. In this case, the prosecution version is totally different from the dying

declaration.   The alleged participation  of  Rachimallaiah  had been totally

ignored by the High Court.  It could not have been done for the purpose of

judging  the  truthfulness  or  otherwise  of  the  dying  declaration.   The

statement of the deceased made in his dying declaration was required to be

considered from the said perspective.  

The High Court committed an error in proceeding on the basis that

although  M.O.3  might  not  have  been the weapon used but  the appellant

could be convicted only on the basis of the statements made by P.Ws 6, 11

and 27.   If M.O.3 was not  the weapon of attack,  the statement of P.W.6

which has been supported by P.W.1 that he had snatched the said knife from

the hands of the appellant could not have been believed.  The presence of

P.W. 6 also becomes doubtful, as he had not been named as eye-witness in

the FIR.  As the FIR was lodged after the deceased was taken to hospital

and the treatment started, it is also difficult to believe P.W. 1 who testified

that he was an eyewitness to the role of P.W.6 and the fact that he was also

injured in the process.  The High Court has also not assigned any reason for

holding that as to when the statement of P.W. 11 was recorded by the police,

is  of  not  much  significance.   The  High  Court  has  not  adverted  to  the

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question  that  although  in  the  FIR  and  the  dying  declaration  both  the

appellant and Rachimallaiah had been said to have assaulted the deceased,

P.W.1 in his deposition as also other prosecution witnesses attributed the

overt act only on the part of the appellant herein.  

20. The  High  Court,  in  our  opinion,  did  not  apply  the  right  test  for

reversing  a  judgment  of  acquittal.   The findings  of  the  learned  Sessions

Judge were probable.  Such a view was possible.  By no standard, the views

of the learned Sessions Judge can be said to be wholly unacceptable.  The

parameters laid down by this Court in regard to a judgment of acquittal are

well known. We may, however, refer to a few precedents in this behalf.   

21. In Chandrappa & ors. vs. State of Karnataka [(2007) 4 SCC 415], this

Court held:  

“42. From the above decisions, in our considered view,  the  following  general  principles  regarding powers of 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;

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(3) Various expressions, such as, 'substantial  and compelling reasons', 'good and sufficient grounds', 'very strong circumstances', 'distorted conclusions', 'glaring mistakes', etc. are not intended to curtail extensive  powers  of  an  appellate  Court  in  an appeal  against  acquittal.  Such  phraseologies  are more in  the  nature  of  'flourishes  of  language'  to emphasize 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 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.”

22. In Gowrishankara Swamigalu  Vs. State of Karnataka and Anr. [2008

(4) SCALE 389], this Court noticed:

“29. We  may  at  this  juncture  notice  a  few precedents operating in the field.

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In  Jagdish  &  Anr. v.  State  of  Madhya  Pradesh [2007 (11) SCALE 213], this Court held:

“12. The High Court while dealing with an appeal  from a  judgment  of  acquittal  was, thus,  required  to  meet  the  aforementioned reasonings  of  the  learned  Trial  Judge. There cannot be any doubt whatsoever that irrespective of the fact that the High Court was dealing with a judgment of acquittal, it was open to it to re-appreciate the materials brought on records by the parties, but it is a well-settled principle of law that where two views  are  possible,  the  High  Court  would not ordinarily interfere with the judgment of acquittal. [See Rattan Lal v. State of Jammu & Kashmir – 2007 (5) SCALE 472].   

14. It is unfortunate that the High Court while  arriving  at  the  aforementioned conclusion did not pose unto itself the right question.  In the event, it intended to arrive at a finding different from the one arrived at by the Trial Court, it was obligatory on its part  to  analyze  the  materials  on  record independently.   The  High  Court  was  also required  to  meet  the  reasoning  of  the learned  Trial  Judge.   If  the  learned  Trial Judge  upon  appreciation  of  the  evidence arrived  at  a  conclusion  that  the  time  of occurrence  disclosed  in  the  First Information  Report  was  not  correct inasmuch whereas the occurrence is said to have taken place at 08.00 a.m. but in fact it took place much prior thereto, it could not be opined that the First Information Report was  lodged  within  an  hour  of  the incident…”

 It was noticed:

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“17. Yet  again  in  Kallu  alias  Masih  and Others v.  State  of  M.P.  [(2006)  10  SCC 313], this Court opined :

“8.  While  deciding  an  appeal  against acquittal, the power of the Appellate Court is  no  less  than  the  power  exercised  while hearing appeals against conviction. In both types of appeals, the power exists to review the  entire  evidence.  However,  one significant  difference  is  that  an  order  of acquittal  will  not be interfered with, by an appellate court,  where the judgment of  the trial court is based on evidence and the view taken is reasonable and plausible. It will not reverse the decision of the trial court merely because  a  different  view  is  possible.  The appellate  court  will  also  bear  in  mind that there  is  a  presumption  of  innocence  in favour  of  the  accused  and  the  accused  is entitled  to  get  the  benefit  of  any  doubt. Further  if  it  decides  to  interfere,  it  should assign  reasons  for  differing  with  the decision of the trial court.”

[See  also  Rattanlal (supra)  and  Ramappa Halappa  Pujar  &  Others v.  State  of Karnataka – 2007 (6) SCALE 206].”

[See also Chandrappa & Ors. v. State of Karnataka 2007  (3)  SCALE 90  and  Haji  Khan v.  State  of U.P. [(2005) 13 SCC 353]

Recently in  Abdul Gafur & Ors. v.  The State of Assam [2007 (13) SCALE 801], a Bench of this Court held:

“10. The accused persons are not strangers and  were  practically  neighbours  of  the informant  and his  family.  The High Court noted that there was no intention to falsely

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implicate  accused  persons  because  of enmity and there was no reason as to why dignity of two young girls would be put at stake by alleging rape. It is to be noted that in fact rape was alleged but the Trial Court found  that  there  was  no  material  to substantiate the plea of rape. The evidence is  totally  inconsistent  and  lacks  credence. The High Court's observations were clearly based  on  surmises  and  contrary  to  the factual scenario. The High Court has noted that the evidence of PWs. 1,2,3,5 & 8 stand fully corroborated by the medical evidence. Significantly,  on  consideration  of  the evidence  of  PW  4,  it  is  clear  that  the evidence of this witness is clearly contrary to  the  medical  evidence.  To  add  to  the confusion,  it  is  noted  that  the  High Court recorded  as  finding  that  appellant  Abdul Gafur was absconding. As a matter of fact the  evidence  of  Investigating  Officer  (in short  the  'I.O')  shows that  he had arrested Abdul  Gafur  on  the  date  the  First Information Report (in short the 'FIR') was lodged.  Unfortunately  the  High  Court  has merely referred to certain conclusions of the Trial  court  without  analyzing the evidence and  various  submissions  made  by  the appellants. To add to the vulnerability of the prosecution  version,  the  FIR  was  lodged long after the incident and in fact law was already  set  on  motion  after  the  telephonic message had been received.  

11.  The  aforesaid  infirmities  in  the background of admitted animosity between the parties  renders  the prosecution  version unacceptable. The Trial Court and the High Court did not analyse the evidence correctly and acted on mere surmises and conjectures.

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That being so, the appellants deserve to be acquitted, which we direct.”

The  High  Court  unfortunately  failed  to  bear  in mind  the  aforementioned  legal  principles.   The High Court misdirected itself at various stages.  It was wholly unfair to the appellant.”

23. In Ghurey Lal vs.  State of U.P.  [2008 (10) SCALE 616], this Court

held:   

“76.  On marshalling  the  entire  evidence  and the documents on record, the view taken by the trial court  is  certainly  a  possible  and  plausible  view. The  settled  legal  position  as  explained  above  is that  if  the  trial  court's  view  is  possible  and plausible, the High Court should not substitute the same by its own possible views. The difference in treatment  of  the  case  by  two  courts  below  is particularly noticeable in the manner in which they have  dealt  with  the  prosecution  evidence.  While the  trial  court  took  great  pain  in  discussing  all important  material  aspects  and  to  record  its opinion on every material and relevant point,  the learned Judges  of  the  High Court  have  reversed the judgment of the trial court without placing the very substantial reasons given by it in support of its conclusion. The trial court after marshalling the evidence  on  record  came to  the  conclusion  that there were serious infirmities in the prosecution's story.  Following  the  settled  principles  of  law,  it gave the benefit  of  doubt  to  the accused.  In the impugned  judgment,  the  High  Court  totally ignored the settled legal position and set aside the well reasoned judgment of the trial court.

77.  The  trial  court  categorically  came  to  the finding that when the substratum of the evidence of  the  prosecution  witnesses  was  false,  then  the

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prosecution  case  has  to  be  discarded.  When  the trial court finds so many serious infirmities in the prosecution  version,  then  the  trial  court  was virtually left with no choice but to give benefit of doubt  to  the  accused  according  to  the  settled principles of criminal jurisprudence.

78. On careful analysis of the entire evidence on record, we are of the view that the reasons given by the High Court  for reversing the judgment of acquittal  is  unsustainable  and contrary to  settled principles of law. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the  trial  court.  An  acquittal  by  the  trial  court should  not  be interfered  with unless  it  is  totally perverse or wholly unsustainable.

24. For the  aforementioned reasons,  the impugned judgment  cannot  be

sustained.   It  is  set  aside  accordingly  and  judgment  of  the  trial  court

restored.  The appeal is allowed.  The appellant who is in custody is directed

to be released forthwith unless wanted in connection with any other case.

……………….…..………….J. [S.B. Sinha]

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..………………..……………J. [Cyriac Joseph]

New Delhi; December 12, 2008

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