IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APEPAL NO. 493 OF 2001

State of Punjab ……Appellant

Versus

Kulwant Singh @ Kanta        ……Respondent

J U D G M E N T

Dr. ARIJIT PASAYAT, J.

1. Challenge by the State of Punjab in this appeal is to the

acquittal of the respondent from the charge of commission of

offence  punishable  under  Section  302  of  the  Indian  Penal

Code, 1860 (in short the ‘IPC’). The learned Sessions Judge,

Faridkot,  had convicted  the respondent  for  the  said  offence

and awarded death sentence. In view of the award of the death

sentence, reference was made to the High Court under Section

366  of  the  Code  of  Criminal  Procedure,  1973 (in  short  the

‘Code’).

2. Prosecution version as unfolded during trial is as follows:

Law was set  on motion on the  basis  of  the  statement

made by Parminder Singh (PW4) who stated that he is running

a  marriage  palace  known  as  Chahal  Marriage  Palace  on

Malout Road, at Muktsar. Ashok Kumar Lalji Tiwari and Sham

Sunder sons of Sager Ram, residents of Gangoli Khurd, Distt.

Gaunda [U.P.] and Kulwant Singh alias Kanta son of Mohinder

Singh  were  employed  by  him as servants  in  that  marriage

palace. Gurpal Singh son of Mukhtiar Singh, was employed as

Chowkidar in the said marriage palace. There was a function

in the marriage  palace  on the  evening of  26.8.1996.  Manjit

Singh Mistri, resident of Malout alongwith other labourers was

constructing sheds in that marriage palace for the last many

days. After the conclusion of the function he went to his house

and told his servants to look after the property of the marriage

palace. On 27.8.1996 at about 7.00 A.M. Manjit Singh Mistri

2

came to his house and told him that smell was coming- out of

the rooms of the marriage palace. Hearing this he alongwith

his brother Parminder Singh and Mistri Manjit Singh went to

the marriage palace and saw that smoke was coming out of

the marriage palace. He alongwith Raminder Singh and Manjit

Singh  Mistri  saw  from the  back  side  door  of  the  marriage

palace that the dead bodies of Ashok Tiwari and Sham Sunder

(hereinafter  referred  to as  deceased  by name)  were burning

there. They also saw that pieces of glass were scattered in the

lobby  of  the  marriage  palace  and  Lalji  Tiwari  (hereinafter

referred  to  as  deceased  by  name)  was  lying  dead  in  the

adjoining room and there were mark of injuries on his head

and the blood was coming out of the injuries. When they came

out,  they  saw  that  Gurpal  Singh  Chowkidar  was  lying

unconscious in the grassy ground of the marriage palace and

his head was stained with blood. A vehicle was arranged and

Gurpal  Singh was sent to  the  Civil  Hospital,  Muktsar,  with

Manjit Singh. He along with his brother Raminder Singh went

inside and when Kulwant Singh moved a little, thinking that

he was alive, they picked him up and got him admitted in the

3

Civil  Hospital.  He  left  his  brother Raminder  Singh with the

dead bodies. He suspected that the offence was committed by

respondent-Kulwant Singh alias Kanta due to some grievance.

There was no injury on the body of Kulwant Singh and three

persons  had  been  murdered  and  the  fourth  was  lying  in

serious condition, as such it appeared that it was an act of

Kulwant Singh. After  the registration of  the case S.I.  Beant

Singh,  who  was  posted  as  S.H.O.  in  Police  Station  City

Muktsar, at that time, alongwith ASI Ravel Singh, ASI Gurmel

Singh and  other  officials  and Parminder  Singh went  to  the

place of occurrence. Raminder Singh (PW5) was found present

near the dead bodies.  Inquest reports of Lalji  Tiwari,  Ashok

Kumar and Sham Sunder were prepared. There were hairs in

the right hand of the dead body and piece of cloth in the left

hand of Lalji Tiwari. The dead bodies along with the requests

were sent for post mortem examination through ASI Gurmel

Singh. S.I. Beant Singh inspected the place of occurrence. One

bed sheet stained with blood, blood stained earth were picked

up from the bed room where the dead body of Lalji Tiwari was

lying. These were made into parcels and sealed with the seal

4

bearing mark 'BS' and the parcels were taken into possession.

Pieces of glass were picked up from the lobby and they were

made into parcel and were taken into possession. Ashes were

picked  up  from the  room where  the  dead  bodies  of  Sham

Sunder and Ashok Kumar were lying. These were made into

parcel and sealed with the seal bearing impression 'BS' and

were  taken  into  possession.  Burnt  mat  was picked  up  and

made  into  parcel  and  taken  into  possession.  Blood  stained

earth was picked up from the place where the Chowkidar was

lying. The same was made into parcel and sealed with the seal

bearing mark ‘BS’ and taken into possession. Blood stained

ashes were also picked up and  made into parcel and sealed

with the seal bearing mark 'BS'. Rough site plan of the place of

occurrence  was  prepared.  Statements  of  the  PWs  were

recorded. Then Beant Singh S.I. went to the Hospital. Accused

Kulwant  Singh,  who  was  admitted  in  the  hospital  was

interrogated  and  on  interrogation  he  disclosed  that  he  had

kept concealed one iron rod,  his shirt and pant stained with

blood underneath the empty cement bags lying in the store of

marriage  palace  and he  could  get  the  same  recovered.  The

5

disclosure statement of the accused was recorded. Then the

accused was got discharged from the Hospital. After that the

accused  in  accordance  with  his  disclosure  statement  got

recovered an iron rod, pant and shirt stained with blood. A

separate parcel of the iron rod and another parcel of the pant

and  shirt  were  prepared  and  the  same  were  taken  into

possession. Before making the parcel of the shirt a piece was

taken out of the same and was taken into possession. After

the post mortem examination ASI Gurmel Singh produced the

belongings  of  the  deceased  and  these  were  taken  into

possession after making into parcel. On return to the Police

Station the case property was deposited with the M.H.C. On

30.8.1996  the  accused  was  taken  to  the  Hospital  where  a

sample of his hairs was taken by Dr. Meena Jagga, made into

a parcel  and sealed  by the  doctor  and the  said parcel  was

taken into possession. On return to the Police Station the case

property  was  deposited  with  the  M.H.C.  The  parcels  of  the

hair,  pant,  shirt  of  the  accused,  chadar,  blood  which  were

picked up from near the bed, burnt pieces of cloth and the soil

picked up from near the place where Gurpal Singh was lying

6

and pieces of cloth of the shirt and the parcel of iron rod were

sent  to  the  Forensic  Science  Laboratory  and  the  reports

regarding the same were received. Statements of the PWs were

recorded  and  after  the  completion  of  the  investigation  the

accused was sent up for trial.  

The  charge  against  the  accused  was  for  the  alleged

commission of offence punishable under Section 302 I.P.C. for

having committed the murders of Sham Sunder, Lalji Tiwari

and Ashok Kumar and under Section 307 I.P.C. for causing

injuries  to  Gurpal  Singh  was  framed  on  16.1.1997.  The

accused pleaded innocence and claimed trial.

The  prosecution  to  prove  its  case  against  the  accused

examined Dr. P.N. Girdhar (PW1), Dr. Meena Jagga  (PW2), Dr.

Madan  Gopal  Sharma  (PW3),  Parminder  Singh  (PW4),

Raminder  Singh   (PW5),  Gurpal  Singh  (PW6),  Baljit  'Singh

(PW7), Beant Singh S.I.  (PW8), Kulwant Chand M.H.C. (PW9),

Constable Harbans Lal as (PW10), Constable Balwindar Singh

(PW11)  and  ASI  Gurmel  Singh  (PW12).  The  reports  of  the

7

Forensic Science Laboratory Ex.P.GG, Ex.P.HH, Ex.P.JJ and

Ex.P.KK have also been tendered in evidence.

The trial Court found that the evidence on record which

was substantial in nature clearly established the guilt of the

accused as there were three persons who had lost their lives

and, therefore, the death sentence was awarded.  In appeal,

the High Court upset the conviction and directed acquittal.  

3. Learned counsel  for the appellate-State  submitted  that

this  was  a  case  where  the  accusations  were  established

against the accused and, therefore,  the High Court was not

justified  in interfering  with the  well-reasoned  and elaborate

judgment of the trial Court.

4. In response, learned counsel for the accused-respondent

supported the judgment of the High Court.

8

5. It is to be noted that the pivotal witness was PW-6. He

claimed to be an eye-witness. In that sense,  this was not a

case where prosecution relied on circumstantial evidence. The

High Court found that this witness was examined after about

a month of the incident. The only explanation offered was that

the  witness  was hospitalized  and was lying in  unconscious

state for about one week. Even if that be so, no explanation

was  offered  as  to  why  after  PW-6  was  released  from  the

hospital  he  was  not  examined  for  about  three  weeks.  The

investigating  officer  who  could  have  thrown  light  on  this

aspect  was not  examined.  No reason was indicted  for  such

non-examination. The other relevant factor is that the alleged

incident took place around 12 midnight. The information was

lodged  at about 8.30 a.m. PW-4 stated that he learnt about

the incident from Manjit Singh Mistri  at about 7.00 a.m. and

when he went to the place of occurrence he found dead bodies

of two persons. From the back side of the hall he found that

dead  bodies  of  the  two  deceased  persons  were  burnt.  He

noticed this aspect alongwith his brother Raminder Singh and

Manjit  Singh  Mistri.  The  respondent-accused  was  lying  on

9

scattered pieces of gross in the lobby in front of the adjoining

bed room. Blood was oozing from his injured head. On coming

out he found Gurpal Singh (PW-6) lying unconscious on the

grassy  ground.  He  made  arrangements  for  sending  Gurpal

Singh to the Civil  Hospital,  Muktsar  alongwith Majjit  Singh

Mistri.  He went inside  and when he saw that the  accused-

respondent was alive, he was also sent to the Civil Hospital,

Muktsar.  After  that  he  claimed  to  have  gone  to  the  Police

Station to lodge the report. The High Court found that there

was abnormal delay in lodging the FIR. Learned counsel for

the  appellate-State  submitted  that  the  informant  Parminder

Singh (PW4) was told by Manjit Singh around 7.00 a.m. and

some  time  was  spent  for  taking  the  injured  person  to  the

hospital  and  thereafter  the  FIR  was  lodged  and,  therefore,

there was in fact no delay. It is to be noted that the High Court

found that the aforesaid Manjit Singh was not examined as a

witness. His evidence would have thrown considerable light as

to whether and when he informed the informant as claimed.

He is supposed to have taken Gurpal Singh to the hospital.

His non-examination has been rightly taken note of to be a

10

vulnerable factor by the High Court. There are certain other

aspects  which  need  to  be  noted.  PW-6  was  taken  to  the

hospital. The doctor attending to him sent information to the

SHO of the concerned Police Station at 7.15 a.m. According to

the evidence  of  the doctor,  he  was taken to the hospital  at

7.15 a.m. and immediately thereafter the information was sent

to the Police Station. Interestingly, the respondent was taken

to the hospital at 8.30 a.m. It has not been explained by the

prosecution  as  to  why  there  was  delay  in  sending  the

respondent-accused  to  the  hospital.  Here  again,  doctor

attending to him sent information to the Police Station. It was

accepted before the High Court that before lodging of the FIR

by  the  informant,  the  intimations  given  by  the  police  had

reached  the  police  station.  The  effect  of  these  informations

was  not  considered  by  the  trial  Court.  Whether  they

constituted FIR or not is another question.  The third factor

which has weighed with the High Court to direct acquittal was

the non-explanation of the injuries on the accused. Though,

non-explanation of the minor injuries could not be a factor to

make the prosecution version vulnerable in all  cases, but if

11

the  injuries  were  of  serious  nature  the  prosecution  has  to

explain that aspect.  

6. In  the  instant  case,  the  evidence  of  the  doctor  who

examined the accused clearly stated that the injuries were on

account  of  dragging  him  on  surface  littered  with  broken

glasses. In that background the injuries on the accused had to

be explained.

7. Considering  the  scope  of  Section  417  Cr.P.C.  (old)

(corresponding to Section 378 of present Cr.P.C.), the Privy

Council  in  Sheo  Swarup  &  others Vs.  King  Emperor AIR

1934 PC 227,  held that  the Court  gives  full  power  to the

High Court to review at large the evidence upon which order

of acquittal is founded and to reach the conclusion whether

an order of acquittal needs to be reversed or not upon that

evidence,  hence  no  limitation  should  be  placed  on  that

power unless found expressly stated  in  the Code.  However,

the  Privy  Council  put  certain  principles  as  a  matter  of

caution to be observed by the appellate court stating that the

High  Court should and will always give proper weight and

12

consideration to such matters before reaching its conclusion

upon facts, namely- (1) the view of the trial court as to the

credibility of the witnesses; (2) the presumption of innocence

in  favour  of  the  accused  and  that  presumption  is  not

weakened by the fact that he has been acquitted at his trial;

(3) the right of the accused to the benefit of any doubt and

(4) the slowness of an appellate- court in disturbing a finding

of fact arrived by a Judge who had the advantage of seeing

the witnesses. To summarize the Privy Council observed:

".…..To  state this however is only to say that the  High  Court  in  its  conduct  of  the  appeal should and will  act in accordance with rules and principles  well  known and recognized in the administration of justice."

8. The aforesaid view was reiterated by the Privy Council in

Nur Mohammad V. Emperor AIR 1954 PC 151 and affirmed by

this  Court  also  in  Prandas V.  State AIR  1954  SC 36. The

judgment  of  this  Court  was  rendered  by  a  Bench  of  six-

Hon'ble  Judges  of  this  Court.  A  three-Judge  Bench  of  this

Court  in  Aher  Raja  Khima v.  State  of  Saurashtra (1955 (2)

13

SCR 1285) observed that it is not enough for the High Court to

take  a  different  view  of  the  evidence;  there  must  also  be

"substantial and compelling reasons"  for holding that the trial

Court  was  wrong.  The  words  "substantial  and  compelling

reasons"  observed  in  Khima's case  (supra)  sought  to  be

interpreted subsequently as if only in exceptional cases High

Court can interfere. The matter came up before this  Court in

Sanwat  Singh Vs.  State  of  Rajasthan  (1961  (3)  SCR  120),

where a three-Judge Bench of this Court noted that the words

"substantial and compelling reasons" used in certain decisions

have created some difficulty in understanding the scope of the

said words. Explaining the same this Court held as under:  

"This  Court  obviously  did  not and could  not add  a  condition  to  s.417  of  the  Criminal Procedure Code.  The words were intended to convey  the  idea  that  an  appellate  court  not only  shall  bear  in  mind  the  principles  laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong. "

9. It concluded as under:

14

"The foregoing discussion yields the  following results (1) an appellate court has full power to review the evidence  upon which the order of acquittal  is  founded;  (2)  the  principles  laid down  in  Sheo Swarup's case afford a correct guide for the appellate  court's  approach to a case in disposing of such  an  appeal;  and  (3) the  different  phraseology  used  in  the judgments  of  this  Court,  such  as.  (i) "substantial and compelling reasons", (ii) "good and  sufficiently  cogent  reasons",  and  (iii) strong reasons" are not intended to curtail the undoubted power of an, appellate court in an appeal  against  acquittal  to  review  the  entire evidence  and to come to its own  conclusion; but  in  doing  so  it  should  not  only  consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts; but should also express those reasons in its judgment  which  lead  it  to  hold  that  the acquittal was not justified. "

10. A Constitution Bench of this Court again reviewed all the

aforesaid judgments in M.G. Agarwal vs. State of Maharashtra

(1963 (2) SCR 405) and reiterating the principles laid down in

Sheo Swarup (supra),  it affirmed the view taken by the this

Court in  Sanwat Singh (supra) and held  "it is not necessary

that before reversing a judgment of acquittal, the High Court

15

must necessarily characterised the findings recorded therein

as perverse."

11. In  Shivaji  Sahabrao Bobade Vs.  State  of  Maharashtra

(1973) 2 SCC 793 it was held that "in law there are no fetters

on the plenary  power  of  the  appellate  Court  to  review  the

whole  evidence  on which the order  of  acquittal  is  founded

and, indeed, it has a duty to scrutinize the probative material

de novo, informed, however, by the weighty thought that the

rebuttable innocence attributed to the accused having been

converted  into  an  acquittal  the  homage  our  jurisprudence

owes to individual liberty constrains the higher court not to

upset  the  holding  without  very  convincing  reasons  and

comprehensive considerations. "

12. In K. Gopal Reddy Vs. State of Andhra Pradesh 1979 (2)

SCR  363  reiterating  the  principles  as  mentioned  in  Sheo

Swarup (supra), the this Court observed as under:

16

"............... Occasionally  phrases  like manifestly  illegal',  'grossly unjust',  have been used to describe the orders of acquittal which warrant  interference.  But,  such  expressions have  been  used  more,  as  flourishes  of language, to emphasise the reluctance of the Appellate  Court  to interfere  with an order  of acquittal  than  to  curtail  the  power  of  the Appellate Court  to review the entire evidence and to come to its own conclusion .....If.  two reasonably  probable  and  evenly  balanced views  of  the evidence are possible,  one must necessarily  concede  the  existence  of  a reasonable  doubt.  But,  fanciful  and  remote possibilities  must  be  left  out  of  account.  To entitle an accused person to the benefit  of a doubt arising from the possibility of a duality of  views,  the  possible  view  in  favour  of  the accused  must  be  as  nearly  reasonably probable as that against him….”

13. There has not been any change and in many subsequent

decisions, i.e.,  Ramesh Babu Lal Doshi Vs.  State of Gujarat,

JT 1996(6)  SC 79,  George Vs.  State of Kerala AIR 1998 SC

1376, Jaswant Singh Vs. State of Haryana, (2000) 4 SCC 484,

Bhagwan Singh and others Vs.  State of M.P. J7 2002(3) SC

387  and  Kallu Vs.  State  of  M.P. JT  2006(12)  SC  586,  the

aforesaid  views  have  been  reiterated.  This  Court  in

17

Chandrappa  and Ors. v.  State  of  Karnataka (2007  (4)  SCC

415),  having  a  complete  retrospect  on  all  the  earlier

judgments,  has  culled  down,  in  para  41,  the  following

principles  regarding  the  power  of  the  appellate  court  while

dealing with an appeal against an order of acquittal:

(1) An  appellate  Court  has  full  power  to review, appreciate 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 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 reluctant 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

18

under  the  fundamental  principle  of  criminal jurisprudence  that  every  person  should  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  it  further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."   

14. In our considered view the acquittal as directed by the

High Court cannot be faulted. Even though it may be possible

hypothetically to take a different view on the evidence, we are

not inclined to interfere with the view of the High Court.  The

appeal is, therefore, dismissed.              

……………………………………J. (Dr. ARIJIT PASAYAT)

……………………………… ……J.

(P. SATHASIVAM)

19

……………………………… ……J.

(Dr. MUKUNDAKAM SHARMA)

New Delhi, July 16, 2008

20