SC: Guidelines on appeals against acquittal

Posted on 11 April 2014 by Vineet Kumar

Court

Supreme Court of India

Brief

The bench comprising of Justice R.M. Lodha and Justice Shiva Kirti Singh issued the following guidelines to the appellate courts in dealing with appeals against acquittal: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

Citation

Surajpal Singh v. State; [AIR 1952 SC 52] Tulsiram Kanu v. State;[AIR 1954 SC 1] Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637] Atley v. State of U.P.; [AIR 1955 SC 807] Aher Raja Khima v. State of Saurashtra; [AIR 1956 SC 217]

Judgement

REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL APPEAL NO.551 OF 2011

Muralidhar @ Gidda & Anr. … Appellants

Versus

State of Karnataka … Respondent

WITH

CRIMINAL APPEAL NO.791 OF 2011

AND

CRIMINAL APPEAL NO.1081 OF 2011

JUDGMENT

R.M. LODHA, J.

Page 1

These three criminal appeals arise from the common

judgment and, therefore, they were heard together and are being disposed

of by the common judgment.

2. The statement (Ex.P-22) recorded by the police on 17.08.2002

between 9.55 P.M. and 10.20 P.M. at K.R. Hospital, Mandya triggered the

prosecution of the appellants and one Swamy. Ex.P-22 is in Kannada,

which in English translation reads:

"The statement of Pradeep son of Swamygowda, 28

years, Vakkaligaru by community, agriculturist

residing at Majigepura village, Srirangapatna Taluk.

Today at about 8.30 p.m. night, I was sitting in front

of shaving shop by the side of shop of Javaregowda

on K.R.S. – Majigepura Road along with Vyramudi,

Prakash and Umesh. At that time Naga, S/o

Ammayamma, Jagga S/o Sentu Kumar's sister,

Gunda, Gidda, S/o Fishari Nanjaiah, Swamy, Manju

and Hotte Ashoka and others who were having old

enmity assaulted me by means of chopper, long on

my hand, head, neck and on other parts of the body

with an intention to kill me and they have assaulted

Umesh who was with me. Vyramudi said do not kill

us and went away. Prakash ran away. Please take

action against those who have attempted to kill me."

3. After registration of the First Information Report (Exhibit P-5)

on the basis of the above statement made by Pradeep which has become

dying declaration in view of his death, the investigation commenced. In the

course of investigation, 37 witnesses were examined. The investigating

officer, on completion of investigation, submitted challan against Naga @

Page 2

Bagaraju (A-1), Jaga @ Santhosh Kumar (A-2), S. Sathish @ Gunda (A-3),

Muralidhar @ Gidda (A-4), Swamy @ Koshi (A-5) and Manju (A-6).

4. The concerned Magistrate then committed the accused to the

court of Sessions for trial. The Court of Sessions Judge, Fast Track

Court–I, Mandya conducted the trial against A-1 to A-6 for the offences

punishable under Sections 302, 307, 144, 148 read with Section 149 of the

Indian Penal Code, 1860 (for short, "IPC"). The prosecution examined 37

witnesses of which PW-4 (Umesha), PW-5 (Prakash) and PW-15

(Vyramudi) were produced as eye-witnesses. Exhibit P-22 is recorded by

PW-30 (Rajashekar) on the oration of PW-36 (Kodandaram, PSI) in the

presence of PW-25 (Dr. Balakrishna).

5. The three eye-witnesses PW-4, PW-5 and PW-15 have turned

hostile to the case of prosecution and have not supported the prosecution

version at all. In the circumstances, the only evidence that has become

significant is the dying declaration (Ex.P-22). The trial court by its

judgment dated 28.09.2004 on consideration of the entire oral and

documentary evidence reached the conclusion that prosecution had failed

to prove the offence against the accused persons and, accordingly,

acquitted them.

Page 3

6. The State of Karnataka preferred an appeal before the

Karnataka High Court against the judgment of the Fast Track Court-I,

Mandya acquitting the accused. The High Court on hearing the public

prosecutor and the counsel for the accused vide its judgment dated

21.10.2010 maintained the acquittal of A5 (Swamy) but convicted A1 to

A4 and A6 for the offences under Section 302 read with Section 149 IPC

and sentenced them to undergo imprisonment for life with fine and

defaulting sentence. The High Court has also convicted them for the

offence under Section 148 IPC and they were sentenced to suffer rigorous

imprisonment for one year. Both sentences have been ordered to run

concurrently. It is from this judgment that these appeals, by special leave,

have arisen.

7. The High Court has convicted the appellants on the basis of

dying declaration alone, as in its view the dying declaration is credible and

genuine. In this regard, the reasoning of the High Court is broadly

reflected in paragraphs 16 and 17 which reads as follows:

"16. Having heard both sides and carefully gone

through the evidence of the witnesses and on

reappreciation of the evidence we find that Ex. P22

which is the dying declaration of the deceased has

been recorded naturally and truthfully. PW25 –

Doctor has categorically stated that the injured was

in a position to speak and give statement and further

he has signed Ex.P.22. Under these circumstances,

it could be gathered that PW25 – the Medical Officer

Page 4

was not only a person present when Ex. P.22 was

recorded, but also asserted that the patient was in a

position to give such statement. However, on a

careful scrutiny of Ex.P.22, it is seen that the name

of Swamy – Accused No.5 has been added

subsequently and there is no initial of any officer by

the side of the name of Swamy and the colour of the

ink differs from the other handwriting. In view of the

foregoing discussions we hold that the dying

declaration of deceased Pradeep – Ex. P.22 is

genuine and has been recorded by PW30 –

Rajshekhar in the presence of PW25 – Dr.

Balakrishan when the deceased was in fit condition

to give statement and hence, a conviction can be

based on the said dying declaration.

17. So far as the capacity of the deceased to

narrate the incident regarding the cause of his

injuries is concerned, on perusal of Ex. P.3 the

accident register it is clear that Ex.P.3 was brought

into existence at 9.30 p.m. and in Ex.P3 it is

mentioned that the assault was by six persons and

the names of all the six persons are mentioned

therein without any over writing. The over writing

pertains only to the presence of Vyramudi and it is

the contention of the learned counsel for the

accused that over the name of Vyramudi name of

Pradeep is written. In Ex.P.23 – requisition letter it

is seen that signature of Vyramudi is separately

taken by the doctor as brought by him and,

therefore, the presence of either Vyramudi or

Pradeep in the hospital at the time when the

deceased was brought to the hospital cannot be

disputed at all."

8. The trial Court, however, held that it was not safe to act on the

dying declaration (Ex.P-22). The trial court on consideration of Ex.P-22

and the evidence of PW-25, PW-36 and PW-30 concluded that the time of

recording Ex. P-22 did not inspire confidence and the credibility of Exhibit

Page 5

P-22 had not been established to the satisfaction of the court and

conviction cannot be based on Exhibit P-22 and the deposition of PW-36,

PW-25 and PW-30.

9. The only question that arises for our consideration in these

appeals is, whether the High Court was justified in upsetting the view of the

trial court on re-appreciation of the evidence of PW-25, PW-30 and PW-36

and Exhibit P-22.

10. Lord Russell in Sheo Swarup

, highlighted the approach of the

High Court as an appellate court hearing the appeal against acquittal.

Lord Russell said, "… the High Court should and will always give proper

weight and consideration to such matters as (1) the views of the trial Judge

as to the credibility of the witnesses; (2) the presumption of innocence in

favour of the accused, a presumption certainly not weakened by the fact

that he has been acquitted at his trial; (3) the right of the accused to the

benefit of any doubt; and (4) the slowness of an appellate court in

disturbing a finding of fact arrived at by a Judge who had the advantage of

seeing the witnesses." The opinion of the Lord Russell has been followed

over the years.

Sheo Swarup v. King Emperor [AIR 1934 Privy Council 227]

Page 6

11. As early as in 1952, this Court in Surajpal Singh

dealing with the powers of the High Court in an appeal against acquittal

under Section 417 of the Criminal Procedure Code observed, "……….the

High Court has full power to review the evidence upon which the order of

acquittal was founded, but it is equally well settled that the presumption of

innocence of the accused is further reinforced by his acquittal by the trial

court, and the findings of the trial court which had the advantage of seeing

the witnesses and hearing their evidence can be reversed only for very

substantial and compelling reasons."

12. The approach of the appellate court in the appeal against

acquittal has been dealt with by this Court in Tulsiram Kanu

Mohan Singh

Noor Khan

Khem Karan

, Atley

, Aher Raja Khima

, Khedu Mohton

, Bishan Singh

Surajpal Singh v. State; [AIR 1952 SC 52]

Tulsiram Kanu v. State;[AIR 1954 SC 1]

, Balbir Singh

, Shivaji Sahabrao Bobade

, Umedbhai Jadavbhai

Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637]

Atley v. State of U.P.; [AIR 1955 SC 807]

Aher Raja Khima v. State of Saurashtra; [AIR 1956 SC 217]

Balbir Singh v. State of Punjab; [AIR 1957 SC 216]

M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200]

Noor Khan v. State of Rajasthan; [AIR 1964 SC 286]

Khedu Mohton v. State of Bihar; [(1970) 2 SCC 450],

Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793]

Lekha Yadav v. State of Bihar; [(1973) 2 SCC 424]

Khem Karan v. State of U.P.; [(1974) 4 SCC 603]

Bishan Singh v. State of Punjab; [(1974) 3 SCC 288]

Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC 228]

K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC 355]

while

, Madan

, M.G. Agarwal

, Lekha Yadav

, K. Gopal Reddy

Page 7

Tota Singh

, Ram Kumar

Harijana Thirupala

and Chandrappa

, Madan Lal

, C. Antony

, Sambasivan

, K. Gopalakrishna

, Bhagwan Singh

, Sanjay Thakran

. It is not necessary to deal with these cases

individually. Suffice it to say that this Court has consistently held that in

dealing with appeals against acquittal, the appellate court must bear in

mind the following: (i) There is presumption of innocence in favour of an

accused person and such presumption is strengthened by the order of

acquittal passed in his favour by the trial court, (ii) The accused person is

entitled to the benefit of reasonable doubt when it deals with the merit of

the appeal against acquittal, (iii) Though, the power of the appellate court

in considering the appeals against acquittal are as extensive as its powers

in appeals against convictions but the appellate court is generally loath in

disturbing the finding of fact recorded by the trial court. It is so because

the trial court had an advantage of seeing the demeanor of the witnesses.

If the trial court takes a reasonable view of the facts of the case,

interference by the appellate court with the judgment of acquittal is not

Tota Singh v. State of Punjab [(1987) 2 SCC 529]

Ram Kumar v. State of Haryana; [1995 Supp (1) SCC 248]

Madan Lal v. State of J&K; [(1997) 7 SCC 677]

Sambasivan v. State of Kerala; [(1998) 5 SCC 412]

Bhagwan Singh v. State of M.P.; [(2002) 4 SCC 85]

Harijana Thirupala v. Public Prosecutor, High Court of A.P.; [(2002) 6 SCC 470]

C. Antony v. K. G. Raghavan Nair; [(2003) 1 SCC 1]

State of Karnataka v. K. Gopalakrishna; [(2005) 9 SCC 291]

State of Goa v. Sanjay Thakran; [(2007) 3 SCC 755]

Chandrappa v. State of Karnataka; [(2007) 4 SCC 415]

Page 8

justified. Unless, the conclusions reached by the trial court are palpably

wrong or based on erroneous view of the law or if such conclusions are

allowed to stand, they are likely to result in grave injustice, the reluctance

on the part of the appellate court in interfering with such conclusions is fully

justified, and (iv) Merely because the appellate court on re-appreciation

and re-evaluation of the evidence is inclined to take a different view,

interference with the judgment of acquittal is not justified if the view taken

by the trial court is a possible view. The evenly balanced views of the

evidence must not result in the interference by the appellate court in the

judgment of the trial court.

13. In Ghurey Lal

, the Court has culled out the principles relating

to the appeals from a judgment of acquittal which are in line with what we

have observed above.

14. Now, we shall examine whether or not the impugned judgment

whereby the High Court interfered with the judgment of acquittal is justified.

15. Of the 37 witnesses examined by the prosecution, PW-4, PW-

5 and PW-15 are the eye-witnesses but they have turned hostile to the

case of prosecution. The first medical examination of the deceased

Pradeep and so also the injured Umesha was done by PW1 (Dr. Latha) at

about 9.30 P.M. on 17.08.2002. She has not certified that Pradeep was in

Ghurey Lal v. State of U.P.; [(2008) 10 SCC 450]

Page 9

fit state to make any statement. PW-25 (Dr. Balakrishna) at the relevant

time was Assistant Professor of Surgery at K.R. Hospital where deceased

Pradeep was taken immediately after the incident. At about 9.40 p.m. on

17.08.2002, PW-36 (Kodandaram, PSI) gave a memo to PW-25 stating

that one patient (Pradeep) was admitted in the hospital and requested him

to verify as to whether the patient was in a position to give statement. In

his cross-examination, PW-25 has stated that at 9.35 P.M., he saw the

patient (Pradeep) when he was kept in operation theatre of casualty for

emergency treatment. He has also deposed that a group of doctors was

providing treatment to him. His deposition does not establish that Pradeep

was under his treatment. The recording of Pradeep's statement by a

constable (PW-30) as dictated by PW-36 (PSI) in this situation raises many

questions. The trial court found this absurd. It is the prosecution version

that PW-30 has recorded Ex.P-22 as dictated by PW-36 (PSI). Thus,

Ex.P-22 is not in actual words of the maker. The trial court in this

background carefully considered the evidence of PW-25, PW-30 and PW-

36 along with Ex.P-22. The trial court has noted that PW-25 failed to

confirm in his testimony that he was treating deceased Pradeep when he

was brought to the hospital. Moreover, PW-25 admitted over-writing with

regard to the time written on Ex.P-22. The trial court also observed that

Page 10

though there was lot of bleeding injuries found on the person of Pradeep,

PW-25 did not say anything about the quantity of loss of blood.

16. Dealing with the testimony of PW-30, the trial court has

observed that in his cross-examination, he has admitted that he did not

record the statement in the words of the maker (Pradeep) but wrote the

statement as dictated by PW-36. Moreover, PW-30 in his cross-

examination had admitted that at the time Pradeep was attended to by the

doctors, he was not inside.

17. Then, in respect of Ex.P-22, the trial court observed that the

names of accused Gunda (A-3) and Swamy (A-5) appear to have been

inserted in different ink later on.

18. On a very elaborate consideration of the entire evidence, the

trial court was of the view that Ex.P-22 did not inspire confidence and the

credibility of Ex.P-22 has not been established to the satisfaction of the

court. Accordingly, the trial court held that conviction of the accused

persons cannot be based on Ex.P-22 and the deposition of PW-36, PW-25

and PW-30.

19. The sanctity is attached to a dying declaration because it

comes from the mouth of a dying person. If the dying declaration is

recorded not directly from the actual words of the maker but as dictated by

Page 11

somebody else, in our opinion, this by itself creates a lot of suspicion about

credibility of such statement and the prosecution has to clear the same to

the satisfaction of the court. The trial court on over-all consideration of the

evidence of PW-25, PW-30 and PW-36 coupled with the fact that there

was over-writing about the time at which the statement was recorded and

also insertion of two names by different ink did not consider it safe to rely

upon the dying declaration and acquitted the accused for want of any other

evidence. In the circumstances, in our view, it cannot be said that the view

taken by the trial court on the basis of evidence on record was not a

possible view. The accused were entitled to the benefit of doubt which was

rightly given to them by the trial court.

20. The High Court on consideration of the same evidence took a

different view and interfered with the judgment of acquittal without properly

keeping in mind that the presumption of innocence in favour of the

accused has been strengthened by their acquittal from the trial court and

the view taken by the trial court as to the credibility of Ex.P-22 and the

evidence of PW-25, PW-30 and PW-36 was a possible view. The High

Court while upsetting the judgment of acquittal has not kept in view the

well established principles in hearing the appeal from the judgment of

acquittal.

Page 12

21. Accordingly, the appeals are allowed. The impugned

judgment is set aside. The judgment of the court of Sessions Judge, Fast

Track Court–I at Mandya dated 28.09.2004 is restored. The appellants

shall be set at liberty forthwith, if not required in any other case.

New Delhi,

April 09, 2014.

…..………………………….J.

(R.M. Lodha)

…..………………………….J.

(Shiva Kirti Singh)

__._,_.___

View attachments on the web

receive alert on mobile, subscribe to SMS Channel named "aaykarbhavan" [COST FREE] SEND "on aaykarbhavan" TO 9870807070 FROM YOUR MOBILE. To receive the mails from this group send message to aaykarbhavan-subscribe@yahoogroups.com

Visit Your Group