The Principles involved in Appeal against Acquittal and Supreme Court Guidelines
(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.
Lord Russel Views :
Lord Russell said in Sheo Swarup1 “… 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.
The Full Text of Judgement :
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.
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
@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 fail ed to prove the offence against the accused persons and, accordingly, acquitted
them.
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 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. 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 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 Swarup1,
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.
11. As early as in 1952, this Court in Surajpal
Singh2 while 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
Kanu3, Madan Mohan Singh4, Atley5 , Aher Raja Khima6, Balbir Singh7, M.G.
Agarwal8, Noor Khan9, Khedu Mohton10, Shivaji Sahabrao Bobade11, Lekha Yadav12,
Khem Karan13, Bishan Singh14, Umedbhai Jadavbhai15, K. Gopal Reddy16, Tota Singh17, Ram Kumar18, Madan Lal19, Sambasivan20,
Bhagwan Singh21, Harijana Thirupala22, C. Antony23, K. Gopalakrishna24, Sanjay
Thakran25 and Chandrappa26. 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 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 Lal27, 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 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 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 crossexamination 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 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.
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.
J.(R.M. Lodha)
J.(Shiva Kirti Singh)
New Delhi,
April 09, 2014.
Cases
discussed :
1 Sheo Swarup v. King Emperor [AIR 1934 Privy
Council 227]
2 Surajpal Singh v. State; [AIR 1952 SC 52]
3 Tulsiram Kanu v. State;[AIR 1954 SC 1]
4 Madan Mohan Singh v. State of U.P.; [AIR
1954 SC 637]
5 Atley v. State of U.P.; [AIR 1955 SC 807]
6 Aher Raja Khima v. State of Saurashtra;
[AIR 1956 SC 217]
7 Balbir Singh v. State of Punjab; [AIR 1957
SC 216]
8 M.G. Agarwal v. State of Maharashtra; [AIR
1963 SC 200]
9 Noor Khan v. State of Rajasthan; [AIR 1964
SC 286]
10 Khedu Mohton v. State of Bihar; [(1970) 2
SCC 450],
11 Shivaji Sahabrao Bobade v. State of
Maharashtra; [(1973) 2 SCC 793]
12 Lekha Yadav v. State of Bihar; [(1973) 2
SCC 424]
13 Khem Karan v. State of U.P.; [(1974) 4 SCC
603]
14 Bishan Singh v. State of Punjab; [(1974) 3
SCC 288]
15 Umedbhai Jadavbhai v. State of Gujarat;
[(1978) 1 SCC 228]
16 K. Gopal Reddy v. State of A.P. ; [(1979)
1 SCC 355]
17 Tota Singh v. State of Punjab [(1987) 2
SCC 529]
18 Ram Kumar v. State of Haryana; [1995 Supp
(1) SCC 248]
19 Madan Lal v. State of J&K; [(1997) 7
SCC 677]
20 Sambasivan v. State of Kerala; [(1998) 5
SCC 412]
21 Bhagwan Singh v. State of M.P.; [(2002) 4
SCC 85]
22 Harijana Thirupala v. Public Prosecutor,
High Court of A.P.; [(2002) 6 SCC 470]
23 C. Antony v. K. G. Raghavan Nair; [(2003)
1 SCC 1]
24 State of Karnataka v. K. Gopalakrishna;
[(2005) 9 SCC 291]
25 State of Goa v. Sanjay Thakran; [(2007) 3
SCC 755]
26 Chandrappa v. State of Karnataka; [(2007)
4 SCC 415]
27 Ghurey Lal v. State of U.P.; [(2008) 10
SCC 450]
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