HON'BLE MR. JUSTICE G R MOOLCHANDANI Judgment / 04/07/2017 The State of Rajasthan has preferred instant appeal in order to assail the acquittal of accused - Kallu son of Gorchhi, by caste Mev, resident of Berla, Tehsil Tijara District Alwar. The accused-respondent Kallu was tried by the Court of Additional District & Sessions Judge, Kishangarhbas, District Alwar. The said Court, vide its impugned judgment dated 28.08.1992, acquitted accused-respondent of the charges formulated against him for offences punishable under Sections 302 and 307 of Indian Penal Code. The first charge stated that the appellant on 30.06.1990 at about 04:00 A.M. had committed murder of Hakam in the house of Deenmohammad (PW-3) in the Village Fukardika and, thus, committed offence punishable under Section 302 of Indian Penal Code. The second charge stated that on the said date, the appellant armed with axe had caused injury to Fajrabi (PW-1) and, thus, committed offence punishable under Section 307 of Indian Penal Code. (2 of 7) [CRLA-68/1993] Fajrabi (PW-1), daughter of Ayub Khan (PW-5) and wife of present appellant Kallu stated in the Court that at about one year & two months ago, the appellant armed with axe had caused murder of his son - Hakam. She further stated that Kallu caused her injuries and ran away from the spot. She came in a bus to her native place. Kallu, along with his father - Gorkhi came to the parental Village of Fajrabi and took away her son Hakam. She further stated in the Court that after three-days, Kallu left Hakam in the house of her parents. The witness in the Court deposed that she was sleeping in the chowk along with her parents. Kallu was also sleeping there. In the morning, Kallu caused injuries with the axe to her son. Her son raised noise and then she woke up. Kallu had also caused injuries to her. In cross-examination, this witness (PW-1) denied that she had instituted a criminal complaint in the Court of Magistrate, Tijara stating that her parents after marriage with Kallu intended to sell her at another place. In cross-examination, further this witness stated that her cot was at a distance of two-three steps from the cot of her mother and Kallu was also sleeping along with them. In her statement (Exhibit- D/1), this witness admitted that it is not recorded that an electric bulb was emitting light. Lastly, in cross-examination, this witness stated that

मुझे नहीं पता कि कल्लू के कोई चोट आयी हो मैंने तो उसे भागते हुए देखा था।

The prosecution, in all examined eight witnesses. Kashmiri (PW-2), mother of Fajrabi (PW-1) stated that Hakam was aged about five months. This witness in the Court deposed that when she woke up, accused was causing injuries to Fajrabi. She stated that Hakam was caused injuries before she woke up. In the Court, this witness specifically stated that her son Azad was also sleeping with accused Kallu. She further stated that when she woke up, (3 of 7) [CRLA-68/1993] accused was causing injuries to Fajrabi and no injuries were caused to Hakam in her presence. Deenmohammad (PW-3), uncle of Fajrabi (PW-1) stated that accused after causing injuries to Hakam ran away from the spot. Sherkhan (PW-4) stated that from the Dhani of Deenmohammad (PW-3), he heard noises The witness stated that the place of occurrence was at a distance of 100 steps of his house. Ayub (PW-5) is father of Fajrabi (PW-1). Dr. Vinod Kumar (PW-6) proved injuries on the person of Fajrabi (PW-1) However, Doctor stated that on the day of occurrence at about 04:00 P.M., he had examined Kallu. This witness further stated that Kallu was given emergency treatment. In the injury report of Kallu, Doctor had noted six incised wounds. In cross-examination, Doctor admitted that the injuries on the person of Kallu, accused-respondent cannot be self suffered. We need not notice the statements of the other witnesses, who had participated in the investigation. The trial Judge, primarily for non-explanation of the injuries on the person of accused - Kallu has recorded his acquittal. The trial Judge gave following findings, in its impugned judgment dated 28.08.1992 :-

इस प्रकार इस प्रकरण के दोनों ही तफ्तीा करने वाले अधिकारी पी.ड. 7 जीवन सिंह व पी. ड. 8 रामस्वरूप के बयान अयूब के शरीर पर चोटें आने व अयुब द्वारा मुलजिम के पीछे भागने बाबत अन्य गवाहान के बयानों से मेल नहीं खाते है उनके कथनों में विरोधाभास है। अभियुक्त कल्लू के शरीर पर 6 चोटें आई है। चोट प्रतिवेदन पी. 7 में चोटें अंकित है। लेकिन किसी भी गवाह ने इन चोटों के बारे में नहीं बताया है। अभियुक्त के शरीर पर आई चोटों के कारण अभियुक्त काफी दिनों तक बेहोा रहा है और अस्पताल में भर्ती भी रहा है। इसके बावजूद भी इन चोटों का कोई स्पष्टीकरण अभियोजन पक्ष द्वारा नहीं दिया गया है। आलाय जर्ब कुल्हाड़ी भी बरामद नहीं की गई है। एफ.एस.एल. की रिपोर्ट भी प्राप्त नहीं हुई है, जबकि माल जांच के लिए एफ.एस.एल. जयपुर भिजवाया गया है। दिनांक 30.06.1990 को ही पुलिस प्रार्थना पर कल्लू की चोटों का डाक्टरी मुआयना करना डाॅक्टर ने अपने बयानों में बतलाया है। जबकि अन्वेषण अधिकारी ने दिनांक 04.07.1990 तक भी मुलजिम को मुलजिम ही मानना नहीं बताया है। इसके पूर्व भी गवाहान के बयान अन्तर्गत धारा 161 सी.आर.पी.सी. लिख लिये गये थे। अभियोजन पक्ष के गवाहान ने कहा है कि मुलजिम चोट मारकर भाग गया। इस प्रकार गवाहान के बयानों में आपस में विरोधाभास है। फजरबी के स्वयं के बयानों में ही विरोधाभास है। इसलिए उसके बयानों पर विवास नहीं किया जा सकता। इस प्रकार उक्त विवेचन के आधार पर मैं इस निष्कर्ष पर पहुंचता हू संदेह से परे यह साबित नहीं है कि हाकम की मृत्यु अभियुक्त कल्लू ने स्वयं कुल्हाड़ी की चोट मारकर की तथा फजरबी को मारने के आाय से कुल्हाड़ी से चोट मार कर उसकी हत्या करने का प्रयास किया।

It has come in the evidence that Kallu and Fajrabi had suffered injuries at the same time. Furthermore, the occurrence in the present case, had taken place at 04:00 A.M. in the parental house of Fajrabi (PW-1), but Kashmiri (PW-2), mother of Fajrabi (PW-1) has stated in a categoric term that she had not seen the accused causing injuries to the deceased. The trial Judge further held that the statements of the prosecution witnesses cannot be reconciled as they are full of contradictions. Dr. Vinod Kumar (PW-6) has admitted in the cross- examination that the injuries suffered by Kallu cannot be self-suffered. Admittedly, the relations between the accused and his wife were estranged. The prosecution has also failed to prove that Kallu was entertaining the suspicion that Hakam was illegitimate child. Law dealing with appeal against acquittal has been elucidely summed up by the Supreme Court in the case of Basappa Vs. State of Karnataka, reported as (2014) 5 S.C.C. 154 :-

9. The High Court in an appeal under Section 378 Cr.PC is entitled to reappraise the evidence and conclusions drawn by the trial court, but the same is permissible only if the judgment of the trial court is perverse, as held by this Court in Gamini Bala Koteswara Rao and Others v. State of Andhra Pradesh . To quote : (SCC p.639 para 14).

14. We have considered the arguments advanced and heard the matter at great length. It is true, as contended by Mr Rao, that interference in an appeal against an acquittal recorded by the trial court should be rare and in exceptional circumstances. It is, however, well settled by now that it is open to the High Court to reappraise the evidence and conclusions drawn by the trial court but only in a case when the judgment of the trial court is stated to be perverse. The word perverse in terms as understood in law has been (5 of 7) [CRLA-68/1993] defined to mean against the weight of evidence. We have to see accordingly as to whether the judgment of the trial court which has been found perverse by the High Court was in fact so. (Emphasis supplied)

10. It is also not the case of the prosecution that the judgment of the trial court is based on no material or that it suffered from any legal infirmity in the sense that there was non-consideration or misappreciation of the evidence on record. Only in such circumstances, reversal of the acquittal by the High Court would be justified. In K. Prakashan v. P.K Surenderan, it has also been affirmed by this Court that the appellate court should not reverse the acquittal merely because another view is possible on the evidence. In T. Subramanian v. State of Tamil Nadu, it has further been held by this Court that if two views are reasonably possible on the very same evidence, it cannot be said that the prosecution has proved the case beyond reasonable doubt.

11. In Bhim Singh v. State of Haryana, it has been clarified that interference by the appellate court against an order of acquittal would be justified only if the view taken by the trial court is one which no reasonable person would in the given circumstances, take.

12. In Kallu v. State of Madhya Pradesh, it has been held by this Court that if the view taken by the trial court is a plausible view, the High Court will not be justified in reversing it merely because a different view is possible. To quote: (SCC pp. 317-18, Para 8).

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. (Emphasis supplied)

13. In Ramesh Babulal Doshi v. State Of Gujarat, this Court has taken the view that while considering the appeal against acquittal, the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable and if the court answers the above question in negative, the acquittal cannot be disturbed. To quote: (SCC p.229, para 7).

7. the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions.

(Emphasis supplied)

14. In Ganpat v. State of Haryana and others, at paragraph-15, some of the above principles have been restated. To quote: (SCC p.62).

15. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal:

(i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion. (6 of 7) [CRLA-68/1993]

(ii) The appellate court can also review the trial courts conclusion with respect to both facts and law.

(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.

(iv) An order of acquittal is to be interfered with only when there are

compelling and substantial reasons for doing so. If the order is clearly unreasonable, it is a compelling reason for interference.

(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed.

15. The exercise of power under Section 378 Cr.PC by the court is to prevent failure of justice or miscarriage of justice. There is miscarriage of justice if an innocent person is convicted; but there is failure of justice if the guilty is let scot-free. As cautioned by this Court in State of Punjab v. Karnail Singh (SCC p.277, para 6).

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 reappreciate 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. (Emphasis supplied)

16. In this context, yet another caution struck by this Court in Chandrappa v. State of Karnataka would also be relevant. (SCC p.432, para 42).

42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge: (1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded. (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such powers 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 emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (7 of 7) [CRLA-68/1993] (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. (Emphasis supplied).

Having heard the learned counsel appearing for the parties, we are of the view that it was incumbent for the prosecution to explain the injuries on the person of Kallu. Furthermore, non-explanation of the injuries on the person of Kallu is fatal to the prosecution. Admittedly, the prosecution witnesses have not proved origin and genesis of the alleged occurrence. Thus, implicit reliance cannot be placed upon the testimony of the witnesses. As per the finding of the trial Judge, which has not been assailed, accused-respondent remained unconscious and could not ran away from the spot. Thus, argument that in the same occurrence, respondent was also caused injuries and family members of Fajrabi (PW-1) are silent, qua the injuries caused to accused-respondent cannot be ignored. Consequently, we cannot term the view formulated by the trial Judge to be perverse, as the opinion formulated by the trial Judge to record the acquittal of Kallu is one view, which is possible on the facts and circumstances of the case. We are conscious that we are dealing with appeal against acquittal. Parameters to deal with appeal against acquittal require that we should not disturb the view formulated by the trial Judge, even if we entertain another opinion. Consequently, there is no merit in the present appeal and the same is, hereby, dismissed. (G R MOOLCHANDANI)J. (KANWALJIT SINGH AHLUWALIA)J.