SUPREME COURT OF INDIA

Before:- Dirauswant Raju and Shivaraj V. Patil, JJ.

Criminal Appeal No. 1193 of 1999. D/d. 18.07.2002.

Sheik Khader and Anr. - Appellants

Versus

State of Karnataka - Respondent

Criminal Procedure Code, 1973, Section 378 - Indian Penal Code, 1860, Sections 302 and 34 - Evidence Act, 1872, Section 3 - Murder - Appeal against acquittal - Trial Court after carefully analysing the evidence and other materials on record acquitted the accused - However in appeal High Court proceeded superficially and by a mere change of opinion arrived at a conclusion different from the one recorded by Trial Court - Held, High Court without being able to find fault with definite reasons assigned for the verdict of acquittal with pointed reference to the evidence on record, could not have chosen to convict the accused under Section 302/34 Indian Penal Code by giving finding in a superficial manner.

[Para ]

JUDGMENT

1. The appellants, who had the benefit of an acquittal in the hands of the learned XXth Additional Sessions Judge, Bangalore City when tried for charges for the offences punishable under Sections 302 and 341 read with Section 34 of the Indian Penal Code, suffered a conviction in the hands of the High Court which on an appeal filed by the State set aside the acquittal and convicted them of the offences punishable under Sections 302 read with Section 34 Indian Penal Code while affirming the acquittal under Section 341 Indian Penal Code and sentenced to undergo rigorous imprisonment for life. The accused are before us in this appeal.

2. We have heard Mr. Naresh Kaushik learned counsel for the appellants and Mr. Sanjay R. Hegde, Advocate appearing for the respondent - State.

3. The case of the prosecution was that on 30th July, 1992 at about 6.30 p.m. at a place called Chikkabettahalli in the limits of Yelahanka Police Station, the appellants committed the gruesome murder of one Sheikh Ghouse by inflicting injuries on his legs and on the back of his head with matchu, resulting in the instant death of the said Sheikh Ghouse on the spot. The motive attributed is that the accused, an already married person, had enticed away the sister of the deceased about six months prior to the occurrence and thereafter he returned back to the village and resumed his normal work and, therefore, the accused got infuriated and had a grudge against the victim. The prosecution sought to substantiate its case by examining PWs 1 to 15, of which the elder brothers of the deceased were PW1 and PW2. The others examined were, PW3 related to both the victim and the accused, PW4 another cousin of the deceased, PW5, the wife and PW6, the father-in-law of the deceased and PW7, a nearby resident. PW3 was also a witness for the recovery of the weapon said to have been used for committing the offence and was a signatory to the recovery memo. He turned hostile by stating that he does not know anything and had not seen the assault.

4. The learned Trial Judge after carefully analysing the evidence and the other materials on record pointed out some of the glaring inconsistencies and vital contradictions in the depositions of the various witnesses which not only undermined the credibility of the prosecution case but demonstrated that they could not have really seen the actual occurrence and the entire materials brought on record does not bring home the guilt of the accused. The learned Sessions Judge was also of the view that the version of the PWs apart from being unbelievable, keeping in view the basic facts spoken to by everyone of them established that none of them were really or actually present on the spot at the time of the occurrence and they arrived on the scene of occurrence only after it took place. Despite their version, in chief examination, the materials disclosed from the cross examination, did not inspire any confidence in the learned Trial Judge and consequently the accused were acquitted.

5. On an appeal filed by the State before the High Court the learned Judges in the High Court, though very meticulously noticed the principles of law governing the scope and extent of interference permissible and the tests and conditions to be satisfied to call for an interference in their hands with an order of acquittal passed by the trial court, in our view, has miserably failed to apply them in practice and seem to have proceeded superficially and by a mere change of opinion arrived at a conclusion different from the one recorded by the learned Trial Judge. Not only such an impermissible exercise appears to have undertaken at the appellate stage, but we also find that on certain vital and relevant aspect of facts, erroneous assumptions seems to have been made for which there could be no basis or support on the evidence on record. Our attention has been invited to the record of proceedings before the High Court which disclosed that the counsel engaged did not really appear for the accused and the entire exercise has been undertaken in the absence of their assistance, apparently leading to such deficiencies in the consideration of the matter, before the High Court. The general observations that the trial courts appreciation was unsatisfactory, incorrect, wrong and that evidence has been also misread, does not seen warranted, on going through the judgment and the evidence on record. Per contra, the learned Trial Judge has chosen to take pain to extract relevant portions of the evidence to justify his conclusion that the witnesses are not truthful and by serious and vital contradictions they stand mutually condemned and failed to inspire any confidence, worth placing reliance upon the prosecution version. Though it was obligatory for the court dealing with an appeal against an acquittal to consider each of the reasons specifically before dislodging them or disturbing the verdict made, no such exercise seems to have been undertaken in this case, except making certain general and sweeping remarks, without adverting to the factual details noticed by the trial court by specifically extracting them in the judgment.

6. This Court has consistently laid down that while dealing with appeals against acquittal also, though the High Court has full powers to review the evidence and to arrive at its own independent conclusion, it has to bear in mind that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption get further strengthened by the initial acquittal and that every accused is entitled to the benefit of reasonable doubt regarding his guilt, particularly when the trial court acquitted him, to retain that benefit in the appellate court also. Consequently, the appellate court in appeals against acquittal has to proceed more cautiously and only if there is reasonably positive and definite assurance of the guilt of the accused upon the evidence on record that the order of the acquittal is liable to be interfered with or disturbed. Appellate courts in such cases have been also cautioned to ensure that there should be no reversal merely because one more view or different view is equally possible, on the very evidence.

7. Viewing the order of acquittal passed by the learned trial judge on the slippery nature of the evidence let in by the prosecution which renders its case on all aspects including the time, manner of occurrence, weapon used and as to even the very presence of any one of the PWs at the time and scene of occurrence, no exception could be taken to the findings of acquittal recorded by the learned Trial Judge which in our view, was well merited and at any rate could not be said to be either manifestly erroneous or contrary to well settled principles of law or vitiated on account of any perversity of approach or mis-reading or over-looking of any vital aspect of the evidence.

8. In our view, the High Court, in the present case, seems to have adopted an approach as if it is the first court, completely unmindful of the conclusions arrived at and the findings recorded after adverting to the evidence on record with definite reasons therefor by the learned Sessions Judge. In the process we find that not only vital aspects noticed by the Trial Court have been ignored but the facts pertaining to anti social antecedents of the deceased, some members of the family and the important fact that the house of the accused was set on fire at the very point of time brought out during effective cross examination seem to have been completely lost sight of. Though it is on evidence that about more than 20 persons were also present at the time of commission of the crime, and several neighbours are living in and around, surprisingly only relatives and that too close relatives of the deceased have been chosen for being examined without any serious attempt to examine or sincere explanation for the non examination of any one of such disinterested or independent witness. The serious impact of the hostile evidence of PW3 also seem to have been completely lost sight of by the First Appellate Court. In our view, the High Court, without being able to find fault with the definite reasons assigned for the verdict of acquittal with pointed reference to the evidence on record, could not have chosen to reverse the verdict of acquittal and returned a finding of guilt in a superficial manner.

9. Consequently, we are unable to agree with the reasoning of the High Court and affirm the conclusions arrived at to disturb the order of acquittal recorded by the learned Trial Judge. In the result, the appeal is allowed. The judgment under challenge is set aside and that of the trial court recording a verdict of acquittal of the accused - appellants is restored. The appellants, who are said to be in jail, shall be released forthwith, if not required in any other case.

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