Himachal Pradesh High Court
State Of H.P vs Amar Nath Alias Bhola And Another on 27 November, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA
Cr. Appeal No. 3 of 2008
Reserved on: 20.11.2018
Decided on : 27.11.2018
____________________________________________________________
.
State of H.P. .....Appellant
Versus
Amar Nath alias Bhola and another ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting?1 No
For the appellant: Mr. Sudhir Bhatnagar, Addl. A.G.
With Ms. Svaneel Jaswal, Dy. A.G.
For the respondents: Mr. Ashwani K. Sharma, Senior
Advocate, with Mr. Jeevan Kumar,
Advocate.
_______________________________________________________________
Tarlok Singh Chauhan, Judge
Aggrieved by the order of acquittal of the respondents
for offence punishable under Sections 3 (v) (x) (xiv) of the
Scheduled Castes and Scheduled Tribes (Prevention of Atrocities)
Act, 1989 (for short 'SC & ST Act'), the State has filed the instant
appeal.
2. Prosecution story, in brief, is that on 16.3.2004,
complaint Ext. PW-1/A was submitted to the Superintendent of
Police, Hamirpur, District Hamirpur, H.P. by the complainants Simro
1
Whether reporters of the local papers may be allowed to see the judgment? yes
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Devi (PW-1), Bimla Devi (PW-2), Ruko Devi, Neelam Devi and Kamla
.
Devi. The same was to the following effect:-
"To
The Superintendent of Police,
Hamirpur, District Hamirpur.
Sub:- Regarding blocking the path to "Dalit Basti" again,
hurling caste based abuses, threats to kill, depriving
children from going to and coming from school and
apprehension of danger to life and property.
Sir,
We, the residents of "Dalit Basti", Sarohal, Gram
Panchayat, Banal, P.O. Karot, Tappa Bhaleth, Tehsil Sujanpur,
District Hamirpur, H.P. pray to you that our ancestral path
has again been blocked on 15.3.2004 by (1) Munshi Ram
son of Sh. Kirpa Ram, (2), Roshan Lal son of Kirpa Ram, (3)
Bhagwan Dass son of Kirpa Ram, (4) Kesari Devi wife of
Munshi Ram, (5) Amro Devi, wife of Roshan Lal, (6) Urmila
Devi wife of Bhagwan Dass, (7) Soma Devi, wife of Manohar
Lal, (8) Bhola Ram son of Munshi Ram, (9) Rajni Devi, wife of
Bhola Ram and (10) Salochna Devi, wife of Jagar Nath. On
15.3.2004 when we were going through the path, the
aforesaid persons blocked the same by erecting a thorny
fence and proclaimed that they would burn the "CHAMARIS".
In the path itself and in case Chamars came on the path,
they would be taught such a lesson which would be
remembered by their generations.
(2) It deserves special mention that this ancestral path
was also closed by these persons in March-April last year by
forcibly digging the same and at that time also, they had
declared that they would not give path to these Chamars.
The matter was brought to the notice of District
Administration, Deputy Commissioner, Superintendent of
Police and Sub Divisional Magistrate. It was referred to the
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Tehsildar, Sujanpur Tihra as per orders of the S.D.M. On spot
.
inspection, the path was found blocked. However, later on,
on 1.6.2008, pursuant to compromise between the parties,
the aforesaid persons had opened the path and had agreed
not to block the same in future. As per compromise, all the
complainants were to be consigned.
(3) Sir, the aforesaid persons have again fenced the path
and when we passed through the same, they (Pandits) bent
upon to kill us and hurled filthy caste based abuses besides
threats to burn alive. We are afraid that the aforesaid
influential persons belonging to Pandit community may
cause harm to our lives and property.
(4)
We demand action from the police Administration and
District Administration against the aforesaid persons under
Section 3 of the SC & ST Act and to get the path opened at
the earliest and to get the same entered in the revenue
record.
1. Simro Devi Sd/- Hindi
2. Bimla Devi Sd/- Hindi
3. Ruko Devi Sd/- Hindi
4. Neelam Devi Sd/- Hindi
5. Kamla Devi Sd/- Hindi
Copies to:
1. Special Judge, Atrocities Prevention Act, 1989 with a
prayer regarding investigation in the matter.
2. Dr. Suraj Bhan, Chairman, National Commission for
Scheduled Castes, New Delhi.
3. Director, Scheduled Castes/Scheduled Tribes
Commission, Chandigarh, Sector 9-A.
4. Director General of Police, Shimla.
4-A. Deputy Commissioner, Hamirpur.
5. SHO, P.S. Sujanpur, Hamirpur."
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3. As per endorsement dated 16.3.2004 of the Dy.S.P.
.
(Headquarters), complaint Ext.PW-1/A was sent for legal action and
report to SHO, P.S. Sujanpur. It was further case of the prosecution
that on 19.3.2004, affidavits Ext. PW-5/A and Ext.PW-5/B were
submitted to the police by Munshi Ram (father of accused No.1) and
Piar Chand, who were the members of the accused and complainant
parties respectively, stating that the parties shall resolve the
dispute concerning the path by 23.3.2004 and till then, FIR may not
be registered. However, on 23.3.2004, when SI/SHO Ram Dayal, P.S.
Sujanpur reached the spot at Sarohal, complainant PW-1 Simro Devi
disclosed that the dispute had not been resolved. This led to the
registration of FIR Ext. PW-11/A on 23.3.2004 under Sections 341,
147 and 149 IPC and Section 3 (xiv) of the SC & ST Act.
4. After visiting the spot, preparing the site plan and
getting the path demarcated, the investigation was completed and
it was found that no evidence regarding the blockade of the path
and hurling caste based abuses at the members of the complainant
party was found against Munshi Ram, Roshan Lal, Bhagwan Dass,
Kesari Devi, Amro Devi, Urmila Devi, Soma Devi and Salochna Devi
mentioned in Complaint Ext.PW-1/A and instead, only the
respondents were found liable for the offences punishable under
Sections 341, 504 read with Section 34 IPC and Section 3 (xiv) of the
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SC & ST Act. On being charged, the respondents did not plead guilty
.
and claimed trial.
5. The prosecution examined 14 witnesses and on closure
of the prosecution evidence, respondents accused examined under
Section 313 Cr.PC. wherein their case was that of denial and false
implication. Learned Special Judge on the basis of the evidence,
acquitted all the respondents, constraining the State to file the
instant appeal. r
I have heard learned counsel for the parties and have
gone through the records of the case.
6. At the outset, it would be necessary to deal with the
ambit and scope of the powers of the appellate Court in dealing with
an appeal against acquittal and the law on the subject has been
succinctly dealt with by the Hon'ble Supreme Court in Ghurey Lal
vs. State of U.P. 2008 (10) SCC 450, wherein after taking into
consideration all the previous precedence summed up the legal
position as under:-
43. The earliest case that dealt with the controversy in issue
was Sheo Swarup v. King Emperor AIR 1934 PC 227. In this case,
the ambit and scope of the powers of the appellate court in
dealing with an appeal against acquittal has been aptly
elucidated by the Privy Council. Lord Russell writing the
judgment has observed as under: (at p. 230):
"...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
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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 law succinctly crystallized in this case has been
consistently followed by this Court. On proper analysis of the
ratio and findings of this case, it is revealed that the findings
of the trial court are based on the fundamental principles of
the criminal jurisprudence. Presumption of innocence in
favour of the accused further gets reinforced and
strengthened by the acquittal of the trial court. The appellate
court undoubtedly has wide powers of re-appreciating and re-
evaluating the entire evidence but it would be justified in
interfering with the judgment of acquittal only when the
judgment of the trial court is palpably wrong, totally ill-
founded or wholly misconceived, based on erroneous analysis
of evidence and non-existent material, demonstrably
unsustainable or perverse.
44. This Court again in the case of Surajpal Singh and Ors. v.
State AIR 1952 SC 52, has spelt out the powers of the High
Court. The Court has also cautioned the Appellate Courts to
follow well established norms while dealing with appeals from
acquittal by the trial court. The Court observed as under:
"7. It is well established that in an appeal under Section 417
Criminal P.C., 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 was 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."
This Court reiterated the principles and observed that
presumption of innocence of accused is reinforced by an
order of the acquittal. The appellate court could have
interfered only for very substantial and compelling reasons.
45. In Tulsiram Kanu v. State AIR 1954 SC 1, this Court
explicated that the appellate court would be justified in
reversing the acquittal only when very substantial question and
compelling reasons are present. In this case, the Court used a
different phrase to describe the approach of an appellate court
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against an order of acquittal. There, the Sessions Court
expressed that there was clearly reasonable doubt in respect of
.
the guilt of the accused on the evidence put before it. Kania,
C.J., observed that it required good and sufficiently cogent
reasons to overcome such reasonable doubt before the
appellate court came to a different conclusion.
46. In the same year, this Court had an occasion to deal with
Madan Mohan Singh v. State of Uttar Pradesh AIR 1954 SC 637,
wherein it said that the High Court had not kept the rules and
principles of administration of criminal justice clearly before it
and that therefore the judgment was vitiated by non-advertence
to and mis-appreciation of various material facts transpiring in
evidence. The High Court failed to give due weight and
consideration to the findings upon which the trial court based its
decision.
47. The same principle has been followed in Atley v. State of U.P.
AIR 1955 SC 807, wherein the Court said:
"5....It has been laid down by this Court that it is open to the
High Court on an appeal against an order of acquittal to
review the entire evidence and to come to its own conclusion,
of course, keeping in view the well established rule that the
presumption of innocence of the accused is not weakened but
strengthened by the judgment of acquittal passed by the trial
court which had the advantage of observing the demeanour
of witnesses whose evidence have been recorded in its
presence.
It is also well settled that the court of appeal has as wide
powers of appreciation of evidence in an appeal against an
order of acquittal as in the case of an appeal against an order
of conviction, subject to the riders that the presumption of
innocence with which the accused person starts in the trial
court continues even up to the appellate stage and that the
appellate court should attach due weight to the opinion of the
trial court which recorded the order of acquittal."
48. The question was again raised prominently in Aher Raja
Khima v. State of Saurashtra AIR 1956 SC 217. Bose, J.
expressing the majority view observed (at p.220):
"1....It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 8 must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. State of Punjab .
AIR 1953 SC 76; and if the trial Court takes a reasonable view of the facts of the case, interference under Section 417 is not justifiable unless there are really strong reasons for reversing that view.
49. In Balbir Singh v. State of Punjab AIR 1957 SC 216, this Court again had an occasion to examine the same proposition of law. The Court observed as under:
"12.....It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and 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 must also be kept in mind, and there must be substantial and compelling reasons for the appellate Court to come to a conclusion different from that of the trial Judge."
50. A Constitution Bench of this Court in M.G. Agarwal v. State of Maharashtra AIR 1963 SC 200, observed as under:
There is no doubt that the power conferred by Clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by Clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court s powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled for the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 9 wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its .
approach is governed by the overriding consideration flowing from the presumption of innocence....
The test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterize the findings recorded therein as perverse.
The question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case, is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial Court was erroneous. In answering this question, the Supreme Court would,no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court.
51. In Noor Khan v. State of Rajasthan AIR 1964 SC 286, this Court relied on the principles of law enunciated by the Privy Council in Sheo Swarup (supra) and observed thus:
"Sections 417, 418 and 423 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, 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 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."
52. In Khedu Mohton and Ors. v. State of Bihar 1970 (2) SC 450, this Court gave the appellate court broad guidelines as to when it could properly disturb an acquittal. The Court observedas under:
"3. It is true that the powers of the High Court in considering the evidence on record in appeals under Section 417, Cr. P.C. ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 10 are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the .
presumption of- innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal.
(emphasis supplied)
53. In Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra 1973 (2) SCC 793, the Court observed thus:
"5...An appellant aggrieved by the overturning of his acquittal deserves the final court s deeper concern on fundamental principles of criminal justice....But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. 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 scrutinise 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 consideration, In our view the High Court s judgment survives this exacting standard.
54. In Lekha Yadav v. State of Bihar 1973 (2) SCC 424, the Court following the case of Sheo Swarup (supra) again reiterated the legal position as under:
"6......'3.... The different phraseology used in the judgments of this Court such as-
(a) substantial and compelling reasons:
(b) good and sufficiently cogent reasons;
(c) strong reasons.::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 11
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 but should express the reasons in its judgment which led it to hold that the acquittal was not justified.
55. In Khem Karan and Ors. v. State of U.P. and Anr. 1974 (4) SCC 603, this Court observed:
"5...Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.
56. In Bishan Singh and Ors. v. State of Punjab 1973 (3) SCC 288, Justice Khanna speaking for the Court provided the legal position:
"22. It is well settled that the High Court in appeal under Section 417 of the CrPC has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should 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; & (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.
57. In Umedbhai Jadavbhai v. State of Gujarat 1978 (1) SCC 228, the Court observed thus:
"6. In an appeal against acquittal, the High Court would not ordinarily interferewith the Trial Court's conclusion unless there are compelling reasons to do so inter alia on account of manifest errors of law or of fact resulting in miscarriage of justice."::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 12
58. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, the Court observed thus:
.
It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of any reasonable doubt. 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. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.
"A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.] {emphasis supplied}
59. In Tota Singh and Anr. v. State of Punjab 1987 (2) SCC 529, the Court reiterated the same principle in the following words:
"This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that nointerference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous.
(emphasis supplied) ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 13
60. In Ram Kumar v. State of Haryana 1995 Supp. (1) SCC 248, this Court had another occasion to deal with a case where the .
court dealt with the powers of the High Court in appeal from acquittal. The Court observed as under:
"15...the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the Trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusion recorded by the Trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterized as perverse.
61. This Court time and again has provided direction as to when the High Courts should interfere with an acquittal. In Madan Lal v. State of J&K 1997 (7) SCC 677, the Court observed as under:
"8. ...that there must be "sufficient and compelling reasons"
or "good and sufficiently cogent reasons" for the appellate court to alter an order of acquittal to one of conviction...."
62. In Sambasivan and Ors. v. State of Kerala 1998 (5) SCC 412, while relying on the case of Ramesh Babulal Doshi (Supra), the Court observed thus:
::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 14"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well .
settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.
63. In Bhagwan Singh and Ors. v. State of M.P. 2002 (4) SCC 85, the Court repeated one of the fundamental principles of criminal jurisprudence 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 Court observed as under:
"7. The golden thread which runs through the web of administration of justice in criminal case 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. Such is not a jurisdiction limitation on the appellate court but a Judge madeguidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided.
64. In Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., 2002 (6) SCC 470, this Court again had an occasion to deal with the settled principles of law restated by several decisions of this Court. Despite a number of judgments, High Courts continue to fail to keep them in mind before reaching a conclusion. The Court observed thus:
"10. The principles to be kept in mind in our system of administration of criminal justice are stated and restated in several decisions of this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or otherwise of the accused in a given case. The case on hand is one such case. Hence it is felt necessary to remind about the well-settled principles again. It is desirable ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 15 and useful to remind and keep in mind these principles in deciding a case.
.
11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged.
Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.
12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.
(emphasis supplied)
65.In C. Antony v. K.G. Raghavan Nair 2003 (1) SCC 1had to reiterate the legal position in cases where there has been acquittal by the trial courts. This Court observed thus:
::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 16"6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon .
which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court.
66. In State of Karnataka v. K. Gopalkrishna 2005 (9) SCC 291, while dealing with an appeal against acquittal, the Court observed:
"17...In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal.
67. In The State of Goa v. Sanjay Thakran 2007 (3) SCC 755, this Court relied on the judgment in State of Rajasthan v. Raja Ram 2003 (8) SCC 180 and observed as under:
"15. 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 principle to be followed by appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 17 impugned judgment is clearly unreasonable, it is a compelling reason for interference.
.
The Court further held as follows:
" 16. it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below.
68. In Chandrappa and Ors. v. State of Karnataka 2007 (4) SCC 415, this Court held:
(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 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 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.
(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.::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 18
69. The following principles emerge from the cases above:
.
1. The appellate court may review the evidence in appeals against acquittalunder Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court s acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness credibility is at issue. 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 trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court s acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial court s decision. "Very substantial and compelling reasons" exist when:
i) The trial court s conclusion with regard to the facts is palpably wrong;
ii) The trial court s decision was based on an erroneous view of law;
iii) The trial court s judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court s judgment was manifestly unjust and unreasonable;::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 19
vi) The trial court has ignored the evidence or misread the .
material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
7. Bearing in mind the aforesaid exposition of law, it would be noticed that in order to see whether there is any perversity in the order of acquittal, it would be necessary to refer to the evidence that has come on record.
8. In the complaint Ext.PW-1/A, the alleged acts constituting the aforesaid offences had been attributed against as many as 10 persons. However, admittedly during the investigation, no evidence was found against any one of them except the two persons namely Amar Nath alias Bhola and Rajni Devi, who are the respondents herein. PW-4. PW-1 Simro Devi had stated during her cross-examination that on 15.3.2004, i.e. the date of occurrence, Urmila Devi, Amro Devi, Kesari Devi and Salochna Devi , who belong to the family of the accused were there on the spot, but they had not stated anything to them and instead were requesting the respondents not to utter anything against them. Thus, it is absolutely clear that on the one hand, PW-1 has not named Munshi Ram, Roshan Lal, Bhagwan Dass and Soma Devi whose names ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 20 otherwise find mention in the complaint Ext.PW-1/A and on the .
other hand, she has completely absolved the others namely Urmila Devi, Amro Devi, Kesari Devi and Salochna Devi and has only accused the present respondents for commission of offence. Once that be so, then obviously, the testimony of the prosecution witnesses have to be scrutinized with utmost care and caution.
9. Now, in case the testimony of PW-2 Bimla Devi is adverted to, it would be noticed that she during the course of her cross-examination has stated that except the respondents, other members of their family members namely, Amro Devi, Kesari Devi, Urmila Devi and Soma Devi etc. were also present there, but had not uttered anything against them. She too has omitted the name of Munshi Ram, Roshan Lal, Bhagwan Dass and Salochna Devi and has absolved all accused except the respondents herein.
10. A perusal of the testimony of both these witnesses in the given circumstances thus creates a very serious doubt about their correctness and veracity of the contents of the complaint Ext.PW-1/A. It would be noticed that in complaint Ext.PW-1/A, there is no allegation that respondent Rajni Devi had told the members of the complainant party that they had come here to take their latrine, whereas both PW-1 and PW-2 have stated so in their examination-
in-chief. Thus, there is a marked improvement in the case set up by ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 21 the prosecution and same cannot easily be over-looked in the facts .
and circumstances of the instant case.
11. In addition to the above, it would be noticed that their contradictions regarding preparation of the complaint Ext.PW-1/A which according to PW-1 was drafted at Hamirpur, where none-else was present with the complainant, who were all ladies, whereas according to PW-2, the complaint moved by them in Police Station, Sujanpur was in fact drafted at Sujanpur. Not only this, PW-2 further goes on to state that their husbands were accompanying them when complaint Ext. PW-1/A was drafted.
12. It is not in dispute that there was strained relations between the parties on account of a dispute relating to the path which originated in the year 2003 when proceedings under Section 133 Cr.P.C. were instituted by PW-4 Parkash Chand, a resndent of Harijan Basti, Sarohal against the respondents, which were later on dropped vide order Ext.PW-3/A pursuant to compromise Ext.PW-3/G. It is further not in dispute that a portion of the alleged path is said to pass through the land of Munshi Ram, the father of accused No.1 Amar Nath alias Bhola and qua the same the accused party had already filed a civil suit against PW-1 Simro Devi and PW-4 Parkash Chand wherein an ad-interim restraint order had been passed against the complainants.
::: Downloaded on - 28/11/2018 22:57:08 :::HCHP 2213. In such circumstances, the learned Special Judge was .
absolutely right in holding that the complaint filed by the complainants vide Ext.PW-1/A was highly suspected as the dispute concerning the path was already pending adjudication before the Civil Court and it appears that a simple civil dispute concerning path had been given a highly coloured version so as to bring the same within the ambit of SC and ST Act and the possibility of male members belonging to the complainant party being instrumental in doing so could not be ruled out in the given facts and circumstances of the case. Thus, no exception can be taken from the findings so recorded by the learned Special Judge in holding that the prosecution has not been able to bring home the guilt of the accused and had thereby acquitted them.
14. In view of the aforesaid discussion, I find no merit in this appeal and the same is accordingly dismissed, so also the pending application(s) if any.
(Tarlok Singh Chauhan), Judge November 27, 2018 ( GR) ::: Downloaded on - 28/11/2018 22:57:08 :::HCHP