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2009 (5) TMI 1007 - SUPREME COURTMurder - common motive or prior conspiracy - Offence punishable u/s 307 and 302 r/w Section 149 IPC and u/s's 3 and 5 of Explosive Substances Act, 1908 (`Explosive Act') - explosion of bombs - sustained splinter injuries - Delay in lodging the FIR - Power of an appellate court in an appeal against an order of acquittal - A-5 died on the date of the occurrence while A-8 died during the pendency of the trial - there are 13 accused persons whose case remains to be considered - HC acquitted A-16 and A-17 from all the charges and convicted the rest of the accused - HELD THAT:- Bare reading of Section 378 (appeal in case of acquittal), makes it clear that no restrictions have been imposed by the legislature on the powers of the appellate court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. It cannot, however, be forgotten that in case of acquittal, there is a 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 should be presumed to be innocent unless he is proved to be guilty by a competent court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial court. Powers of Appellate Court - Chandrappa and Ors. v. State of Karnataka [2007 (2) TMI 704 - SUPREME COURT],the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal were culled out. (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. The concepts of probability, and the degrees of it, cannot obviously be expressed in terms of units to be mathematically enumerated as to how many of such units constitute proof beyond reasonable doubt. There is an unmistakable subjective element in the evaluation of the degrees of probability and the quantum of proof. Forensic probability must, in the last analysis, rest on a robust common sense and, ultimately, on the trained intuitions of the Judge. While the protection given by the criminal process to the accused persons is not to be eroded, at the same time, uninformed legitimization of trivialities would make a mockery of administration of criminal justice. This position was illuminatingly stated by Venkatachaliah, J. (as His Lordship then was) in State of U.P. v. Krishna Gopal [1988 (8) TMI 421 - SUPREME COURT]. It is to be noted that in the instant case the incident took place in front of MDO office around 1.40 p.m. The finding of the trial Court is to the effect that murder of deceased took place at 1.40 p.m. and the same fact is not disputed by the accused persons. Between 2.40 and 2.45 p.m. the deceased and the injured were taken to the Government Hospital by PW-9 which is also 12 KM from the place of occurrence. The medical intimation is Ext.P-25 which was sent to the Station Incharge at 2.45 p.m. PW-1 the de facto complainant was examined by PW-22 at around 3.30 p.m. The Station Incharge received information around that time. At 4.00 p.m. the statement of the de facto complainant (PW-1) was recorded by the Head Constable in the presence of PW-22. The statement of PW-1 along with Ext.P-25 was sent to Police Station on the point of jurisdiction and the same was registered by PW-21. The inquest was held at around 9 to 12 p.m. and copy of FIR was received by the Magistrate. It is to be noted that since the Magistrate was on leave and Magistrate at another place was not the incharge, it was sent to another Court which is at a distance of 60 K.M. as is evident from the evidence of PW-21. Therefore, there is no delay in sending the FIR to the Magistrate. The allegation that the FIR was ante timed is without any foundation. The impugned judgment cannot be said to be suffering from infirmity to warrant interference. The appeal fails and is dismissed.
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