TMI Blog2003 (6) TMI 472X X X X Extracts X X X X X X X X Extracts X X X X ..... ed severe beating and thrashing as a consequence of which he died. Some other members of the complainant's family were also injured. The accused belong to one family and the complainant belong to one tribal known as Katkari, residing in the tribal area of Raigad district. The complainant thereafter was rushed to the police station. Investigation was carried out and 11 accused were prosecuted for offences under Sections 147, 148, 149, 323, 324, 336, 426, 452, 504 and Section 304 and 201 of the I.P.C. The learned Trial Judge on appreciation of the entire evidence on record which consists of 15 witnesses, examined by the prosecution and various documents executed by the police during the course of investigation, same to the conclusion that the prosecution has failed to prove all the charges levelled by them against the accused and therefore proceeded to acquit the accused by the judgment dated 25-2-1987 which is impugned in this appeal by the State. 2. We have noticed that when this Bench was assigned the work of taking old criminal appeals in which the accused persons were on bail, in most of the cases the appeal is by the State, challenging the acquittal because the accused a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in some other way so conducted or misconducted itself as to produce a glaring miscarriage of justice or has been tricked by the defence so as to produce a similar result. Sections 417, 418 and 423 of the Code 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. No limitation should be placed upon that power, unless it be found expressly stated in the Code. 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 certainly not weakened by the fact that he has been acquitted a 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 witness. 4. Therefore, it will be seen that the Privy Council was firmly of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... gh 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. 9. So the initial opinion of the Supreme Court also supported the opinion that was expressed by the Privy Council. According to the Supreme Court, the order or acquittal can be interfered with only for very substantial and compelling reason though the High Court has full power to review the evidence in that case. 10. A three Judges Bench of the Supreme Court of India in 1961CriLJ766 again considered the provisions of Section 417 and 423 of the Cr.P.C. 1898. The Supreme Court reiterated the earlier position by observing thus: In an appeal against acquittal, the appellate court has full power to review the evidence upon which the order of acquittal is founded. The principles laid down in Sheo Swarup's case, afford a correct guide for the appellate court's appro ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the power conferred by Clause (a) of Section 423 (1) 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. 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 to 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... al evidence. 12-A. In our opinion, we in the High Court also should consider those very questions and apply them to the order of acquittal and only when the answers are not satisfactory, that we should interfere with the order of acquittal. 13-A. We have seen how the questions was considered by various Benches of the Supreme Court, First it was two Judges Bench and then it was three Judges Bench and now it is five Judges Bench. The law as laid down by the Supreme Court in its judgment in [1963]2SCR405 , in our opinion, is final statement of law and it is permissible in the High Court to exercise its power to interfere in the order of acquittal only in cases where substantial and strong reasons exists. 14. Again in 1966CriLJ1491 this position of law was re-iterated as under: The power conferred by Clause (a) of Section 423 which deals with an appeal against an acquittal is as wide as the power conferred by Clause (b) which deals with an appeal against conviction. Thus, the High Court's power in dealing with criminal appeals are equally wide, whether the appeal in question is one against acquittal or against conviction. The test suggested by the expression substan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 no interference 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 an judiciously and is, therefore, liable to be characterized 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. 19. Then in 1988CriLJ1154 , two Judges Bench of the Supreme Court again stated that there are circumstances in which the High Court would be justified in interfering with the acquittal. The observations of the Supreme Court read ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... here the trial Judge apart from deciding the case on irrelevant considerations, criticizing the doctors without any basis, the must serious error of which he has guilty and which rendered the order infirm was that he misread the evidence and indulged in conjectural inferences and surmises. The High Court could not be said to have exceeded its power in setting aside order of acquittal. 21. In , the Supreme Court again reiterated the fact that the presumption of innocence of a person is only strengthened by the order of acquittal and the High Court should be very conscious in interfering. It may be so if there is absolute assurance of the guilt of the accused upon appreciation of evidence on record. The observations of the Supreme Court read thus: Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been followed by judges while dealing with appeals against acquittal. No doubt, the High Court has full power review the evidence and to arrive at its own independent conclusions whether the appeal is against conv ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Prosecutor and the learned counsel for the respondent/accused reappreciated the evidence on record. P.W. 1 is the Circle Inspector who drew the map of the spot where the incident occurred. P.W. 2 is the person who lodged and proved FIR. He is not an eye witness. He went to report the matter to the police at the instance of his brother who was the father of the deceased Baban. P.W. 3 was an independent witness who has turned hostile. P.Ws. 4 to 10 are the close relations of the deceased Baban. All of them stated that it was the accused who murdered Baban. P.W. 12 is the Doctor who carried out the post mortem. P.W. 13 is the Head Constable and P.W. 14 is the Investigating Officer who proved various statements recorded by him which were contradicting P.Ws. 4 to 10. 25. On reappreciation of the evidence of P.W. 4 father of the deceased, we found several infirmities. Initially this witness implicated only accused Nos. 1 to 4, 6 and 11. He does not state anything about what accused No. 11 did. There are various omission in his deposition and there are several improvements in his deposition i.e. improvement upon his earlier statement. For instances he did not state in his statement tha ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... assailants and the weapons used by them but also it attempts at impossible and in addition there is a tendency to implicate innocent persons viz. accused Nos. 5, 7, 8, 9 and 10. None of the eye witnesses have implicated these five accused persons at all. There is not even whisper about their presence at the time of the alleged incident. It is true that evidence of partisan or interested witnesses cannot be rejected in a mechanical manner simply because it is so partisan or interested. What is required to be appreciated in case of such evidence is to ascertain whether it strikes as genuine. This principle will have to be borne in mind while judging evidence of eye witnesses in this case. I have pointed out more than once that these witnesses have given versions of the incident before the court which runs counter to their version before the Investigating Officer. The Supreme Court has observed in the case of Namdeo Daulat Dhayagude and Ors. v. State of Maharashtra reported in AIR1977SC381 that where a story narrated by the witnesses in his evidence before the court differs substantially from that set out in his statement before the police and there are number of contradictions in his ..... X X X X Extracts X X X X X X X X Extracts X X X X
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