TMI Blog2012 (10) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... ersons, ran towards the Police Station, situated near the court complex and made a statement (Ex. P-1) based on which the FIR (Ex. 22) was registered by PW-27. After Chargesheet filled, The learned trial Judge by the judgment and order held that the charges levelled against the accused persons have not been proved beyond all reasonable doubt. Accordingly, all the 23 accused were acquitted. HC set aside the acquittal of A-1 to A-19 and convicted them under different Sections of the IPC. The acquittal ordered by the learned trial court in respect of A-20, A-21, A-22, and A-23 was, however, maintained by the HC. of the 19 accused who have been convicted by the HC, A-6 and A-11 have died in the mean time. Consequently, it is the 17 accused persons against whom the order of conviction continues to be effective who have instituted the present appeal. HELD THAT:- We find ourselves unable to agree with the conclusion of the High Court. Firstly, if the conclusion recorded by the learned trial court was a possible conclusion, the High Court ought not to have ventured further in the matter. Secondly, the aforesaid exercise, in our considered view, did not also occasion a correct conclus ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A consideration on the basis on which the learned trial court had founded its order of acquittal in the present case clearly reflects a possible view. There may, however, be disagreement on the correctness of the same. But that is not the test. So long as the view taken is not impossible to be arrived at and reasons therefor, relatable to the evidence and materials on record, are disclosed any further scrutiny in exercise of the power Under Section 378 Code of Criminal Procedure was not called for. As the High Court had embarked upon an in-depth consideration of the entire evidence on record and had arrived at conclusions contrary to those of the trial court, the discussions now will have to centre around the basis disclosed by the order of the High Court for reversing the acquittal of the accused Appellants. The grounds that had prevailed upon the High Court to hold that the commission of the offence of criminal conspiracy Under Section 120B Indian Penal Code have been proved by the prosecution in the present case have already been noticed. Our reasons for disagreeing with the said view of the High Court have also been indicated hereinabove. Similarly, the reasons for our ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ment for a period of seven years each. The accused Appellants have also been found guilty Under Section 302 of Indian Penal Code for their individual acts or constructively Under Section 34/149 Indian Penal Code for commission of the said offence. They have been accordingly sentenced to undergo rigorous imprisonment for life. Some of the Appellants have also been found guilty of the offences Under Section 148 and Section 332 read with Section 149 Indian Penal Code for which sentence of rigorous imprisonment of three years have been imposed. Aggrieved the present appeal has been filed. 2. For the sake of clarity reference to the accused is hereinafter being made in the chronological order arranged in the proceedings of the trial and the three deceased, i.e., Veeraperumal, Karumpuli and Madaswamy are being referred to as D-1, D-2 and D-3 respectively. The case of the prosecution, in short, is that there was a land dispute between Karumpuli (D-2) and his family and A-1, Thirumani, and his party. There were civil litigations between the parties over the said property. According to the prosecution, on account of the aforesaid dispute, the younger brother of the accused No. 15 was ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... er case of the prosecution that the other injured namely, Karumpulli and Madasamy were also brought to the hospital but had died on the way. It is further alleged by the prosecution that D-1 and D-2 were brought to the court complex from the jail premises by Police Constables Sankaranarayanan (PW-5) and Shanmugaraj (PW-7). Both the aforesaid police constables, according to the prosecution, were eye-witnesses to the occurrence and they had submitted a report to the Judicial Magistrate, Vilathikulam (Ex. P-2) in this regard. The prosecution has further alleged that in the course of the attack by A-1 Thirumani, A-5 had also sustained injuries for which A-5 had filed a complaint and he was medically examined. The prosecution also claims that at the instance of A-7, five aruvals were recovered. 3. On the completion of the investigation, charge sheet was submitted against all the accused under different Sections of the Indian Penal Code. The offences alleged being triable by the Court of Sessions, the case was committed for trial to the Court of the learned Sessions Judge, Tuticorin. The learned trial court framed charges against the present Appellants (17 in number) and six others ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... learned trial court was of the opinion that the said documents do not accurately reflect the situation as claimed to have taken place in view of the fact that FIR Under Section 302 Indian Penal Code was registered at 3.15 pm when the victims of the alleged assault were still alive. 6. In so far as Ex. P-2, i.e., the report lodged by PWs-5 and 7 before the Judicial Magistrate is concerned, the learned trial court was of the view that the involvement of any of the accused have not been mentioned in the said report which renders the same open to grave suspicion and doubt, besides affecting the oral testimony of PW-5 and PW-7 tendered in court later i.e. after five years wherein the names of the alleged attackers, i.e., the accused have been mentioned with complete certainty and precise accuracy. The dying declaration (Ex. P-4) of D-1 was also considered unsafe to be relied upon in view of the fact that the names of only three of the accused have been recorded in the dying declaration in contrast to the names of 11 accused that finds mention in Ex. P-1 and that charge sheet was eventually filed against 23 accused persons. 7. The learned trial court also considered the evidence o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 120B of the Indian Penal Code. The High Court was of the view that such a conclusion is the inevitable result of the process of inference by which proof of commission of the offence of criminal conspiracy was required to be reached in the present case. 10. In so far as the other offences are concerned, the High Court, after noticing the evidence adduced by the prosecution witnesses and the several documents brought on record, took the view that PW-2, PW-3 and PW-4, though were declared hostile, had supported the prosecution, at least to the extent that the three deceased persons and all the convicted accused were present in the court complex on the date and at the time when the occurrence is alleged to have taken place. Reliance to the aforesaid extent on the evidence tendered by the hostile witnesses, according to the High Court, is permissible in law and therefore the aforesaid part of the evidence could not be discarded in toto. The High Court, for the reasons set out in the impugned judgment, came to the conclusion that the evidence tendered by PW-5 and PW-7 is trustworthy and reliable. While the detailed reasons in this regard will be noticed in the subsequent paragraphs of ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e order of acquittal had been passed by the trial court and thereafter to reach the necessary conclusion as to whether order of acquittal is required to be maintained or not. In the opinion of the Privy Council no limitation on the exercise of power of the High Court in this regard has been imposed by the Code though certain principles are required to be kept in mind by the High Court while exercising jurisdiction in an appeal against an order of acquittal. The following two passages from the report in Sheo Swarup (supra) adequately sum up the situation: There is in their opinion no foundation for the view, apparently supported by the judgments of some Courts in India, that the High Court has no power or jurisdiction to reverse an order of acquittal on a matter of fact, except in cases in which the lower Court has obstinately blundered, or has through incompetence, stupidity or perversity reached such distorted conclusions as to produce a positive miscarriage of justice, or has in some other way so conducted 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 g ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... minal 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 reinfor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 18. Having dealt with the principles of law that ought to be kept in mind while considering an appeal against an order of acquittal passed by the trial court, we may now proceed to examine the reasons recorded by the trial court for acquitting the accused in the present case and those that prevailed with the High Court in reversing the said conclusion and in convicting and sentencing the accused Appellants. 19. Insofar as the charge of criminal conspiracy Under Section 120B Indian Penal Code is concerned, there is no doubt and dispute that to prove the said charge the prosecution had examined PWs 15, 16 and 17 who did not support the prosecution case in any manner at all. In fact, each of the aforesaid three witnesses categorically denied that they had made any statement before the Investigating Officer with regard to any agreement amongst the accused on 21.09.1991 to commit the murder of D-1 and D-2 on the next day when they were to be brought to the court. In fact it was noted by the learned trial court that the public prosecutor has virtually conceded that the evidence on record did not establish the charge of criminal conspiracy against any of the accused. The learned tr ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g the evidence of DWs-1, 2 and 3 and the documents exhibited in this regard (Ex. D-4, D-5, D-8, D-9, D-10) it is possible to take a view that aforesaid two accused were not present at the place of occurrence at the relevant time. The High Court answered the aforesaid issue by stating that as it was admitted by DW-1 in cross-examination that a student could leave the college after being marked present in the attendance register and as the sale deed (Ex. D-5) claimed to have been executed by A-4 in Tuticorin at the time of the incident did not specify the time of execution, the plea of alibi set up by A-4 and A-12 was not satisfactorily proved. The exercise undertaken by the High Court, once again, overlooks the basic principle of law that this Court has repeatedly emphasized in the matter of exercise of jurisdiction while hearing an appeal against an order of acquittal passed by the trial court. We are, therefore, unable to accord our approval to the manner in which the High Court had dealt with this aspect of the case. 22. This would now require us to consider the main issue in the case, namely, the liability of the accused Appellants under the provisions of Indian Penal Code ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... further, that neither PW-5 nor PW-7 had informed the doctor about any injuries being caused by pelting of stones. The apparently false involvement of A-20 to A-23 in the incident made by PWs-5 and 7; the wrong identification of several of the accused made in court by PW-5 and PW-7; the absence of any test identification parade are the other circumstances that was taken note of by the learned trial court to arrive at the conclusion that the evidence of PW-5 and PW-7 is not reliable. The injuries on PW-5 claimed to have been caused by an aruval was also found by the learned trial court not to be free from doubt or ambiguity. This is because, according to PW-5, he had tried to prevent the blow dealt with the aruval by A-17, which fell on the 'rifle but' carried by him and had also injured him on the left hand. The rifle carried by PW-5, however, was not exhibited in the trial. Moreover, according to the prosecution, D-1 was examined at about 3.25 p.m. and PW-5 and PW-7 were examined between 4.05 and 4.15 p.m. PW-5 in his deposition had, however, stated that he along with PW-7 was treated around 5.45-6.00 p.m. and at that time D-1 was also in the hospital undergoing treatment. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ous view or wrong view which, at first blush, may seem to convey a similar meaning though a fine and subtle difference would be clearly discernible. 26. The expressions erroneous , wrong and possible are defined in the Oxford English dictionary in the following terms: erroneous: wrong; incorrect. wrong: 1. not correct or true, mistaken 2. unjust, dishonest or immoral possible: 1. capable of existing, happening, or being achieved. 2. that may exist or happen, but that is not certain or probable. 27. It will be necessary for us to emphasize that a possible view denotes an opinion which can exist or be formed irrespective of the correctness or otherwise of such an opinion. A view taken by a court lower in the hierarchical structure may be termed as erroneous or wrong by a superior court upon a mere disagreement. But such a conclusion of the higher court would not take the view rendered by the subordinate court outside the arena of a possible view. The correctne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e evidence of PW-1, PW-2, PW-3 and PW-4 have supported the prosecution case to a certain extent and the said fact could not have been ignored only because PW-2, PW-3 and PW-4 were declared hostile. Even if the aforesaid reasoning of the High Court is to be accepted what would logically follow therefrom is that the evidence of PW-1, PW-2, PW-3 and PW-4, at best, shows the presence of the convicted accused and the deceased at the place of occurrence on the day of the incident. In so far as the evidence of PW-5 and PW-7 is concerned, the High Court was of the view that the failure to mention the names of any of the convicted accused in Ex. P-2 can be explained by the fact that PW-5 and PW-7 must have been in a state of shock and, furthermore, Ex. P-2 was a report to the Magistrate, not of the incident as such, but a report of what had happened to the prisoners who were brought by PW-5 and PW-7 from the jail for production in the court. The errors on the part of PW-5 and PW-7 in identifying some of the accused in Court have been understood by the High Court to be on account of the long lapse of time between the incident and date of their examination in Court (5 years). The absence of a ..... X X X X Extracts X X X X X X X X Extracts X X X X
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