MOHAN @SRINIVAS @SEENA @TAILOR SEENA versus THE STATE OF KARNATAKA on 13 December 2021

MOHAN @SRINIVAS @SEENA @TAILOR SEENA

v.

THE STATE OF KARNATAKA

(Criminal Appeal No. 1420 of 2014)

DECEMBER 13, 2021

[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]

Code of Criminal Procedure, 1973 – ss.378, 384 – Appealagainst acquittal – Murder of police officer – Appellants acquittedgiving benefit of doubt – Acquittal reversed by High Court – Onappeal, held: Most of the witnesses turned hostile – PW1-SubInspector of Police, the sterling witness of the prosecution had anaxe to grind against the accused who had given a complaint againsthim – It is too strange that he could be a chance witness – Manycontradictions in statements made by PW-1 and PW-2-Duty constable– Alleged occurrence was said to have happened at about 5 p.m.on a busy road with heavy traffic however, except the evidence ofPW-1 and PW-2, there was no other evidence relied upon by theprosecution – On motive, there was nothing to implicate the accusedwith motive to murder the deceased – High Court did not undertakethe exercise as mandated u/s.378 r/w s.384 in reversing the reasoneddecision rendered by the trial court – Penal Code, 1860 – ss.302,506-B, 120B r/w 34.

Code of Criminal Procedure, 1973 – ss.378, 384 – Scope of– Discussed.

Allowing the appeals, the Court

HELD: 1.1 Section 378 CrPC enables the State to preferan appeal against an order of acquittal. Section 384 CrPC speaksof the powers that can be exercised by the Appellate Court. Whenthe trial court renders its decision by acquitting the accused,presumption of innocence gathers strength before the AppellateCourt. As a consequence, the onus on the prosecution becomesmore burdensome as there is a double presumption of innocence.Certainly, the court of first instance has its own advantages indelivering its verdict, which is to see the witnesses in person

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Awhile they depose. The Appellate Court is expected to involveitself in a deeper, studied scrutiny of not only the evidence beforeit, but is duty bound to satisfy itself whether the decision of thetrial court is both possible and plausible view. When two viewsare possible, the one taken by the trial court in a case of acquittalis to be followed on the touchstone of liberty along with theBadvantage of having seen the witnesses. Article 21 of theConstitution of India also aids the accused after acquittal in acertain way, though not absolute. The Appellate Court is expectedto maintain a degree of caution before making any remark. [Paras20, 22][460-B-E; 461-A]C1.2 The trial court considered the testimonies of the otherwitnesses first before embarking upon eye witnesses and thematerial witness. It gives exhaustive reasoning for its ultimateconclusion. Most of the witnesses turned hostile. PW-16, anindependent witness also states that she has not seen the

Doccurrence and she heard that the deceased was dead beforetaking to the hospital. The trial court took enormous pains inconsidering the evidence of all the witnesses one by one. Onconsidering the evidence of PW-7, a shoe shop owner, it gives itscogent reasoning for its non-acceptance. The previous bill andthe relevant bill had a difference of about 8 months in betweenEand this witness has not seen who has purchased the chappalsmarked as M.O. 8 from his shop. Similarly, PW-20 who wasrunning an STD booth could not convince the trial court as hecould not say that the accused had made calls from his booth. Onmotive, it was correctly analysed that there was nothing toFimplicate the accused with motive to murder the deceased.PW-1 was the sterling witness of the prosecution. Certainly, hehad an axe to grind against the accused who had given a complaintagainst him. He was facing a departmental enquiry and suspension.It is too strange that he could be a chance witness. His evidencewas thoroughly analysed by the trial court including the distanceGbetween his place of work and his residence. He did not use hiswireless which was not in operation and went to the police stationto give an oral complaint the first time but the same was notregistered. PW-25 was known to him and it is surprising as to H

why no attempt was made to save the deceased immediately bytaking him to the nursing home which was 50 meters away as anormal human conduct. There are many contradictions betweenthe statements made by PW-1 and PW-2. It is also surprising asto how the other chance witness ‘R’ came to the place, once again,a person known to the family of the deceased. Though PW-1denied the complaint against him, he made an admission that hewas under suspension. There was no bloodstain of the deceasedon PW-1 as against PW-2 and the same was also not matched.PW-2 was also seen along with PW-1. He was another eye witness.He was a duty constable. The trial court rightly doubted hispresence as well. Once again, even this witness has not givenany complaint. This Court is dealing with the deposition of a policeofficer who is expected to know his duty. While PW-2 did notmake a complaint but went on to do his duty, PW-1 did not attendto his duty thereafter or informed the police station in which hewas posted. Though, PW-2 has stated that accused made anattempt to attack him by throwing one of the material objects,even the High Court has disbelieved that. The said material objectwas recovered from some other place as could be seen from therecovery memo, despite the fact that it was nobody’s case thatthe accused retrieved the same and kept it with them while beingchased. [Paras 24-27][465-G-H; 466-A-H; 467-A-B]

1.3 PW-25 is the doctor who is well known to PW-1. WhilePW-1 deposed that he did not actually accompany the deceased,PW-25 did make a statement that both the police and publicadmitted the deceased. This witness did admit that exhibit Ex.P-41 made a mention that the deceased was brought by PW-1and Ramesh. Both PW-1 and PW-2 did not speak about this. Hehad also stated that he did not know whether the contents of Ex.P-41 as correct or not. He acknowledged the fact that he waswell known to PW-1 and his family. On a reading of the evidenceof PW-25 no existence of dying declaration is found in it. He haddeposed that he did not remember whether the deceased toldhim that the accused attacked him and caused injuries. It is hisfurther testimony that he had given Ex. P-41 due to thepersistence of the police. He did not remember whether police AB

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Aasked him to name the accused under Ex. P-41. Exhibit P-38,the case sheet maintained by PW-25 though makes a mentionabout the accused, it did not speak about any statement beingmade by the deceased about the accused. This Court is inagreement with the reasoning of the trial court for not acceptingthe evidence of PW-25. [Paras 28-30][267-B-F]B

1.4 The defence also examined one witness. This witnessis a Government doctor being an expert in the field of surgery.He had clearly deposed that it would be impossible for thedeceased to be conscious after suffering injuries as mentioned inExhibit P-38, which is intestines coming out. The trial courtCcorrectly considered this evidence. High Court rendered aconviction on mere surmise, even though an inference can neverbe the basis of a conviction when the testimony of a witness isnot believed on cogent reasoning. It is also not known as to howthe High Court could give a finding that the investigating officerDwas supporting the accused qua the contradiction elicited betweenSection 161 CrPC statement given by the witness as againstdeposition before the Court. The alleged occurrence was said tohave happened at about 5 p.m. on a busy road with heavy trafficand even the evidence of PW-1 and PW- 2 suggests that therewere about 1000 persons. Except the evidence of PW-1 andEPW-2, there was no other evidence relied upon by the prosecution.The High Court did not undertake the exercise as mandated underSection 378 read with Section 384 CrPC in reversing the reasoneddecision rendered by the trial court. The orders of convictionpassed by the High Court stand set aside. [Paras 31-33]

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Anwar Ali and Anr. v. State of Himachal Pradesh (2020)10 SCC 166 – relied on.

Jayamma & Anr. vs. State of Karnataka (2021) 6 SCC213; Paparambaka Rosamma & Ors. vs State of A.P.G(1999) 7 SCC 695 : [1999] 2 Suppl. SCR 328; SurinderKumar vs. State of Haryana (2011) 10 SCC 173 : [2011]12 SCR 1205; Chandrappa vs. State of Karnataka(2007) 4 SCC 415 : [2007] 2 SCR 630; RajendraPrasad vs. State of Bihar (1977) 2 SCC 205 [1977] 3HSCR 68; Padmanabhan Vijaykumar vs. State of Kerela

(1994) Supp. 2 SCC 156; Amar Singh vs. State of NCTof Delhi (2020) SCC Online SC 826; Narayana Reddyalias Babu vs. State of Karnataka (2016) 14 SCC 212;A Shanker vs. State of Karnataka (2011) 6 SCC 279 :[2011] 6 SCR 999; Selvaraj vs. State of Tamil Nadu(1976) 4 SCC 343; Pradeep Narayan Madgaonkar vs.State of Maharashtra (1995) 4 SCC 255 – referred to.

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Case Law Reference

CRIMINAL APPELLATE JURISDICTION : Criminal AppealDNo.1420 of 2014.

From the Judgment and Order dated 29.05.2013 of the High Courtof Karnataka, Bangalore in Crl. A. No.460 of 2008.

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Criminal Appeal No.759 of 2018.

Shekhar G. Devasa, Manish Tiwari, Shashi Bhushan Nagar forM/s Devasa & Co., Advs. for the Appellant.

Shubhranshu Padhi, Ashish Yadav, Rakshit Jain, Vishal Banshal,V. N. Raghupathy, Md. Apzal Ansari, Advs. for the Respondent.

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The Judgment of the Court was delivered by

M. M. SUNDRESH, J.

1. A well merited judgment of the Court of Sessions acquittingtwo young men accused of murdering a police officer, was overturnedby the High Court convicting them for life. Seeking to set themselves atliberty, these appeals are before us.

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2. We have heard learned counsel appearing for the parties,perused documents and the written arguments filled. Incidentally wecalled for the trial court records and went through them.

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456SUPREME COURT REPORTS

AFACTS:

3. PW-4 and PW-5 are brothers. The deceased was the maternaluncle of the aforesaid two witnesses. They attacked the mother of A-1leading to a complaint given to PW-1, Sub-Inspector of Police.

4. Not satisfied with the registration of the first information reportBqua the offence at the hands of PW-1, a complaint was given before theLokayukta by A-1. Incidentally, PW-1 was suspended. He was facingother charges as well. It was in vogue even at the time of giving evidence.

5. On the aforesaid motive, both the accused carried threeweapons, waylaid the deceased at a signal in a main road at about 5Cp.m. and after the initial attack, dragged him to the pavement, andthereafter inflicted multiple injuries. Both the accused and the deceasedwere travelling in two-wheelers. PW-1, who was working in a policestation, a bit far away, was coming from his house after taking lunch. Hewas a chance witness. He saw the occurrence from a fair distance. HeDwas known to the deceased. The deceased had his intestine coming out.The deceased told him the story implicating the accused. PrecedingPW-1, PW-2 was present at the scene. He was also a police headconstable. Both PW-1 and PW-2 are working in the traffic department.He heard the statement made by the deceased, as one of the accusedthrew a weapon at PW-2, which recovery was shown subsequently at aEdifferent open place, as is the case of the other recoveries. PW-1,thereafter, chased the accused but could not secure them. The statementsmade by PW-1 and PW-2 differ with respect to the street.

6. PW-1 and PW-2 stopped an auto and placed the deceased intoit along with one Ramesh, since deceased (not examined). Incidentally,Fhe is not only known to PW-1 but also a friend of the deceased and thus,yet another chance witness.

7. PW-1, thereafter, went to the police station and gave an oralcomplaint which was admittedly not registered. Thereafter, PW-1 cameto the hospital which was about two kilometres from the place ofGoccurrence, while another nursing home was in existence at about 50meters. The hospital in which the deceased was admitted was run byPW-25, a doctor very well known to PW-1.

8. PW-25 gave treatment to the deceased at about 5.05 p.m. Hedied of multiple injuries caused by haemorrhage at about 5.45 p.m. TheHcase sheet indicates that the deceased was allegedly attacked by two known persons, namely the accused. About 40 days thereafter – i.e.,03.12.2001, at the request of the police, PW-25 gave another certificateintroducing adequate material to indicate that there was a dyingdeclaration.

9. In the meanwhile, PW-1 went to the police station for the secondtime and gave a complaint which was registered by PW-28 at about 6p.m. PW-28 is the investigating officer, who did his part by completing itand filed the final report with the major offences being Section 302,Section 506-B, and Section 120B r/w Section 34 of Indian Penal Code.

10. Before the trial court, the prosecution examined as many as28 witnesses and marked Exhibit P-1 to P-60. Material objects are markedas MO-1 to MO-17. On behalf of the defence, a doctor was examinedto show that considering the nature of the injuries suffered, the deathmust have been instantaneous. Certain portions of Section 161 of theCode of Criminal Procedure, 1973 (hereinafter referred to as ‘CrPC’)statements given by the prosecution witnesses have been marked tocontradict their deposition before the Court.

11. The Court of Sessions without exception, threadbare consideredall the materials including the witnesses who turned hostile. Most of thewitnesses pertaining to conspiracy, occurrence, recovery andextraordinary judicial confession turned hostile. After due scrutiny, benefitof doubt was extended in favour of the appellants.

12. The State took the case on appeal before the High Court. TheHigh Court did not consider the entire evidence as discussed by the trialcourt. Nonetheless, it reversed the order of acquittal on the followinggrounds:

•The Trial Court had no idea of the concept of dyingdeclaration and the principle governing it.

•The testimony of PWs 3, 4 and 5 ought to be read in unisonand in conjunction with each other to come to an inferenceof motive.

•The testimony of PWs 1, 2 and 25 ought to have beenaccepted.

•The contradictions between the testimony of PW-2 and thestatement under Section 161 CrPC, would only mean thatthe investigating officer was leaning towards the accused.

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A•The medical evidence along with the documents markedclearly point out the guilt towards the accused.

•The fact that the witnesses turned hostile including the panchwitness who signed the recovery memos would not be fatalto the case of the prosecution.

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13. Accordingly, the judgment of the trial court was reversed andconviction was rendered sentencing the appellants for life.

SUBMISSIONS OF THE APPELLANTS:

14. The learned counsel appearing for the appellants submittedCthat it is not probable that PW-1 could have been present on that day asa chance witness. He was having a grudge against the accused. At theirinstance he was facing departmental proceedings. The trial court hasconsidered the evidence thoroughly. It found that PW-1 could not havebeen a chance witness and there are many discrepancies in his evidenceand the testimony of PW-2. He did not use his wireless radio nor makeDany attempt immediately to give a complaint. He did not accompany thedeceased, as reiterated by PW-2 being contradictory to that of Ex. P-41read with the evidence of PW-25. It is inexplicable that the deceasedwould be taken to the hospital 2 kilometres away, while leaving the oneon the road just about 50 meters away, especially taking note of theserious condition of the deceased. It is further submitted that PW-2’sEevidence was rightly disbelieved by the trial court in view of thecontradictions in the evidence adduced by him and PW-1, and also PW-16. He also did not give a complaint despite being a police officer. Thetrial court rightly noted that it would be unsafe to rely upon the evidenceof PW-1 and PW-2.F

15. The recovery shown also belies the case as put up by PW-2with respect to an attempt to attack him by throwing one of the materialobjects at him. There was an admitted contradiction between thestatement given by PW-2 before the Court and in his Section 161 CrPCstatement as acknowledged by PW-28. The High Court straightawayGcame to the conclusion that PW-28 was supporting the accused, as all ofthem are the police officers known to each other. Even the occurrencehas been spoken differently by PW-1 and PW-2.

16. The High Court ought not have made reliance upon Ex. P38 -P41. Ex. P-38 is highly doubtful, however, the same has been improvedHby Ex. P-41 by introducing the concept of dying declaration after about 40 days, which document came into existence on the insistence of thepolice which could be proved through the evidence of PW-25 himself.

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17. Thus, when the trial court which had the advantage of seeingthe witnesses in person during their deposition gave its verdict, it couldnot have been set aside through a cryptic order by the High Court withoutadequate discussion. The High Court ought not to have reversed theBdecision on the basis of a so-called dying declaration.

18. The counsel seeks support for his argument by placing relianceupon the following decisions:

•Jayamma & Anr. vs. State of Karnataka (2021) 6 SCC 213

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•Paparambaka Rosamma & Ors. vs State of A.P. (1999) 7SCC 695

•Surinder Kumar vs. State of Haryana (2011) 10 SCC 173

•Chandrappa vs. State of Karnataka (2007) 4 SCC 415

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•Rajendra Prasad vs. State of Bihar (1977) 2 SCC 205

•Padmanabhan Vijaykumar vs. State of Kerela (1994) Supp.2 SCC 156

•Amar Singh vs. State of NCT of Delhi (2020) SCC OnlineSC 826

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•Narayana Reddy alias Babu vs. State of Karnataka (2016)14 SCC 212

•A Shanker vs. State of Karnataka (2011) 6 SCC 279

•Selvaraj vs. State of Tamil Nadu (1976) 4 SCC 343

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•Pradeep Narayan Madgaonkar vs. State of Maharashtra(1995) 4 SCC 255

SUBMISSION OF THE STATE:

19. The learned counsel appearing for the State submitted thatthe High Court has correctly relied upon the evidence of PWs 1, 2 and25. PW-25 is an independent witness. Merely because PW-1 and PW-2are the police officers, their evidence cannot be disbelieved. The HighCourt also took into consideration the documents marked on the side ofthe prosecution. As relevant materials were indeed taken into G

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Aconsideration, there is no need for interference particularly when weare dealing with a case of homicide of a police officer.

DISCUSSION:

20. Section 378 CrPC enables the State to prefer an appeal againstan order of acquittal. Section 384 CrPC speaks of the powers that canBbe exercised by the Appellate Court. When the trial court renders itsdecision by acquitting the accused, presumption of innocence gathersstrength before the Appellate Court. As a consequence, the onus on theprosecution becomes more burdensome as there is a double presumptionof innocence. Certainly, the court of first instance has its own advantagesCin delivering its verdict, which is to see the witnesses in person whilethey depose. The Appellate Court is expected to involve itself in a deeper,studied scrutiny of not only the evidence before it, but is duty bound tosatisfy itself whether the decision of the trial court is both possible andplausible view. When two views are possible, the one taken by the trialcourt in a case of acquittal is to be followed on the touchstone of libertyDalong with the advantage of having seen the witnesses. Article 21 of theConstitution of India also aids the accused after acquittal in a certainway, though not absolute. Suffice it is to state that the Appellate Courtshall remind itself of the role required to play, while dealing with a caseof an acquittal.

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21. Every case has its own journey towards the truth and it is theCourt’s role undertake. Truth has to be found on the basis of evidenceavailable before it. There is no room for subjectivity nor the nature ofoffence affects its performance. We have a hierarchy of courts in dealingwith cases. An Appellate Court shall not expect the trial court to act in aFparticular way depending upon the sensitivity of the case. Rather it shouldbe appreciated if a trial court decides a case on its own merit despite itssensitivity.

22. At times, courts do have their constraints. We find, differentdecisions being made by different courts, namely, trial court on the oneGhand and the Appellate Courts on the other. If such decisions are madedue to institutional constraints, they do not augur well. The district judiciaryis expected to be the foundational court, and therefore, should have thefreedom of mind to decide a case on its own merit or else it might becomea stereotyped one rendering conviction on a moral platform. Indictmentand condemnation over a decision rendered, on considering all theH

materials placed before it, should be avoided. The Appellate Court isexpected to maintain a degree of caution before making any remark.

23. This court, time and again has laid down the law on the scopeof inquiry by an Appellate court while dealing with an appeal againstacquittal under Section 378 CrPC. We do not wish to multiply the aforesaidprinciple except placing reliance on a recent decision of this court inAnwar Ali and Anr. v. State of Himanchal Pradesh, (2020) 10 SCC166:

14.2. When can the findings of fact recorded by a court be heldto be perverse has been dealt with and considered in paragraph20 of the aforesaid decision, which reads as under: (Babucase [Babu v. State of Kerala, (2010) 9 SCC 189: (2010) 3 SCC(Cri) 1179])

“20. The findings of fact recorded by a court can be held to beperverse if the findings have been arrived at by ignoring orexcluding relevant material or by taking into considerationirrelevant/inadmissible material. The finding may also be saidto be perverse if it is “against the weight of evidence”, or if thefinding so outrageously defies logic as to suffer from the viceof irrationality. (Vide Rajinder Kumar Kindra v. DelhiAdmn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4SCC 635 : 1985 SCC (L&S) 131] , Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise &Taxation Officer-cum-Assessing Authority v. Gopi Nath &Sons, 1992 Supp (2) SCC 312] , Triveni Rubber &Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994Supp (3) SCC 665] , Gaya Din v. Hanuman Prasad [GayaDin v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC(Cri) 288] and Gamini Bala Koteswara Rao v. State ofA.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009)10 SCC 636 : (2010) 1 SCC (Cri) 372] )”

It is further observed, after following the decision of this Courtin Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. ofPolice, (1999) 2 SCC 10: 1999 SCC (L&S) 429], that if a decision isarrived at on the basis of no evidence or thoroughly unreliable evidenceand no reasonable person would act upon it, the order would be perverse.

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ABut if there is some evidence on record which is acceptable and whichcould be relied upon, the conclusions would not be treated as perverseand the findings would not be interfered with.

14.3. In the recent decision of Vijay Mohan Singh [Vijay MohanSingh v. State of Karnataka, (2019) 5 SCC 436: (2019) 2 SCC(Cri) 586], this Court again had an occasion to consider the scopeof Section 378 CrPC and the interference by the High Court [Stateof Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar10732] in an appeal against acquittal. This Court considered acatena of decisions of this Court right from 1952 onwards. Inpara 31, it is observed and held as under:

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“31. An identical question came to be considered before thisCourt in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. Stateof Gujarat, (1978) 1 SCC 228: 1978 SCC (Cri) 108]. In thecase before this Court, the High Court interfered with the orderof acquittal passed by the learned trial court on reappreciationof the entire evidence on record. However, the High Court,while reversing the acquittal, did not consider the reasons givenby the learned trial court while acquitting the accused.Confirming the judgment of the High Court, this Court observedand held in para 10 as under:

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‘10. Once the appeal was rightly entertained against theorder of acquittal, the High Court was entitled to reappreciatethe entire evidence independently and come to its ownconclusion. Ordinarily, the High Court would give dueimportance to the opinion of the Sessions Judge if the samewere arrived at after proper appreciation of the evidence.This rule will not be applicable in the present case wherethe Sessions Judge has made an absolutely wrongassumption of a very material and clinching aspect in thepeculiar circumstances of the case.’

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31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC412: 1998 SCC (Cri) 1320], the High Court reversed the order ofacquittal passed by the learned trial court and held the accusedguilty on reappreciation of the entire evidence on record, however,the High Court did not record its conclusion on the question whetherthe approach of the trial court in dealing with the evidence was G

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patently illegal or the conclusions arrived at by it were whollyuntenable. Confirming the order passed by the High Courtconvicting the accused on reversal of the acquittal passed by thelearned trial court, after being satisfied that the order of acquittalpassed by the learned trial court was perverse and suffered frominfirmities, this Court declined to interfere with the order ofconviction passed by the High Court. While confirming the orderof conviction passed by the High Court, this Court observed inpara 8 as under:

‘8. We have perused the judgment under appeal to ascertainwhether the High Court has conformed to the aforementionedprinciples. We find that the High Court has not strictly proceededin the manner laid down by this Court in Doshi case [RameshBabulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996SCC (Cri) 972] viz. first recording its conclusion on the questionwhether the approach of the trial court in dealing with theevidence was patently illegal or the conclusions arrived at by itwere wholly untenable, which alone will justify interference inan order of acquittal though the High Court has rendered awell-considered judgment duly meeting all the contentionsraised before it. But then will this non-compliance per se justifysetting aside the judgment under appeal? We think, not. In ourview, in such a case, the approach of the court which isconsidering the validity of the judgment of an appellate courtwhich has reversed the order of acquittal passed by the trialcourt, should be to satisfy itself if the approach of the trialcourt in dealing with the evidence was patently illegal orconclusions arrived at by it are demonstrably unsustainableand whether the judgment of the appellate court is free fromthose infirmities; if so to hold that the trial court judgmentwarranted interference. In such a case, there is obviously noreason why the appellate court’s judgment should be disturbed.But if on the other hand the court comes to the conclusion thatthe judgment of the trial court does not suffer from any infirmity,it cannot but be held that the interference by the appellatecourt in the order of acquittal was not justified; then in such acase the judgment of the appellate court has to be set aside asof the two reasonable views, the one in support of the acquittalalone has to stand. Having regard to the above discussion, we AB

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shall proceed to examine the judgment of the trial court in thiscase.’

31.2. In K. Ramakrishnan Unnithan [K. RamakrishnanUnnithan v. State of Kerala, (1999) 3 SCC 309 : 1999 SCC (Cri)410] , after observing that though there is some substance in thegrievance of the learned counsel appearing on behalf of theaccused that the High Court has not adverted to all the reasonsgiven by the trial Judge for according an order of acquittal, thisCourt refused to set aside the order of conviction passed by theHigh Court after having found that the approach of the SessionsJudge in recording the order of acquittal was not proper and theconclusion arrived at by the learned Sessions Judge on severalaspects was unsustainable. This Court further observed that asthe Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court,therefore, was fully entitled to reappreciate the evidence andrecord its own conclusion. This Court scrutinised the evidence of

the eyewitnesses and opined that reasons adduced by the trialcourt for discarding the testimony of the eyewitnesses were notat all sound. This Court also observed that as the evaluation of theevidence made by the trial court was manifestly erroneous andtherefore it was the duty of the High Court to interfere with anorder of acquittal passed by the learned Sessions Judge.

31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807: 1955Cri LJ 1653], in para 5, this Court observed and held as under:

‘5. It has been argued by the learned counsel for the appellantthat the judgment of the trial court being one of acquittal, theHigh Court should not have set it aside on mere appreciationof the evidence led on behalf of the prosecution unless it cameto the conclusion that the judgment of the trial Judge wasperverse. In our opinion, it is not correct to say that unless theappellate court in an appeal under Section 417 CrPC came tothe conclusion that the judgment of acquittal under appeal wasperverse it could not set aside that order.

It has been laid down by this Court that it is open to the HighCourt on an appeal against an order of acquittal to review theentire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumptionof innocence of the accused is not weakened but strengthenedby the judgment of acquittal passed by the trial court whichhad the advantage of observing the demeanour of witnesseswhose evidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powersof appreciation of evidence in an appeal against an order ofacquittal as in the case of an appeal against an order ofconviction, subject to the riders that the presumption ofinnocence with which the accused person starts in the trialcourt continues even up to the appellate stage and that theappellate court should attach due weight to the opinion of thetrial court which recorded the order of acquittal.

If the appellate court reviews the evidence, keeping thoseprinciples in mind, and comes to a contrary conclusion, thejudgment cannot be said to have been vitiated. (See in thisconnection the very cases cited at the Bar, namely, SurajpalSingh v. State [Surajpal Singh v. State, 1951 SCC 1207: AIR1952 SC 52]; Wilayat Khan v. State of U.P. [WilayatKhan v. State of U.P., 1951 SCC 898: AIR 1953 SC 122]) Inour opinion, there is no substance in the contention raised onbehalf of the appellant that the High Court was not justified inreviewing the entire evidence and coming to its ownconclusions.’

31.4. In K. Gopal Reddy [K. Gopal Reddy v. State of A.P.,(1979) 1 SCC 355: 1979 SCC (Cri) 305], this Court has observedthat where the trial court allows itself to be beset with fancifuldoubts, rejects creditworthy evidence for slender reasons andtakes a view of the evidence which is but barely possible, it is theobvious duty of the High Court to interfere in the interest of justice,lest the administration of justice be brought to ridicule.”

ON MERIT:

24. The trial court considered the testimonies of the other witnessesfirst before embarking upon eye witnesses and the material witness. Itgives exhaustive reasoning for its ultimate conclusion. We have alreadyrecorded the fact that most of the witnesses turned hostile. PW-16, anindependent witness also states that she has not seen the occurrence A

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Aand she heard that the deceased was dead before taking to the hospital.The trial court took enormous pains in considering the evidence of all thewitnesses one by one.

25. On considering the evidence of PW-7, a shoe shop owner, itgives its cogent reasoning for its non-acceptance. The previous bill andBthe relevant bill had a difference of about 8 months in between and thiswitness has not seen who has purchased the chappals marked as M.O.8 from his shop. Similarly, PW-20 who was running an STD booth couldnot convince the trial court as he could not say that the accused hadmade calls from his booth. On motive, it was correctly analysed thatthere was nothing to implicate the accused with motive to murder theCdeceased.

26. PW-1 was the sterling witness of the prosecution. Certainly,he had an axe to grind against the accused who had given a complaintagainst him. He was facing a departmental enquiry and suspension. It istoo strange that he could be a chance witness. His evidence wasDthoroughly analysed by the trial court including the distance between hisplace of work and his residence. He did not use his wireless which wasnot in operation and went to the police station to give an oral complaintthe first time but the same was not registered. PW-25 was known to himand it is surprising as to why no attempt was made to save the deceasedEimmediately by taking him to the nursing home which was 50 metersaway as a normal human conduct. There are many contradictionsbetween the statements made by PW-1 and PW-2. We are also surprisedas to how the other chance witness Ramesh came to the place, onceagain, a person known to the family of the deceased. Though PW-1denied the complaint against him, he made an admission that he wasFunder suspension. There was no bloodstain of the deceased on PW-1 asagainst PW-2 and the same was also not matched. We are only notingthe above just by way of an illustration. The trial court went way beyondwhat we have recorded while disbelieving the evidence of PW-1.

27. PW-2 was also seen along with PW-1. He was another eyeGwitness. He was a duty constable. The trial court rightly doubted hispresence as well. Once again, even this witness has not given anycomplaint. We are dealing with the deposition of a police officer who isexpected to know his duty. While PW-2 did not make a complaint butwent on to do his duty, PW-1 did not attend to his duty thereafter orHinformed the police station in which he was posted. Though, PW-2 has stated that accused made an attempt to attack him by throwing one ofthe material objects, even the High Court has disbelieved that. The saidmaterial object was recovered from some other place as could be seenfrom the recovery memo, despite the fact that it was nobody’s case thatthe accused retrieved the same and kept it with them while being chased.

28. PW-25 is the doctor who is well known to PW-1. WhilePW-1 deposed that he did not actually accompany the deceased, PW-25did make a statement that both the police and public admitted thedeceased. This witness did admit that exhibit Ex. P-41 made a mentionthat the deceased was brought by PW-1 and Ramesh. We may note,both PW-1 and PW-2 did not speak about this. He had also stated thathe did not know whether the contents of Ex. P-41 as correct or not. Heacknowledged the fact that he was well known to PW-1 and his family.

29. On a reading of the evidence of PW-25 we do not find anyexistence of dying declaration in it. He had deposed that he did notremember whether the deceased told him that the accused attacked himand caused injuries. It is his further testimony that he had given Ex. P-41due to the persistence of the police. He did not remember whether policeasked him to name the accused under Ex. P-41.

30. We have also perused Exhibit P-38, the case sheet maintainedby PW-25. Exhibit P-38 though makes a mention about the accused, itdid not speak about any statement being made by the deceased aboutthe accused. It is interesting to note that PW-25 had stated that he didnot record the statement of the deceased and that there were manypolicemen and general public at the relevant point of time, which is againa statement contrary to the case put up by the prosecution. Thus, we arein agreement with the reasoning of the trial court for not accepting theevidence of PW-25.

31. The defence also examined one witness. This witness is aGovernment doctor being an expert in the field of surgery. He had clearlydeposed that it would be impossible for the deceased to be consciousafter suffering injuries as mentioned in Exhibit P-38, which is intestinescoming out. The trial court correctly considered this evidence.

32. Now we may come to the reasoning of the High Court. Wefeel it is unnecessary on the part of the High Court to make such strongcomments on the judgment written by the trial court. When the evidenceof PWs 1, 2 and 25 were not accepted by the trial court, there cannot be A

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Aa dying declaration in existence. The dying declaration was put forth bythe prosecution through the mouth of said three witnesses. As we find,that the evidence let in by them was found to not be trustworthy, therecannot be any dying declaration either in fact or in law. The High Courtalso did not consider the basis upon which the evidence of PWs 1, 2 and25 could be accepted and as to how the various reasons given by theBtrial court are not acceptable especially when it did not consider theevidence of the other witnesses. It rendered a conviction on mere surmise,even though an inference can never be the basis of a conviction whenthe testimony of a witness is not believed on cogent reasoning. We donot know as to how the High Court could give a finding that theCinvestigating officer was supporting the accused qua the contradictionelicited between Section 161 CrPC statement given by the witness asagainst deposition before the Court. We may note that the allegedoccurrence was said to have happened at about 5 p.m. on a busy roadwith heavy traffic and even the evidence of PW-1 and PW-2 suggeststhat there were about 1000 persons. Except the evidence of PW-1 andDPW-2, there was no other evidence relied upon by the prosecution.

33. In the conspectus of above, we are inclined to hold that theHigh Court did not undertake the exercise as mandated under Section378 read with Section 384 CrPC in reversing the reasoned decisionrendered by the trial court. Thus, the appeals are accordingly allowed.EConsequently, the orders of conviction passed by the High Court standset aside.

Divya Pandey

Appeals allowed.

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