2002 Supreme(SC) 225

2002(1) Supreme 622
SUPREME COURT OF INDIA
(From Gujarat High Court)
R.P. Sethi and K.G. Balakrishnan, JJ.
Allarakha K. Mansuri -Appellant
versus
State of Gujarat -Respondent
Criminal Appeal No. 1285 of 1998
Decided on 14-2-2002
Counsel for the Parties :
For the Appellant : Uday U. Lalit and H.A. Raichura, Advocates.
For the Respondent : S.K. Dholakia, Sr. Advocate, Ms. Hemantika Wahi, Advocate.

IMPORTANT POINTS
1. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal and only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding.
2. Defective investigation by itself cannot be made a ground for acquitting the accused.

Headnote:(i) Criminal Procedure Code, 1973 -Section 378-Appeal against acquittal-Powers to be exercised by High Court-Power to review evidence-High Court should be slow in disturbing finding of fact arrived at by trial Court-If two views are possible on evidence adduced in the case-View favourable to accused should be adopted-Paramount consideration of court should be to avoid miscarriage of justice-Only because accused has been acquitted by trial Court, cannot be made a basis to hold that High Court under all circumstances should not disturb such a finding-Where view taken by trial Court was uncalled for, not based upon facts of the case or legal evidence tendered in the case and was result of conjectures, imagination and hypothesis-High Court held justified in re-examining whole evidence and convicting accused.

       Held : The settled position of law regarding the powers to be exercised by the High Court in an appeal against the order of acquittal is that though the High Court has full powers to review the evidence upon which an order of acquittal is based, it will not interfere with an order of acquittal because with the passing of an order of acquittal the presumption of innocence in favour of the accused is reinforced. The High Court should be slow in disturbing the finding of the fact arrived at by the trial Court. The golden thread which runs through the web of administration of justice in criminal case is that if two view 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. In our country it is not a jurisdictional limitation on the appeal court but a judge made guideline of circumspection. (Para 6)

       The paramount consideration of the court should be to avoid miscarriage of justice. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial court has taken a view based upon conjectures and hypothesis and not on the legal evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether the accused has committed any offence or not. Probable view taken by the trial court which may not be disturbed in the appeal is such a view which is based upon legal and admissible evidence. Only because the accused has been acquitted by the trial court, cannot be made a basis to urge that the High Court under all circumstances should not disturb such a finding. (Para 7)

       A critical examination of the judgment of the trial court shows that the view taken by it was uncalled for, not based upon the facts of the case or the legal evidence tendered in the case and was the result of conjectures, imagination and hypothesis. The High Court rightly held that the conclusions arrived at by the trial court were factually and legally incorrect. The High Court was, therefore, justified in re-examining the whole evidence produced in the case and to hold that the accused-appellant was proved to have committed the offence of murder beyond all reasonable doubt. He has rightly been convicted and sentenced for the commission of the aforesaid offence. We do not find any illegality or error of jurisdiction in the judgment of the High Court requiring our interference. (Para 8)

       (ii) Indian Penal Code, 1860-Section 302-Murder-Conviction-Killing by giving four successive dharia blows on vital organs of deceased-Weapon of offence recovered from appellant stained with blood having blood group of deceased-Evidence of eye witnesses corroborated by medical evidence proved prosecution case-Trial Court recording acquittal relying on circumstances or aspects not based upon legal evidence-High Court held justified in convicting accused by reversing acquittal-Criminal Procedure Code, 1973-Section 378.

       Held : In the instant case the trial Court relied upon certain aspects of the case as noticed earlier for passing an order of acquittal. Examined critically, none of the aforesaid circumstances or aspects can be held to be based upon legal evidence. Whether Exhibit 36 or Entry No. 20/89 is the First Information Report would not change the nature of the allegation made against the accused as no discrepancy is pointed out in the aforesaid entries. Entry No. 20 is recorded on the basis of report received from the Hospital and Exhibit 36 is on the basis of statement of the complainant Ali Mohamed. In the absence of any discrepancy in the aforesaid two documents, the accused-appellant could not be acquitted. The two entries did not make the so-called two versions possible. The only inference of the two entries is that occurrence had taken place in which Abdul Karim Ali Mohamed had died and the appellant had inflicted injuries. Similarly the time of death in no way proves the appellant to be innocent. In presence of the ocular testimony of eye-witnesses that occurrence had taken place on 27th March, 1989 at about 7.30 p.m. in which the injuries found on the person of the deceased were caused by the appellant, the time of death of the deceased ascertained on the basis of opinion of the Doctor was in no way helpful to the appellant. We also find that the trial court had no reason to hold that the identity of the weapon of offence was doubtful or Mamudu @ Abdulla (PW 9) was not the prosecution witness whose statement had been recorded under Section 161 of the Code of Criminal Procedure. The defects in the investigation holding it to be shaky and creating doubts also appears to be the result of the imaginative thought of the trial court. Otherwise also defective investigation by itself cannot be made a ground for acquitting the accused. The trial Court was also not justified in holding that the statement of the witnesses under Section 161 Cr.P.C. were recorded late by the police and that there was any chance of manipulation. The FIR is proved to have been recorded within 15 minutes of the occurrence and its copy furnished to the Magistrate within 24 hours, which rules out the possibility of manipulation. The contradictions in the evidence of the witnesses, referred to in the judgment of the trial court, are of very minor nature which instead of discarding their testimony strengthens the case of the prosecution of the witnesses being truthful as they were not shown to have made parrot like statements. A critical examination of the judgment of the trial court shows that the view taken by it was uncalled for, not based upon the facts of the case or the legal evidence tendered in the case and was the result of conjectures, imagination and hypothesis. The High Court rightly held that the conclusions arrived at by the trial court were factually and legally incorrect. The High Court was, therefore, justified in re-examining the whole evidence produced in the case and to hold that the accused-appellant was proved to have committed the offence of murder beyond all reasonable doubt. He has rightly been convicted and sentenced for the commission of the aforesaid offence. We do not find any illegality or error of jurisdiction in the judgment of the High Court requiring our interference. (Para 8)