IMPORTANT POINT
Appellate Court in appeal against acquittal has to proceed more cautiously and only if there is absolute assurance of guilt of accused upon the evidence on record that order of acquittal is liable to be interfered with.

Headnote:(i) Indian Penal Code, 1860-Sections 302, 323 and 324 r/w 34-Appellants assaulted PW3 and PW4 and then deceased intervened and he was attacked by iron rod and sword-Accused then dragged deceased to residential compound of A3 and then A2 inflicted forceful cut on front of neck of deceased who died on spot-Trial Court acquitted accused holding that prosecution failed to establish that incident in question had taken place at the time and place mentioned by it and defence version appeared probable-High Court in State appeal convicted appellants-Appeal-Evidence of PW1, fact that FIR reached Magistrate more than after 36 hours and medical evidence as to presence of rigor mortis showed that incident had taken place between 3 to 4 a.m. as contended in defence and not at 8.30 a.m. as projected by prosecution-Discrepancies rejected by High Court as irrelevant and minor was not approvable-Most of reasons given by High Court for rejecting conclusions of trial Judge were unacceptable-Conviction could not be sustained. (Paras 10, 11, 19 & 20)
       (ii) Criminal Procedure Code, 1973-Section 378-Appeal against acquittal-Law relating to appreciation of evidence by High Court-Court has to proceed more cautiously and only if there is absolute assurance of guilt of accused upon the evidence that acquitted can be interfered.
       Held : At this juncture, we would like to bear in mind the law laid down by this Court in regard to reappreciation of evidence by the High Court in appeal against acquittals. This Court in Dhanna etc. v. State of M.P. [1996 (10) SCC 79] had laid down that though the High Court has full power to review the evidence and to arrive at its own independent conclusion whether the appeal is against conviction or acquittal. While doing so it ought to bear in mind : first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. Secondly, it should bear in mind that every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him, he would retain that benefit in the appellate court also. Thus, the appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. (Para 19)

JUDGMENT

Santosh Hegde, J.-The two appellants herein who were accused Nos. 1 and 2 before the IIIrd Additional Sessions Judge, Ernakulam, are in appeal before us in this appeal filed under Section 379 of the Code of Criminal Procedure. The appeal is filed against the judgment of the High Court of Kerala at Ernakulam made in Criminal Appeal No. 41 of 1995. In the said judgment, the High Court reversed the judgment of the learned Sessions Judge and convicted the appellants herein of offences punishable under Sections 302, 323 and 324 read with 34 IPC and awarded a sentence of imprisonment for life as also on the charge for an offence under Section 302. A sentence of RI for one year for offences punishable under sections 323 and 324 read with Section 34 IPC was awarded in addition to the sentence already imposed under Section 302 IPC. The co-accused namely Ummer son of Kochunni who stood convicted under Sections 323 and 324 read with 34 and sentenced to undergo RI for one year by the impugned judgment of the High Court has preferred the connected SLP which will be taken up for consideration separately.

2. The case of the prosecution as presented to the trial court is that in an altercation that took place between Kunjumuhammed PW-3, Kochunni PW-4, Khadarkunju PW-5 on one side and Moosakutty A-2, Ummer A-3, Ali A-4, Kochunni A-5, Ashraf A-6 and Subair A-7 on the other, on 3-11-1991 at about 8.15 a.m. on the North-Eastern portion of Korathukudy House No. III/209 of Vengola Panchayat, the abovesaid accused persons assaulted Kochunni PW-4 and Kunjumuhammed PW-3. At that time the deceased Majeed came to the place of the incident and resisted the said accused from assaulting PWs. 3 and 4 at which time Ummer A-3 beat Majeed with an iron rod MO-1 which blow was warded off by Majeed who caught hold of the iron rod and a scuffle ensued between Majeed and Ummer A-3. At this point of time. Kunjumohammed A-1 came to the scene with a fishing sword MO-2 and stabbed on the back of Majeed with the same. Majeed having received the said stab injury then allegedly turned towards A-1 and caught hold of the sword which was pulled back by A-1 who again stabbed Majeed on the left side of his chest. Seeing the assault on Majeed it is stated Muhammed PW-2 rushed to the scene but he was intercepted and stabbed by A-1 on the right side of the lower part of his belly. PW-2 then caught hold of the sword but he was assaulted by Ummer A-3 on the head with the iron rod. At that point of time the prosecution alleges accused 2 and 4 to 7 dragged Majeed to the residential compound of the 3rd accused and put Majeed in a supine position and A-4 exhorted others by shouting "cut this pig s throat". The prosecution then alleges that the second accused got MO-2 a sword from the first accused and inflicted a forceful cut on the front of the neck of Majeed due to which injury Majeed died on the spot. It is the further case of the prosecution that on the same day at about 8.45 a.m. Sacaria PW-1 went to the Perumbavoor Police Station which is about 2 to 3 kms. from the place of incident and lodged a complaint as per Ex. F-1. The Assistant Sub-Inspector of Police, PW-18 attached to the said Police Station recorded Ex. P-1 and registered Crime No. 408/91, he then sent the file to the Circle Inspector of Police, PW-19, who initiated the investigation of the case and proceeded to the scene of incident at about 9 a.m. and prepared inquest Panchnama as per Ex. P-6 which was attested by PW-10 Azeez. The I.O. (PW-19) also seized MO-4, a lungi found on the body of Majeed, a thorthu (MO-3) found near the body of Majeed and also MO-5 slippers. Thereafter he sent the body to Kottayam Medical College hospital for postmortem examination. He then conducted the Mahazar of the scene of the incident. On search of the house of the 3rd accused he found and seized MOs 1 and 2 as per Ex. P-8 which was attested by Mohammad PW-12.

3. The postmortem of the body of the deceased was conducted at about 1.

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2003 Supreme(SC) 743

IMPORTANT POINTAppellate Court in appeal against acquittal has to proceed more cautiously and only if there is absolute assurance of guilt of accused upon the evidence on record that order of acquittal is liable to be interfered with.

Cases Referred (2)

IMPORTANT POINT
Appellate Court in appeal against acquittal has to proceed more cautiously and only if there is absolute assurance of guilt of accused upon the evidence on record that order of acquittal is liable to be interfered with.