State Of Punjab vs Kulwant Singh @ Kanta

6 and pieces of cloth of the shirt and the parcel of iron rod were

sent to the Forensic Science Laboratory and the reports

regarding the same were received. Statements of the PWs were

recorded and after the completion of the investigation the

accused was sent up for trial.

The charge against the accused was for the alleged

commission of offence punishable under Section 302 I.P.C. for

having committed the murders of Sham Sunder, Lalji Tiwari

and Ashok Kumar and under Section 307 I.P.C. for causing

injuries to Gurpal Singh was framed on 16.1.1997. The

accused pleaded innocence and claimed trial.

The prosecution to prove its case against the accused

examined Dr. P.N. Girdhar (PW1), Dr. Meena Jagga (PW2), Dr.

Madan Gopal Sharma (PW3), Parminder Singh (PW4),

Raminder Singh (PW5), Gurpal Singh (PW6), Baljit 'Singh

(PW7), Beant Singh S.I. (PW8), Kulwant Chand M.H.C. (PW9),

Constable Harbans Lal as (PW10), Constable Balwindar Singh

(PW11) and ASI Gurmel Singh (PW12). The reports of the

7 Forensic Science Laboratory Ex.P.GG, Ex.P.HH, Ex.P.JJ and

Ex.P.KK have also been tendered in evidence.

The trial Court found that the evidence on record which

was substantial in nature clearly established the guilt of the

accused as there were three persons who had lost their lives

and, therefore, the death sentence was awarded. In appeal,

the High Court upset the conviction and directed acquittal.

3. Learned counsel for the appellate-State submitted that

this was a case where the accusations were established

against the accused and, therefore, the High Court was not

justified in interfering with the well-reasoned and elaborate

judgment of the trial Court.

4. In response, learned counsel for the accused-respondent

supported the judgment of the High Court.

8

5. It is to be noted that the pivotal witness was PW-6. He

claimed to be an eye-witness. In that sense, this was not a

case where prosecution relied on circumstantial evidence. The

High Court found that this witness was examined after about

a month of the incident. The only explanation offered was that

the witness was hospitalized and was lying in unconscious

state for about one week. Even if that be so, no explanation

was offered as to why after PW-6 was released from the

hospital he was not examined for about three weeks. The

investigating officer who could have thrown light on this

aspect was not examined. No reason was indicted for such

non-examination. The other relevant factor is that the alleged

incident took place around 12 midnight. The information was

lodged at about 8.30 a.m. PW-4 stated that he learnt about

the incident from Manjit Singh Mistri at about 7.00 a.m. and

when he went to the place of occurrence he found dead bodies

of two persons. From the back side of the hall he found that

dead bodies of the two deceased persons were burnt. He

noticed this aspect alongwith his brother Raminder Singh and

Manjit Singh Mistri. The respondent-accused was lying on

9 scattered pieces of gross in the lobby in front of the adjoining

bed room. Blood was oozing from his injured head. On coming

out he found Gurpal Singh (PW-6) lying unconscious on the

grassy ground. He made arrangements for sending Gurpal

Singh to the Civil Hospital, Muktsar alongwith Majjit Singh

Mistri. He went inside and when he saw that the accused-

respondent was alive, he was also sent to the Civil Hospital,

Muktsar. After that he claimed to have gone to the Police

Station to lodge the report. The High Court found that there

was abnormal delay in lodging the FIR. Learned counsel for

the appellate-State submitted that the informant Parminder

Singh (PW4) was told by Manjit Singh around 7.00 a.m. and

some time was spent for taking the injured person to the

hospital and thereafter the FIR was lodged and, therefore,

there was in fact no delay. It is to be noted that the High Court

found that the aforesaid Manjit Singh was not examined as a

witness. His evidence would have thrown considerable light as

to whether and when he informed the informant as claimed.

He is supposed to have taken Gurpal Singh to the hospital.

His non-examination has been rightly taken note of to be a

10 vulnerable factor by the High Court. There are certain other

aspects which need to be noted. PW-6 was taken to the

hospital. The doctor attending to him sent information to the

SHO of the concerned Police Station at 7.15 a.m. According to

the evidence of the doctor, he was taken to the hospital at

7.15 a.m. and immediately thereafter the information was sent

to the Police Station. Interestingly, the respondent was taken

to the hospital at 8.30 a.m. It has not been explained by the

prosecution as to why there was delay in sending the

respondent-accused to the hospital. Here again, doctor

attending to him sent information to the Police Station. It was

accepted before the High Court that before lodging of the FIR

by the informant, the intimations given by the police had

reached the police station. The effect of these informations

was not considered by the trial Court. Whether they

constituted FIR or not is another question. The third factor

which has weighed with the High Court to direct acquittal was

the non-explanation of the injuries on the accused. Though,

non-explanation of the minor injuries could not be a factor to

make the prosecution version vulnerable in all cases, but if

11 the injuries were of serious nature the prosecution has to

explain that aspect.

6. In the instant case, the evidence of the doctor who

examined the accused clearly stated that the injuries were on

account of dragging him on surface littered with broken

glasses. In that background the injuries on the accused had to

be explained.

7. Considering the scope of Section 417 Cr.P.C. (old)

(corresponding to Section 378 of present Cr.P.C.), the Privy

Council in Sheo Swarup & others Vs. King Emperor AIR

1934 PC 227, held that the Court gives full power to the

High Court to review at large the evidence upon which order

of acquittal is founded and to reach the conclusion whether

an order of acquittal needs to be reversed or not upon that

evidence, hence no limitation should be placed on that

power unless found expressly stated in the Code. However,

the Privy Council put certain principles as a matter of

caution to be observed by the appellate court stating that the

High Court should and will always give proper weight and

12 consideration to such matters before reaching its conclusion

upon facts, namely- (1) the view of the trial court as to the

credibility of the witnesses; (2) the presumption of innocence

in favour of the accused and that presumption is not

weakened by the fact that he has been acquitted at 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 by a Judge who had the advantage of seeing

the witnesses. To summarize the Privy Council observed:

"......To state this however is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice."

8. The aforesaid view was reiterated by the Privy Council in

Nur Mohammad V. Emperor AIR 1954 PC 151 and affirmed by

this Court also in Prandas V. State AIR 1954 SC 36. The

judgment of this Court was rendered by a Bench of six-

Hon'ble Judges of this Court. A three-Judge Bench of this

Court in Aher Raja Khima v. State of Saurashtra (1955 (2)

13 SCR 1285) observed that it is not enough for the High Court to

take a different view of the evidence; there must also be

"substantial and compelling reasons" for holding that the trial

Court was wrong. The words "substantial and compelling

reasons" observed in Khima's case (supra) sought to be

interpreted subsequently as if only in exceptional cases High

Court can interfere. The matter came up before this Court in

Sanwat Singh Vs. State of Rajasthan (1961 (3) SCR 120),

where a three-Judge Bench of this Court noted that the words

"substantial and compelling reasons" used in certain decisions

have created some difficulty in understanding the scope of the

said words. Explaining the same this Court held as under:

"This Court obviously did not and could not add a condition to s.417 of the Criminal Procedure Code. The words were intended to convey the idea that an appellate court not only shall bear in mind the principles laid down by the Privy Council but also must give its clear reasons for coming to the conclusion that the order of acquittal was wrong. "

9. It concluded as under:

14

"The foregoing discussion yields the following results (1) an appellate court has full power to review the evidence upon which the order of acquittal is founded; (2) the principles laid down in Sheo Swarup's case afford a correct guide for the appellate court's approach to a case in disposing of such an appeal; and (3) the different phraseology used in the judgments of this Court, such as. (i) "substantial and compelling reasons", (ii) "good and sufficiently cogent reasons", and (iii) strong reasons" are not intended to curtail the undoubted power of an, appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion; but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts; but should also express those reasons in its judgment which lead it to hold that the acquittal was not justified. "

10. A Constitution Bench of this Court again reviewed all the

aforesaid judgments in M.G. Agarwal vs. State of Maharashtra

(1963 (2) SCR 405) and reiterating the principles laid down in Sheo Swarup (supra), it affirmed the view taken by the this

Court in Sanwat Singh (supra) and held "it is not necessary

that before reversing a judgment of acquittal, the High Court

15 must necessarily characterised the findings recorded therein

as perverse."

11. In Shivaji Sahabrao Bobade Vs. State of Maharashtra

(1973) 2 SCC 793 it was held that "in law there are no fetters

on the plenary power of the appellate Court to review the

whole evidence on which the order of acquittal is founded

and, indeed, it has a duty to scrutinize the probative material

de novo, informed, however, by the weighty thought that the

rebuttable innocence attributed to the accused having been

converted into an acquittal the homage our jurisprudence

owes to individual liberty constrains the higher court not to

upset the holding without very convincing reasons and

comprehensive considerations. "

12. In K. Gopal Reddy Vs. State of Andhra Pradesh 1979 (2)

SCR 363 reiterating the principles as mentioned in Sheo

Swarup (supra), the this Court observed as under: 16

"............... Occasionally phrases like manifestly illegal', 'grossly unjust', have been used to describe the orders of acquittal which warrant interference. But, such expressions have been used more, as flourishes of language, to emphasise the reluctance of the Appellate Court to interfere with an order of acquittal than to curtail the power of the Appellate Court to review the entire evidence and to come to its own conclusion .....If. two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him...."

13. There has not been any change and in many subsequent

decisions, i.e., Ramesh Babu Lal Doshi Vs. State of Gujarat,

JT 1996(6) SC 79, George Vs. State of Kerala AIR 1998 SC

1376, Jaswant Singh Vs. State of Haryana, (2000) 4 SCC 484,

Bhagwan Singh and others Vs. State of M.P. J7 2002(3) SC

387 and Kallu Vs. State of M.P. JT 2006(12) SC 586, the

aforesaid views have been reiterated. This Court in

17 Chandrappa and Ors. v. State of Karnataka (2007 (4) SCC

415), having a complete retrospect on all the earlier

judgments, has culled down, in para 41, the following

principles regarding the power of the appellate court while

dealing with an appeal against an order of acquittal:

(1) An appellate Court has full power to review, appreciate and reconsider the evidence upon which the order of acquittal is founded

(2) The Code of Criminal 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 emphasize the reluctant 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 available to him

18 under the fundamental principle of criminal jurisprudence that every person should 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 it further reinforced, reaffirmed and strengthened by the trial court.

(5) If two reasonable conclusions are possible on the basis of evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."

14. In our considered view the acquittal as directed by the

High Court cannot be faulted. Even though it may be possible

hypothetically to take a different view on the evidence, we are

not inclined to interfere with the view of the High Court. The

appeal is, therefore, dismissed.

..........................................J. (Dr. ARIJIT PASAYAT)

.................................... ......J. (P. SATHASIVAM)

19 .................................... ......J. (Dr. MUKUNDAKAM SHARMA)

New Delhi, July 16, 2008

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