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REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL     APPEAL     NO.     53     OF     2009   

1 Murugesan (A-5) S/o  Muthu   

2 Paramasivam (A-2) S/o Muthu   

3     Lakshmanaperumal (A-3)  S/o  Muthu   

4     Solaiappan (A-4)  S/o Muniyandi

5     Thirumani (A-1)  S/o  Solaiappan   

6     Muthumuniyandi (A-7)  S/o Yamaraj   

7     Kanthasamy (A-8)  S/o  Muthukkaruppan   

8     Lingam (A-9)   S/o Kannan

9 Govindan (A-10)

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S/o  Perumal   

10   Narayanan (A-12)   S/o Shanmugam   

11    Murugan (A-13)   S/o  Kannan   

12    Ganesan (A-14)   S/o Muthu

13    Shanmugam (A-15)   S/o  Solai Narayanan   

14    Ramalingam (A-16)   S/o Muthu   

15    Velmurugan (A-17)   S/o  Soliappan   

16    M.Marimuthu (A-18)   S/o Mookia

17    M.Marimuthu (A-19)         S/o Karuppasami ....Appellants

Versus

State through Inspector of Police       .…Respondent

J     U     D     G     M     E     N     T   

RANJAN     GOGOI,     J.   

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This appeal, under Section 379 of the Code of Criminal Procedure,  

1973 is against the order of the High Court of Madras reversing the  

acquittal of the appellants and convicting and sentencing each one of  

them under   different Sections of the Indian Penal Code (hereinafter  

shall be referred to as ‘IPC’).  All the accused persons have been  

convicted under Section 120 B of the IPC and sentenced to undergo  

rigorous imprisonment for a period of seven years each.   The  

accused appellants have also been found guilty under Section 302 of  

IPC for their individual acts or constructively under Section 34/149  

IPC 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 IPC 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  

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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 murdered and  

in the said case D-1, D-2 and D-3 were arrayed as accused. At the  

relevant point of time, the three deceased persons were on bail.  

There was another case pending against D-1 and D-2 in respect of an  

incident of a bomb attack on the rival party.  In connection with the  

said case, the aforesaid two deceased who were arrested were  

brought to the court of the Judicial Magistrate, Vilathikulam on the  

day of the occurrence, i.e. 22.09.1991 for execution of the bail bonds  

etc. so as to enable them to be released on bail. Thiru Bagavati (PW-

1), Alagar (PW-2), Periyasami (PW-3) and Kalimuthu (PW-4) along  

with D-3 had come to meet D-1 and D-2 in the court complex.  On  

the same day, A-14, A-15, and A-16 who were also under arrest in  

another case were brought by the police to the court complex for  

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purpose of further remand.  The other  accused persons  had come  

to see  A-14,  A-15, and A-16.  Both the groups, including the  

deceased and the accused who were brought from jail, were engaged  

in their respective conversations.    According to the prosecution, at a  

point of time between 2.00 p.m. and 3.00 p.m., A-14, A-15 and A-16  

asked the other members of the accused party who had come to  

meet them to finish off D-1 and D-2.  On being so instigated,  

according to the prosecution, the other members of the accused party  

inflicted fatal injuries on D-1, D-2 and D-3.  It  is  the further case of  

the prosecution that D-1, on being inflicted injuries by the accused  

persons, 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.    Thereafter, the FIR was sent to the  

Court of Judicial Magistrate, Vilathikulam which was received at about  

5.00. p.m. on the same day.    

The injured D-1 was shifted to the Government Hospital and on  

an intimation being sent by PW-20 Dr. Rajaram  (Raj Mohan),  

Assistant Civil Surgeon attached to Government Hospital, the learned  

Judicial Magistrate (PW-6)  came to the hospital to record the dying  

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declaration of the injured, Veeraperumal.  According to the  

prosecution, while his statement was being recorded, D-1, slipped  

into a coma and, thereafter, died at about 4.07 p.m.  The dying  

declaration (Exh P-4) was recorded in the presence of Paulsama,  

Medical Officer (PW-21) who had certified that the injured (D-1) was  

in a fit condition to make the statement.   It is the further 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.   

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3. On the completion of the investigation, charge sheet was  

submitted against all the accused under different Sections of the IPC.  

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 under Sections 120 B, 147,  

148, 332 and 302 read with Section 34/109/149 of the IPC.    The  

accused having pleaded not guilty were tried. In the trial held, 30  

witnesses were examined by the prosecution who had also exhibited a  

large number of documents besides as many as 20 material objects.  

Three witnesses were examined on behalf of the defence and as  

many as 10 documents were also exhibited.  The learned trial Judge  

by the judgment and order dated 16.04.1988 held that the charges  

levelled against the accused persons have not been proved beyond all  

reasonable doubt.  Accordingly, all the 23 accused were acquitted.  

On an appeal being filed by the State, the High Court by the  

impugned judgment and order dated 04-09-2008/19-09-2008 had 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  

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trial court in respect of A-20, A-21, A-22, and A-23 was, however,  

maintained by the High Court.   Of the 19 accused who have been  

convicted by the High Court, 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.

4. A reading of the judgment dated 16.04.1998 passed by the  

learned trial court indicates that the learned court did not consider it  

prudent to act on the evidence of PW-1 inasmuch as it was found that  

there are certain innovations in the evidence tendered by the said  

witness who is also closely related to at least two of the deceased  

persons. PW-2, PW-3 and PW-4 not having supported the prosecution  

case and having been declared hostile, the learned trial court thought  

it proper not to place any reliance whatsoever on the testimony of the  

said witnesses.   The evidence of PW-5 and PW-7, the Police  

constables who had escorted D-1 and D-2 to the court complex from  

the prison, was elaborately considered by the learned trial court  

before coming to the conclusion that the evidence of the two  

aforesaid witnesses did not inspire the confidence of the court.   The  

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detailed reasons which had persuaded the trial court to take the  

above view will be noticed in the discussions that will follow.     

 5. Coming to Ex. P-1, (complaint lodged by D-1 in the police station  

immediately after the incident) and the formal FIR lodged on that  

basis (Ex. P-22) the 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 IPC  

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  

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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 of DW-1,  

DW-2, and DW-3 to hold that the said evidence proved and  

established the presence of A-4 in the office of the Sub-Registrar and  

A-12 in ITI, Thoothukudi rather than at the place of the occurrence at  

the time of the incident.  The learned trial court, on the said finding,  

held the prosecution case to be false to the extent disproved by the  

defence evidence. It is on the aforesaid broad basis that the learned  

trial court thought it fit to come to the conclusion that in the present  

case the involvement of any of the accused has not been proved  

beyond reasonable doubt.   Consequently, the learned court thought  

it proper to acquit all the accused persons from all such charges that  

had been levelled against them by the prosecution.

8. Specifically in so far as the charge of criminal conspiracy under  

Section 120 B IPC is concerned, the learned trial court took into  

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account the evidence of  A-15, A-16 and A-17,  all of whom denied  

what the prosecution had alleged, namely, that on the day previous  

to the incident i.e. 21.09.1991, there was a meeting in the village  

where all the accused persons (except  A-14, A-15 and A-16) had  

planned and conspired to murder D-1 and D-2 on the next day when  

they were to be brought to Court.    In this regard, the learned trial  

court also took into account the statement made by the learned Public  

Prosecutor virtually admitting that, on the evidence adduced, no case  

of criminal conspiracy have been made out against any of the  

accused. In so far as  A-20 to A-23 are concerned the learned trial  

court specifically came to the conclusion that no evidence whatsoever  

had been adduced by the prosecution to show the presence of any of  

the aforesaid accused persons at the time and place of occurrence.

9. The very elaborate judgment of the learned trial court has been  

considered in an equally elaborate and exhaustive discourse by the  

High Court in the appeal filed by the State of Tamil Nadu. In so far as  

the charge under Section 120B is concerned, the High Court was of  

the view that the materials on record had established that all the  

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accused persons (except A-14, A-15 and A-16) had come to the court  

complex armed with dangerous weapons which was indiscriminately  

used on the victims merely at the call of A-14 to A-16.   The said  

evidence, according to the High Court, conclusively proved the  

commission of the offence under Section 120 B of the IPC. 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  

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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 this order along with the reasons set out by the learned  

trial court for taking the opposite view, once the aforesaid conclusion  

i.e. that PW-5 and PW-7 are reliable and trustworthy was reached by  

the High Court, the prosecution case had assumed an entirely  

different complexion. Proceeding further, the High Court also  

considered the evidentiary worth of the documents exhibited by the  

prosecution as Ex.P-1, Ex.P-2 and Ex.P-4 and held the said  

documents to be aiding the prosecution case.  The doubts expressed  

by the learned trial court with regard to the said documents were  

answered by the High Court to be of no consequence for reasons that  

we will shortly notice and consider.

11. Coming to the defence evidence, the   High Court was of the  

view that the evidence tendered by DW-1, DW-2, DW-3 did not  

conclusively prove the plea of alibi advanced on behalf of  A-4 and A-

12,  inasmuch as such evidence did not  establish the presence of the  

aforesaid two accused at the places claimed by them.  However, in so  

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far as A-20 to A-23 are concerned the High Court agreed with the  

findings of the learned trial court. Accordingly, while maintaining the  

acquittal of the aforesaid accused persons, i.e. A-20 to A-23, the High  

Court was of the view that the acquittal of all the other accused  

should be reversed and they are liable to be convicted for  different  

offences, details of which have already been noticed.   Thereafter,  

upon hearing each of the accused persons, the sentences in question,  

as already noted, were awarded.

12. We have heard Shri V. Kanagaraj, learned senior counsel for the  

appellants and Shri Guru Krishna Kumar, AAG for the State.  We have  

given our anxious consideration to the submissions made on behalf of  

the rival parties and we have carefully considered the oral and  

documentary evidence adduced by the parties in the course of the  

trial.

13. Before proceeding any further it will be useful to recall the broad  

principles of law governing the power of the High Court under Section  

378 Cr.PC, while hearing an appeal against an order of acquittal  

passed by a trial Judge.

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14. An early but exhaustive consideration of the law in this regard is  

to be found in the decision of Sheo Swarup v. King Emperor1  

wherein it was held that the power of the High Court extends to a  

review of the entire evidence on the basis of which the 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.

1  AIR 1934 PC 227 (2)

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Sections 417, 418 and 423 of the Code give to the High Court full  power to review at large the evidence upon which the order of  acquittal was founded, and to reach the conclusion that upon that  evidence the order of acquittal should be reversed. No limitation  should, 'be placed, upon that power, unless, it be found expressly  stated in the Code. But in exercising the power conferred by the Code  and before reaching its conclusions upon fact, the High Court should  and will always give proper weight and consideration to such matters  as (1) the views of the trial Judge as to the credibility of the  witnesses; (2) the presumption of innocence in favour of the accused,  a presumption certainly 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 at by a Judge who had the advantage of seeing  the witnesses. 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.

   (page 229 of the report)”

15. The principles of law laid down by the Privy Council in Sheo  

Swarup (supra) has been consistently followed by this Court in a  

series of subsequent pronouncements of which reference may be  

illustratively made to the following:  

Tulsiram Kanu v. State2, Balbir Singh v. State of Punjab3, M.G.  Agarwal v. State of Maharashtra4, Khedu Mohton v. State of Bihar5,  

2 AIR 1954 SC 1 3 AIR 1957 SC 216 4 AIR 1963 SC 200 5 (1970) 2 SCC 450

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Sambasivan v. State of Kerala6, Bhagwan Singh v. State of M.P.7 and  State of Goa v. Sanjay Thakran8.

16. A concise statement of the law on the issue that had emerged  

after over half a century of evolution since Sheo Swarup (supra) is  

to be found in para 42 of the report in Chandrappa & Ors. v. State  

of Karnataka9. The same may, therefore, be usefully noticed below:  

“42. From the above decisions, in our considered view, the following  general principles regarding powers of the appellate court while  dealing with an appeal against an order of acquittal emerge:  

(1) An appellate court has full power to review, re-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 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  

6 (1998) 5 SCC 412 7 (2002) 4  SCC 85 8 (2007) 3 SCC 755 9  2007 (4) SCC 415

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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 reinforced,  reaffirmed and strengthened by the trial court.

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

(emphasis is ours)

 17. Another significant aspect of the law in this regard which has to  

be noticed is that an appeal to this Court against an order of the High  

Court affirming or reversing the order of conviction recorded by the  

trial court  is contingent on grant of leave by this Court under Article  

136 of the Constitution. However, if an order of acquittal passed by  

the trial court is to be altered by the High Court to an order of  

conviction and the accused is to be sentenced to death or to undergo  

life imprisonment or imprisonment for more than 10 years, leave to  

appeal to this Court has been dispensed with and Section 379 of the  

Code of Criminal Procedure, 1973, provides a statutory right of appeal  

to the accused in such a case. The aforesaid distinction, therefore,  

has to be kept in mind and due  notice must be had of the legislative  

intent to confer a special status to an appeal before this court against  

an order of the High Court altering the acquittal made by the trial  

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court. The issue had been dealt with by this Court in State of  

Rajasthan v. Abdul Mannan10 in the following terms, though in a  

different context :

“12. As is evident from the above recorded findings, the judgment of  conviction was converted to a judgment of acquittal by the High  Court. Thus, the first and foremost question that we need to consider  is, in what circumstances this Court should interfere with the  judgment of acquittal. Against an order of acquittal, an appeal by the  State is maintainable to this Court only with the leave of the Court.  On the contrary, if the judgment of acquittal passed by the trial court  is set aside by the High Court, and the accused is sentenced to death,  or life imprisonment or imprisonment for more than 10 years, then  the right of appeal of the accused is treated as an absolute right  subject to the provisions of Articles 134(1)(a) and 134(1)(b) of the  Constitution of India and Section 379 of the Code of Criminal  Procedure, 1973. In light of this, it is obvious that an appeal against  acquittal is considered on slightly different parameters compared to  an ordinary appeal preferred to this Court.”

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.

10   2011 (8) SCC 65

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19. Insofar as the charge of criminal conspiracy under Section 120B  

IPC 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 trial Judge, therefore, acquitted all the  

accused of the said charge. The view taken by the learned trial Judge  

was definitely a possible view. As against the same, the High Court  

came to the conclusion that, notwithstanding the evidence of PWs  

15,16 and 17, the charge of criminal conspiracy has been established  

as the prosecution had succeeded in proving  that   the accused  

persons  (except  A-14, A-15 and A-16) had come to the place of  

occurrence armed with dangerous weapons and at the mere call of  

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the said accused, they had  attacked D-1, D-2 and D-3 with the  

weapons that they had brought. In this regard, the High Court relied  

on the fact that it is an established proposition of law that direct  

evidence of criminal conspiracy would rarely be forthcoming and a  

conclusion in this regard has to be, largely, inferential.  

20. On a careful consideration of this aspect of the case, 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 conclusion inasmuch  

as the presence of the accused at the spot armed with weapons and  

responding to the call of A-14, A-15 and A-16 to attack the deceased,  

even if assumed, in the absence of any further evidence, cannot  

establish a prior arrangement/agreement or a meeting of minds  

amongst the accused to commit the offence of murder so as to  

sustain a charge of criminal conspiracy under Section 120B IPC.  

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21. Before going into the main issue in the case, namely, the  

culpability of any or all the accused under Section 302 IPC either on  

the basis of constructive liability under Section 34/149 IPC or on the  

basis of the individual acts of the accused, an incidental aspect of the  

case with regard to the plea of alibi set up by A-4 and A-12 can be  

conveniently dealt with at this stage. The plea of alibi set up on behalf  

of the aforesaid two accused on the basis of the evidence of DWs - 1,  

2 and 3 was accepted by the learned trial court by holding that the  

defence evidence tendered in the case had established that at the  

time of the occurrence A-12 was in the ITI, Tuticorin whereas A-4 was  

in the office of the Sub-Registrar, Tuticorin. Reading 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  

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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  

IPC other than those dealt with in the discussions that have preceded.  

The trial court considered it prudent to view the testimony of PW-1  

with great care and circumspection as    the said witness is the  

younger brother of one of the deceased.  The learned trial court also  

took into account the fact that PW-1, though examined as an eye  

witness, could not specifically say as to which accused had assaulted  

which particular deceased and the weapon(s) used. That apart, the  

learned trial court took into account the fact that PW-1 had sought to  

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implicate the acquitted A-20 to A-23 who, admittedly, were not  

present at the place of occurrence as stated by the investigating  

officer of the case examined as PW-30.   

The learned trial court while considering the evidence of PW-2, PW-3,  

and PW-4, took into account the fact that all the said witnesses are  

closely related to the deceased and that they were declared hostile by  

the prosecution.  Specifically, it was noticed by the learned trial court  

that PW-2 had stated that immediately after incident had occurred he  

had run away from the place and had mingled with the crowd.   PW-2  

had further stated that he had not seen who had hacked whom.  PW-

3, it was noticed by the learned trial, had stated that he had returned  

to the place of the incident after taking lunch and, therefore, he did  

not see the occurrence.  On the other hand, PW-4 had stated that the  

assault was committed by a group of men and had not named any  

particular accused.  In such circumstances the learned trial court  

came to the conclusion that  the conviction of any of the accused  

under Section 302 IPC either for their individual acts or on the  

principle of constructive liability under Section 34/149 IPC would not  

be warranted on the basis of the evidence of PWs 1 to 4.    

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23.  The learned trial court, thereafter, proceeded to examine the  

evidence of PW-5 and PW-7, the police constables who had escorted  

D-1 and D-2 to the court complex.  On such consideration, the  

learned trial court came to the finding that the evidence of PW-5  

regarding pelting of stones on him and PW-7 by some of the accused  

was unacceptable as no resultant injuries are recorded in the wound  

certificates (Ex. P-15 and P-16). In this regard, the learned trial court  

also noticed that the injuries mentioned in the aforesaid wound  

certificates were caused by aruval and knife and ,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  

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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.  All these facts were duly  

taken note of along with the oral and documentary evidence adduced  

by the prosecution to show that D-1 had died at 4.07 PM.

24.  Apart from the above inconsistencies which were considered by  

the learned trial court to be grave and severe, the fact that the FIR  

registered at 3.15 p.m. was so registered, inter alia, under Section  

302 IPC though, admittedly, the deceased persons were alive at that  

time was also taken note of by the learned trial court as being a  

significant aspect of the case which required an explanation from the  

prosecution which was not forthcoming.   The discrepancies between  

Ex. P-1 wherein 11 accused were named and Ex. P-2 where none of  

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the accused were named and the contents of Ex. P-4 where only  

three accused were named were duly taken note of by the learned  

trial court apart from the fact that in Ex. P-2 it had been stated that  

4-5 persons from outside had come and committed the assault.    The  

prosecution had alleged that A-5 had received cut injuries on his  

forehand and 4 of his fingers had been severed due to an aruval blow  

aimed by A-1 on D-1 which fell on A-5.   The fact that the FIR filed  

with regard to injuries caused to A-5 by A-1 had ended in a closure  

report had also been considered by the leaned trial court.  The non-

examination of any disinterested witnesses though several such  

persons had witnessed the incident is an additional circumstance that  

was relied upon by the learned trial court to come to the conclusion  

that the accused appellants should be exonerated of the charges  

levelled against them.

25. In the above facts can it be said that the view taken by the trial  

court is not a possible view?  If the answer is in the affirmative, the  

jurisdiction of the High Court to interfere with the acquittal of the  

accused appellants, on the principles of law referred to earlier, ought  

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not to have been exercised.   In other words, the reversal the  

acquittal could have been made by the High Court only if the  

conclusions recorded by the learned trial court did not reflect a  

possible view.   It must be emphasized that the inhibition to interfere  

must be perceived only in a situation where the view taken by the  

trial court is not a possible view.  The use of the expression “possible  

view” is conscious and not without good reasons.  The said expression  

is in contradistinction to expressions such as “erroneous 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.”  

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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  

correctness or otherwise of any conclusion reached by a court has to  

be tested on the basis of what the superior judicial authority  

perceives to be the correct conclusion.   A possible view, on the other  

hand, denotes a conclusion which can reasonably be arrived at  

regardless of the fact where it is agreed upon or not by the higher  

court.  The fundamental distinction between the two situations have  

to be kept in mind.  So long as the view taken by the trial court can  

be reasonably formed, regardless of whether the High Court agrees  

with the same or not, the view taken by the trial court cannot be  

interdicted and that of the High Court supplanted over and above the  

view of the trial court.

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28. 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 Cr.P.C.  

was not called for.    

29.  However, 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 120 B  

IPC 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 disagreement with the conclusion of the High  

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Court that the defence evidence adduced in the case did not  

satisfactorily establish the plea of alibi put forward by A-4 and A-12  

have also been indicated.  The aforesaid aspects of the case,  

therefore, would not need any further dilation and it is the reasons for  

the conviction of the accused appellants under Section 302 and the  

other provisions of the IPC will be required to be noticed by us.   

30.  The High Court has concluded that the 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  

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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 any Test  

Identification Parade, according to the High Court, did not materially  

affect the prosecution case, as PW-5 and PW-7 had stated in their  

evidence that the accused used to frequently come to police station in  

connection with other cases in which they were involved.   

31.  We find it difficult to agree with the view taken by the High Court  

on the above aspects of the case.   Not mentioning the name of any  

of the accused in the report submitted to the court i.e.  Ex. P-2,  

particularly, when according to PW-5 and PW-7, the accused  persons  

were known to them is a vital lacuna which cannot be explained by  

confining the scope of the said report as has been done by the High  

Court.  At the same time, the narration of the names of several of the  

accused in the examination of PW-5 and PW-7 in court, in our view,  

would cease to be a mere discrepancy with reference to the earlier  

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version of the witnesses as mentioned in Ex. P-2.  The same would  

amount to an improvement or an exaggeration on the part of the  

prime witnesses of the prosecution thereby casting a serious doubt on  

their reliability.  PW-5 and PW-7 are supposed to be members of a  

disciplined force.  The lacuna in Ex. P-2 (absence of any names)  

cannot be reasonably understood to be on account of any shock  

suffered by the witnesses due to the incident.  The failure on the part  

of PW-5 and PW-7 to use the fire arms issued to them despite an  

assault committed by as many as 23 persons resulting to the death of  

three, as the prosecution has alleged, is both mysterious and  

inexplicable.  So is the registration of the FIR under Section 302 IPC  

at 3.15 p.m. when the deceased persons were still alive.  The efficacy  

of the dying declaration (Ex. P-4) when  the maker thereof had  

slipped into a coma even before completing the statement would have  

a serious effect on the capacity of D-1 to make such a statement. The  

certification made by PW-21 with regard to the condition of the  

deceased is definitely not the last word.  Though ordinarily and in the  

normal course such an opinion should be accepted and acted upon by  

the court, in cases, where the circumstances so demand such  

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opinions must be carefully balanced with all other surrounding facts  

and circumstances.  All the above, in our view, demonstrates the  

fragile nature of the conclusions reached by the High Court in the  

present case.

32. For the above reasons, we hold that conviction of the accused  

appellants recorded by the High Court under the different provisions  

of the IPC and the sentences imposed cannot be sustained.  We  

accordingly allow this appeal, set aside the judgment and order dated  

4.9.2008 & 19.09.2008 passed by the High Court of Madras and  

confirm the order of acquittal dated 16.04.1998 passed by the  

learned trial court.  The accused appellants, if in custody, be released  

forthwith unless required in any other case.

...…………………………J. [P. SATHASIVAM]

.........……………………J. [RANJAN GOGOI]

New Delhi, October 12, 2012.      

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