SC: Guidelines on appeals against acquittal


Court :
Supreme Court of India

Brief :
The bench comprising of Justice R.M. Lodha and Justice Shiva Kirti Singh issued the following guidelines to the appellate courts in dealing with appeals against acquittal: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court, (ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.

Citation :
Surajpal Singh v. State; [AIR 1952 SC 52] Tulsiram Kanu v. State;[AIR 1954 SC 1] Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637] Atley v. State of U.P.; [AIR 1955 SC 807] Aher Raja Khima v. State of Saurashtra; [AIR 1956 SC 217]

                                                                                REPORTABLE

IN THE SUPREME COURT OF INDIA

CRIMINAL APPELLATE JURISDICTION

CRIMINAL  APPEAL NO.551 OF 2011

Muralidhar @ Gidda & Anr. … Appellants

 

  Versus

State of Karnataka             … Respondent

WITH

CRIMINAL  APPEAL NO.791 OF 2011

AND

CRIMINAL  APPEAL NO.1081 OF 2011

JUDGMENT

 

R.M. LODHA, J. 

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Page 1

These  three  criminal  appeals  arise  from  the  common 

judgment and, therefore, they were heard together and are being disposed 

of by the common judgment.

2. The statement (Ex.P-22) recorded by the police on 17.08.2002 

between 9.55 P.M. and 10.20 P.M. at K.R. Hospital, Mandya triggered the 

prosecution of  the appellants  and one Swamy.  Ex.P-22 is  in Kannada,  

which in English translation reads:

“The statement of Pradeep son of Swamygowda, 28

years,  Vakkaligaru  by  community,  agriculturist

residing at  Majigepura  village,  Srirangapatna Taluk.

Today at about 8.30 p.m. night,  I was sitting in front 

of shaving shop by the side of shop of Javaregowda

on K.R.S. – Majigepura Road along with Vyramudi,

Prakash  and  Umesh.   At  that  time  Naga,  S/o

Ammayamma,  Jagga  S/o  Sentu  Kumar’s  sister,

Gunda,  Gidda,  S/o Fishari  Nanjaiah,  Swamy, Manju

and Hotte Ashoka and others who were having old

enmity assaulted me by means of  chopper,  long on

my hand, head, neck and on other parts of the body

with an intention to kill  me and they have assaulted

Umesh who was with me.  Vyramudi  said do not kill 

us and went  away. Prakash ran away.  Please take

action against those who have attempted to kill me.”

3. After registration of the First Information Report (Exhibit P-5) 

on the basis of the above statement made by Pradeep which has become 

dying declaration in view of his death, the investigation commenced.  In the 

course of  investigation,  37 witnesses were examined.   The investigating 

officer, on completion of investigation, submitted challan against Naga @ 

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Page 2

Bagaraju (A-1), Jaga @ Santhosh Kumar (A-2), S. Sathish @ Gunda (A-3), 

Muralidhar @ Gidda (A-4), Swamy @ Koshi (A-5) and Manju (A-6).

4. The concerned Magistrate then committed the accused to the 

court  of  Sessions  for  trial.   The Court  of  Sessions  Judge,  Fast  Track 

Court–I,  Mandya conducted the trial   against A-1 to A-6 for the offences 

punishable under Sections 302, 307, 144, 148 read with Section 149 of the 

Indian Penal Code, 1860 (for short, “IPC”). The prosecution examined 37 

witnesses  of  which  PW-4  (Umesha),  PW-5  (Prakash)  and  PW-15 

(Vyramudi) were produced as eye-witnesses.  Exhibit P-22 is recorded by 

PW-30 (Rajashekar)  on the oration of  PW-36 (Kodandaram,  PSI)  in the 

presence of PW-25 (Dr. Balakrishna). 

5. The three eye-witnesses PW-4, PW-5 and PW-15 have turned 

hostile to the case of prosecution and have not supported the prosecution 

version at all.   In the circumstances, the only evidence that  has become 

significant  is  the  dying  declaration  (Ex.P-22).   The  trial  court  by  its 

judgment  dated  28.09.2004  on  consideration  of  the  entire  oral  and 

documentary evidence reached the conclusion that prosecution had failed 

to  prove  the  offence  against  the  accused  persons  and,  accordingly, 

acquitted them. 

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Page 3

6. The  State  of  Karnataka  preferred  an  appeal  before  the 

Karnataka High Court  against  the judgment  of  the Fast  Track  Court-I, 

Mandya acquitting the accused.   The High Court  on hearing the public 

prosecutor  and  the  counsel  for  the  accused  vide its  judgment  dated 

21.10.2010 maintained the acquittal  of  A5 (Swamy) but convicted A1 to 

A4 and A6 for the offences under Section 302 read with Section 149 IPC 

and  sentenced  them to  undergo  imprisonment  for  life  with  fine  and 

defaulting sentence.   The High Court  has  also  convicted them for  the 

offence under Section 148 IPC and they were sentenced to suffer rigorous 

imprisonment  for  one year.   Both  sentences have been ordered to  run 

concurrently.  It is from this judgment that these appeals, by special leave, 

have arisen. 

7. The High Court has convicted the appellants on the basis of 

dying declaration alone, as in its view the dying declaration is credible and 

genuine.   In  this  regard,  the  reasoning  of  the  High  Court  is  broadly 

reflected in paragraphs 16 and 17 which reads as follows:

“16. Having  heard  both  sides  and  carefully  gone

through  the  evidence  of  the  witnesses  and  on

reappreciation of the evidence we find that Ex. P22

which is the dying declaration of the deceased has

been  recorded  naturally  and  truthfully.  PW25  –

Doctor has categorically stated that the injured was

in a position to speak and give statement and further

he has signed Ex.P.22.  Under these circumstances,

it could be gathered that PW25 – the Medical Officer 

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Page 4

was not only a person present when Ex. P.22 was

recorded, but also asserted that the patient was in a

position to give  such  statement.   However,  on  a

careful scrutiny of Ex.P.22, it is seen that the name

of  Swamy  –  Accused  No.5  has  been  added

subsequently and there is no initial of any officer by

the side of the name of Swamy and the colour of the

ink differs from the other handwriting.  In view of the

foregoing  discussions  we  hold  that  the  dying

declaration  of  deceased  Pradeep  –  Ex.  P.22  is

genuine  and  has  been  recorded  by  PW30  –

Rajshekhar  in  the  presence  of  PW25  –  Dr.

Balakrishan when the deceased was in fit condition

to give statement  and hence,  a conviction can be

based on the said dying declaration. 

17. So  far  as  the  capacity  of  the  deceased  to

narrate  the  incident  regarding  the  cause  of  his

injuries  is  concerned,  on  perusal  of  Ex.  P.3  the

accident register it is clear that Ex.P.3 was brought

into  existence  at  9.30  p.m.  and  in  Ex.P3  it  is

mentioned that the assault was by six persons and

the  names  of  all  the  six  persons  are  mentioned

therein without  any over  writing.   The over  writing

pertains only to the presence of Vyramudi  and it is

the  contention  of  the  learned  counsel  for  the

accused that  over the name of  Vyramudi  name of

Pradeep is written.  In Ex.P.23 – requisition letter it

is  seen  that  signature  of  Vyramudi  is  separately

taken  by  the  doctor  as  brought  by  him  and,

therefore,  the  presence  of  either  Vyramudi  or

Pradeep  in  the  hospital  at  the  time  when  the

deceased  was  brought  to  the  hospital  cannot  be

disputed at all.”

8. The trial Court, however, held that it was not safe to act on the 

dying declaration (Ex.P-22).   The trial  court  on consideration of  Ex.P-22 

and the evidence of PW-25, PW-36 and PW-30 concluded that the time of 

recording Ex. P-22 did not inspire confidence and the credibility of Exhibit 

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Page 5

P-22  had  not  been  established  to  the  satisfaction  of  the  court  and 

conviction cannot be based on Exhibit P-22 and the deposition of PW-36, 

PW-25 and PW-30.  

9. The only  question that  arises for  our  consideration in these 

appeals is, whether the High Court was justified in upsetting the view of the 

trial court on re-appreciation of the evidence of PW-25, PW-30 and PW-36 

and Exhibit P-22.

10. Lord Russell in Sheo Swarup

1

, highlighted the approach of the 

High Court  as  an appellate court  hearing the appeal  against  acquittal. 

Lord Russell  said, “… 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.”  The opinion of the Lord Russell has been followed 

over the years.   

1

 Sheo Swarup v. King Emperor [AIR 1934 Privy Council 227] 

6

Page 6

11. As  early  as  in  1952,  this  Court  in  Surajpal  Singh

dealing with the powers of  the High Court  in an appeal  against acquittal 

under Section 417 of the Criminal Procedure Code observed,  “……….the 

High Court has full power to review the evidence upon which the order of  

acquittal was founded, but it is equally well settled that the presumption of 

innocence of the accused is further reinforced by his acquittal  by the trial 

court, and the findings of the trial court which had the advantage of seeing 

the witnesses and hearing their  evidence can be reversed only  for  very 

substantial and compelling reasons.”

12. The approach of  the appellate court  in  the appeal  against 

acquittal  has  been  dealt  with  by  this  Court  in  Tulsiram Kanu

Mohan Singh

Noor Khan

Khem Karan

2

3

4

5

6

7

8

9

9

4

,  Atley

5

 ,  Aher Raja Khima

, Khedu Mohton

13

, Bishan Singh

 Surajpal Singh v. State; [AIR 1952 SC 52] 

 Tulsiram Kanu v. State;[AIR 1954 SC 1]

10

6

,  Balbir  Singh

, Shivaji Sahabrao Bobade

14

, Umedbhai Jadavbhai

 Madan Mohan Singh v. State of U.P.; [AIR 1954 SC 637]

 Atley v. State of U.P.; [AIR 1955 SC 807]

 Aher Raja Khima v. State of Saurashtra;   [AIR 1956 SC 217]

 Balbir Singh v. State of Punjab; [AIR 1957 SC 216]

  M.G. Agarwal v. State of Maharashtra; [AIR 1963 SC 200]

 Noor Khan v. State of Rajasthan; [AIR 1964 SC 286]

10

11

12

13

14

15

16

 Khedu Mohton v. State of Bihar;  [(1970) 2 SCC 450],   

 Shivaji Sahabrao Bobade v. State of Maharashtra; [(1973) 2 SCC 793]

 Lekha Yadav v. State of Bihar;  [(1973) 2 SCC 424]

 Khem Karan v. State of U.P.; [(1974) 4 SCC 603]

 Bishan Singh v. State of Punjab; [(1974)  3 SCC 288] 

 Umedbhai Jadavbhai v. State of Gujarat; [(1978) 1 SCC 228]

 K. Gopal Reddy v. State of A.P. ; [(1979) 1 SCC 355]

15

7

11

3

2

  while 

,  Madan 

,  M.G. Agarwal

, Lekha Yadav

, K. Gopal Reddy

8

12

16

7

,  

,  

,  

Page 7

Tota Singh

17

, Ram Kumar

Harijana Thirupala

and Chandrappa

22

26

18

, Madan Lal

,  C. Antony

23

19

, Sambasivan

,  K.  Gopalakrishna

20

24

, Bhagwan Singh

,  Sanjay  Thakran

.   It  is  not  necessary  to  deal  with  these  cases 

individually.  Suffice it to say that this Court has consistently held that in 

dealing with appeals  against  acquittal,  the appellate  court  must  bear  in 

mind the following: (i) There is presumption of innocence in favour of an 

accused person and such presumption is strengthened by the order  of 

acquittal passed in his favour by the trial court, (ii) The accused person is 

entitled to the benefit of reasonable doubt when it deals with the merit of 

the appeal against acquittal,   (iii) Though, the power of the appellate court 

in considering the appeals against acquittal are as extensive as its powers 

in appeals against convictions but the appellate court is generally loath in 

disturbing the finding of fact recorded by the trial  court.  It is so because 

the trial court had an advantage of seeing the demeanor of the witnesses. 

If  the  trial  court  takes  a  reasonable  view  of  the  facts  of  the  case,  

interference by the appellate court  with  the judgment  of  acquittal  is  not 

17

18

19

20

21

22

23

24

25

26

 Tota Singh v. State of Punjab [(1987) 2 SCC 529]

  Ram Kumar v. State of Haryana; [1995 Supp (1) SCC 248]

 Madan Lal v. State of J&K;  [(1997) 7 SCC 677]

 Sambasivan v. State of Kerala; [(1998) 5 SCC 412] 

 Bhagwan Singh v. State of M.P.; [(2002) 4 SCC 85] 

 Harijana Thirupala v. Public Prosecutor, High Court of A.P.; [(2002) 6 SCC 470]

 C. Antony v. K. G. Raghavan Nair; [(2003) 1 SCC 1]

  State of Karnataka v. K. Gopalakrishna;  [(2005) 9 SCC 291]

 State of Goa v. Sanjay Thakran; [(2007) 3 SCC 755] 

 Chandrappa v. State of Karnataka; [(2007) 4 SCC 415]

21

8

,  

25 

Page 8

justified.   Unless, the conclusions reached by the trial  court  are palpably 

wrong or based on erroneous view of the law or if such conclusions are 

allowed to stand, they are likely to result in grave injustice,  the reluctance 

on the part of the appellate court in interfering with such conclusions is fully 

justified,  and (iv)  Merely  because the appellate  court  on re-appreciation 

and  re-evaluation  of  the  evidence  is  inclined  to  take  a  different  view, 

interference with the judgment of acquittal is not justified if the view taken 

by the trial  court  is a possible view.  The evenly  balanced views of  the 

evidence must not result  in the interference by the appellate court in the 

judgment of the trial court.

13. In Ghurey Lal

27

, the Court has culled out the principles relating 

to the appeals from a judgment of acquittal which are in line with what we 

have observed above.

14. Now, we shall examine whether or not the impugned judgment 

whereby the High Court interfered with the judgment of acquittal is justified.

15.              Of the 37 witnesses examined by the prosecution, PW-4, PW-

5 and PW-15 are the eye-witnesses but they  have turned hostile to the 

case  of  prosecution.    The  first  medical  examination  of  the  deceased 

Pradeep and so also the injured Umesha was done by PW1 (Dr. Latha) at  

about 9.30 P.M. on 17.08.2002.  She has not certified that Pradeep was in 

27

 Ghurey Lal v. State of U.P.; [(2008) 10 SCC 450]

9

Page 9

fit  state to make any statement.  PW-25 (Dr. Balakrishna) at the relevant  

time was Assistant Professor of Surgery at K.R. Hospital where deceased 

Pradeep was taken immediately after the incident.  At about 9.40 p.m. on 

17.08.2002,  PW-36 (Kodandaram,  PSI)  gave a memo to PW-25 stating 

that one patient (Pradeep) was admitted in the hospital and requested him 

to verify as to whether the patient was in a position to give statement.   In 

his  cross-examination,  PW-25 has stated that  at  9.35 P.M.,  he saw the 

patient  (Pradeep)  when he was kept  in operation theatre of  casualty  for 

emergency treatment.  He has also deposed that a group of doctors was 

providing treatment to him.  His deposition does not establish that Pradeep 

was  under  his  treatment.  The  recording  of  Pradeep’s  statement  by  a 

constable (PW-30) as dictated by PW-36 (PSI) in this situation raises many 

questions.  The trial court found this absurd.  It is the prosecution version 

that  PW-30 has recorded Ex.P-22  as dictated by PW-36 (PSI).   Thus, 

Ex.P-22  is  not  in  actual  words  of  the  maker.   The  trial  court  in  this 

background carefully considered the evidence of PW-25, PW-30 and PW-

36 along with  Ex.P-22.   The trial  court  has noted that  PW-25 failed to 

confirm in his testimony that he was treating deceased Pradeep when he 

was brought to the hospital.  Moreover, PW-25 admitted over-writing with 

regard to the time written on Ex.P-22.  The trial  court also observed that  

10

Page 10

though there was lot of bleeding injuries found on the person of Pradeep, 

PW-25 did not say anything about the quantity of loss of blood.

16. Dealing  with  the  testimony  of  PW-30,  the  trial  court  has 

observed that  in his cross-examination,  he has admitted that  he did not 

record the statement  in the words of  the maker (Pradeep) but  wrote the 

statement  as  dictated  by  PW-36.   Moreover,  PW-30  in  his  cross-

examination had admitted that at the time Pradeep was attended to by the 

doctors, he was not inside.

17. Then,  in respect of Ex.P-22, the trial  court  observed that the 

names of  accused Gunda (A-3) and Swamy (A-5)  appear  to have been 

inserted in different ink later on.

18. On a very elaborate consideration of the entire evidence, the 

trial court was of the view that Ex.P-22 did not inspire confidence and the 

credibility  of  Ex.P-22 has not  been established to the satisfaction of  the 

court.   Accordingly,  the  trial  court  held  that  conviction  of  the  accused 

persons cannot be based on Ex.P-22 and the deposition of PW-36, PW-25 

and PW-30.

19. The  sanctity  is  attached  to  a  dying  declaration  because  it 

comes  from the mouth  of  a dying person.   If  the dying declaration is 

recorded not directly from the actual words of the maker but as dictated by 

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Page 11

somebody else, in our opinion, this by itself creates a lot of suspicion about 

credibility of such statement and the prosecution has to clear the same to 

the satisfaction of the court.  The trial court on over-all consideration of the 

evidence of  PW-25,  PW-30 and PW-36 coupled with the fact that  there 

was over-writing about the time at which the statement was recorded and 

also insertion of two names by different ink did not consider it safe to rely 

upon the dying declaration and acquitted the accused for want of any other 

evidence.  In the circumstances, in our view, it cannot be said that the view 

taken by the trial  court  on the basis  of  evidence on record was not  a 

possible view. The accused were entitled to the benefit of doubt which was 

rightly given to them by the trial court.

20. The High Court on consideration of the same evidence took a 

different view and interfered with the judgment of acquittal without properly 

keeping  in  mind  that  the  presumption  of  innocence  in  favour  of  the 

accused has been strengthened by their acquittal from the trial court and 

the view taken by the trial  court  as to the credibility  of  Ex.P-22 and the 

evidence of  PW-25,  PW-30 and PW-36 was a possible view.  The High 

Court  while upsetting the judgment  of  acquittal  has not  kept  in view the 

well  established principles  in  hearing the appeal  from the judgment  of 

acquittal.

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Page 12

21. Accordingly,  the appeals  are allowed.   The impugned 

judgment is set aside.  The judgment of the court of Sessions Judge, Fast 

Track Court–I  at  Mandya dated 28.09.2004 is restored.   The appellants 

shall be set at liberty forthwith, if not required in any other case.        

New Delhi,

April 09, 2014.

…..………………………….J.

(R.M. Lodha)

…..………………………….J.

(Shiva Kirti Singh)

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Page 13

 

Vineet Kumar
on 11 April 2014
Published in Criminal Law
Views : 2938


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