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TMI Blog2012 (10) TMI 1202X X X X Extracts X X X X X X X X Extracts X X X X ..... er Section 34/149 Indian Penal Code 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 Indian Penal Code 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 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 again ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 3. On the completion of the investigation, charge sheet was submitted against all the accused under different Sections of the Indian Penal Code. 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 120B, 147, 148, 332 and 302 read with Section 34/109/149 of the Indian Penal Code. The accused having pleaded not guilty were tried. In the trial held, 30 witnesses were ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... enal Code 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 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 o ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... piracy 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... il 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. 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 li ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... essions, 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 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... cquitting 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. 19. Insofar as the charge of criminal conspiracy Under Section 120B Indian Penal Code 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 P ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 Indian Penal Code 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 learne ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ade 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 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 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 th ..... X X X X Extracts X X X X X X X X Extracts X X X X
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