Page 1 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)

1

Page 2 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.

2

Page 3 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

3

Page 4 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

4

Page 5 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

5

Page 6 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.

6

Page 7 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

7

Page 8 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

8

Page 9 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

9

Page 10 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

10

Page 11 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

11

Page 12 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

12

Page 13 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

13

Page 14 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.

14

Page 15 14.An early but exhaustive consideration of the law in this regard is

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

1

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)

15

Page 16 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. State

2

, Balbir Singh v. State of Punjab

3

, M.G.

Agarwal v. State of Maharashtra

4

, Khedu Mohton v. State of Bihar

5

,

2

AIR 1954 SC 1

3

AIR 1957 SC 216

4

AIR 1963 SC 200

5

(1970) 2 SCC 450

16

Page 17 Sambasivan v. State of Kerala

6

, Bhagwan Singh v. State of M.P.

7

and

State of Goa v. Sanjay Thakran

8

.

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 Karnataka

9

. 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

17

Page 18 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

18

Page 19 court. The issue had been dealt with by this Court in State of

Rajasthan v. Abdul Mannan

10

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

19

Page 20 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

20

Page 21 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.

21

Page 22 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

22

Page 23 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

23

Page 24 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.

24

Page 25 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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Page 26 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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Page 27 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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Page 28 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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Page 29 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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Page 30 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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Page 31 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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Page 32 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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Page 33 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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Page 34 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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