Full Judgment Text
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PETITIONER:
AJITSINGH THAKURSINGH & ANR.
Vs.
RESPONDENT:
STATE OF GUJARAT
DATE OF JUDGMENT09/01/1981
BENCH:
PATHAK, R.S.
BENCH:
PATHAK, R.S.
SARKARIA, RANJIT SINGH
CITATION:
1981 AIR 733 1981 SCR (2) 509
1981 SCC (1) 495 1981 SCALE (1)54
ACT:
Supreme Court (Enlargement of Criminal Appellate
Jurisdiction) Act, 1970-S. 2 Indian Penal Code, S. 302 High
Court setting aside order of acquittal of Sessions Court -
Approach to be adopted by High Court in exercising appellate
powers - High Court to consider whether integrality of
evidence alone can ensure that accused are guilty.
Limitation Act 1963, Art, 114 & S. 5-Delay in filing
appeal against order of acquittal-Condonation of-Any event
or circumstance arising after expiry of limitation-whether
can constitute ’sufficient cause’.
HEADNOTE:
The two appellants who were father and son alongwith
another son, who was acquitted were charged with the offence
of committing the murder of the deceased and of causing
injuries to his two brothers all of whom were residing in a
chawl belonging to the first appellant. The prosecution
alleged that on the fateful day the appellants demanded
payment of rent from the deceased and refusal to make
immediate payment infuriated the second appellant who
inflicted two kirpan blows on him. When the deceased started
running to the room of his brothers he was pursued and
further kirpan blows were inflicted on him. His brothers
were also attacked by the three accused. After the incident
all the accused ran away from the place leaving their
bicycles behind. The deceased succumbed to his injuries in
the hospital and one of his brothers was admitted as an
indoor patient.
The three accused were tried by the Addl. Sessions
Judge. As there were material contradictions in the ’eye
witnesses’ account of the sequence of events, the exact
places where the blows were struck, and the role played by
each accused and the seizure of four bicycles by the police
at the scene being inconsistent with the prosecution case
that three persons, the accused were involved the Sessions
Judge held the evidence to be untrustworthy and being of
opinion that it was unsafe and hazardous to convict the
accused on such testimony he gave them the benefit of doubt
and acquitted them.
No appeal was filed at first because the State
Government saw no case on the merits for an appeal. However,
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in a revision petition filed by one of the brothers of the
deceased the High Court declared that the case was a fit
case where the State Government should file an appeal.
Thereafter, the State Government filed an appeal, in the
High Court and prayed for condonation of the delay in filing
the appeal. The High Court condoned the delay considered the
appeal on its merits, and allowed it against the two
appellants. The appeal against the acquittal of the third
accused was dismissed.
Allowing the appeal to this Court:
^
HELD: 1(i) There was no sufficient cause for the State
not filing the appeal within time, and the High Court erred
in condoning the delay.
[512 F-H]
510
(ii) A party is entitled to wait until the last day of
limitation for filing an appeal. But when it allows
limitation to expire and pleads sufficient cause for not
filing the appeal earlier, the sufficient cause must
establish that because of some event or circumstance arising
before limitation expired it was not possible to file the
appeal within time. No event or circumstance arising after
the expiry of limitation can constitute such sufficient
cause. There may be events or circumstances subsequent to
the expiry of limitation which may further delay the filing
of the appeal. But that the limitation has been allowed to
expire without the appeal being filed must be traced to a
cause arising within the period of limitation. [512 G]
2(i) The High Court erred in interfering with the
judgment of the trial court. [515 D]
(ii) The approach to be adopted by the High Court when
exercising its appellate powers in a case of appeal against
an order of acquittal has been defined in a long line of
cases. As long ago as 1934, the Privy Council declared that
the High Court must give proper weight and consideration to
"such matters as (1) the view 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 approach has
been endorsed by this Court repeatedly and in a very recent
decision it has been held that if the main grounds on which
the Court below has based its order acquitting the accused,
are reasonable and plausible, and cannot be entirely and
effectively dislodged or demolished, the High Court should
not disturb the acquittal.
[514D-F; H
Warren Ducane Smith v. The King A.I.R. 1934 P.C.227 &
Ganesh Bhavan Patel & Anr. v. State of Maharashtra [1979] 2
S.C.R. 94, referred to.
(iii) The High Court after specifically referring to
the aforesaid legal position, overlooked the limitations
imposed on it and embarked on a course not warranted by law.
It took into particular regard a few considerations which
seemed to it to assume importance and has concentrated on
some of the material only, omitting to consider in the
process that the integrality of the evidence alone can
ensure whether the accused are guilty. [515A, C]
In the instant case the High Court referred to the
recovery of a blood stained slipper and a diary from the
scene of the offence, and inferred that they belonged to the
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first appellant. This connection has not been properly
established. The papers found in the diary do not
necessarily show that the diary belonged to him. Nor is
there sufficient proof that the slipper is his.
[515 B]
3 The trial court wrote a careful judgment,
exhaustively considering all the evidence and on painstaking
analysis reached conclusion which are preeminently
reasonable and support the order of acquittal. [513 B]
JUDGMENT:
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
329 of 1979.
From the Judgment and Order dated 9-4-1979 of the
Gujarat High Court in Criminal Appeal No. 270/76.
511
Rajandra Prasad Singh, M/s. K. G. Vakharia, P. H.
Parekh and Ratan Karanjawala for the Appellants.
T. U. Mehta, M. N. Shroff and Himantika Wahi for the
Respondent.
The Judgment of the Court was delivered by
PATHAK, J. This appeal, preferred under the Supreme
Court (Enlargement of Criminal Appellate Jurisdiction) Act,
1970, is directed against the judgment and order of the High
Court of Gujarat setting aside the judgment and order of
acquittal passed by the trial court and convicting and
sentencing the appellants for offences under s. 302 read
with s. 34, Indian Penal Code, and under s. 326 read with s.
34 of the Code.
The appellants, Ajit Singh and Balwant Singh, are
father and son. Another son is Mohan Singh. All three were
charged with the murder of Manilal and with causing injuries
to Parmabhai, Bhulabhai and Natwarlal. The prosecution case
is that Manilal, Bhulabhai and Bhikabhai were three brothers
residing in a chawl belonging to the appellant Ajit Singh,
that on 9th April, 1975 Manilal drew his salary from the
factory where he worked and at about 6.45 p.m. on returning
to his room in the chawl he was met by the appellants and
Mohan Singh. They demanded payment of rent but Manilal said
he would pay it only on the next day. His refusal to make
immediate payment is alleged to have infuriated Balwant
Singh who, it is said, inflicted two kirpan blows on him.
Upon this Manilal started running away, pursued by the three
accused, and headed towards the room of Parmabhai. Further
kirpan blows were inflicted on him there by the appellants.
Parmabhai, who had emerged from his room, was also attacked
and given a kirpan blow. Manilal, meanwhile, turned and
entered the house of Shanabhai. Ajit Singh is alleged to
have struck him further blows there in consequence of which
he fell down. Bhulabhai, who arrived on the scene, was also
struck a kirpan blow. Mohan Singh is alleged to have wielded
a bamboo stick and hit Natwarlal on the head with it. All
three accused are said to have run away from the place then,
leaving their bicycles behind. Manilal was removed to the
hospital and declared dead. Parmabhai was admitted as an
indoor patient.
Shanabhai telephoned the police control room and
informed them of the incident, and the Gomtipur Police
Station recorded a complaint made by Bhulabhai.
512
The three accused were tried by the learned Additional
Sessions Judge, Ahmedabad (Rural), who after considering the
evidence on the record acquitted the accused by his judgment
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and order dated 15th October, 1975.
On 26th April, 1976 the State filed an appeal in the
High Court and prayed for condonation of the delay in filing
it. The High Court condoned the delay, considered the appeal
on its merits and allowed it against Ajit Singh and Balwant
Singh. They were convicted under s. 302 read with s. 34 of
the Code and sentenced to imprisonment for life. They were
also convicted under s. 326 read with s. 34 of the Code but
no separate sentence was passed thereunder. The appeal
against the acquittal of Mohan Singh was dismissed.
At the outset, it is urged by learned counsel for the
appellants that the High Court erred in condoning the delay
in filing the appeal, and the appeal should have been
dismissed as barred by limitation. We have examined the
facts carefully. It appears that initially the State
Government took a decision not to file an appeal and it
allowed the period of limitation to lapse. Subsequently, on
certain observations made by the High Court while
considering a revision petition by Bhulabhai that it was a
fit case where the State Government should file an appeal
and on notice being issued by the High Court to the State
Government in the matter, the appeal was filed. It was filed
three months after limitation had expired. A faint attempt
was made to show that when the initial decision was taken
not to file an appeal all the papers had not been considered
by the department concerned, but we are not impressed by
that allegation. The truth appears to be that the appeal was
not filed at first because the State Government saw no case
on the merits for an appeal, and it was filed only because
the High Court had observed-and that was long after
limitation had expired-that the case was fit for appeal by
the State Government. Now, it is true that a party is
entitled to wait until the last day of limitation for filing
an appeal. But when it allows limitation to expire and
pleads sufficient cause for not filing the appeal earlier,
the sufficient cause must establish that because of some
event or circumstance arising before limitation expired it
was not possible to file the appeal within time. No event or
circumstance arising after the expiry of limitation can
constitute such sufficient cause. There may be events or
circumstances subsequent to the expiry of limitation which
may further delay the filing of the appeal. But that the
limitation has been allowed to expire without the appeal
being filed must be traced to a cause arising within the
period of limitation. In the present case, there was no such
cause, and the High Court erred in condoning the delay.
513
It is pointed out that the High Court could have sent
for the record in the exercise of its revisional
jurisdiction and examined the case. That is quite another
matter and raises other questions. We are concerned here
with the question whether the delay in filing the appeal
could have been condoned.
But quite besides this, there was also no merit in the
appeal filed before the High Court. The trial court wrote a
careful judgment, exhaustively considering all the evidence
and on painstaking analysis reached conclusions which, in
our opinion, are pre-eminently reasonable and support the
order of acquittal. It found that the evidence did not
establish that the injury suffered by Bhulabhai could have
resulted from a kirpan, that the panch witnesses to the
recovery of the two kirpans did not support the prosecution,
that of the six eyewitnesses one of them, Ramiben, widow of
Manilal, was not present on the scene at all, that all the
eye witnesses had indulged in palpable falsehood in
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attempting to implicate Mohan Singh when plainly he was not
there (the State appeal against his acquittal was dismissed
by the High Court), that there were material contradictions
between the different eye-witnesses concerning the sequence
of events, the exact places where the blows were struck, and
the role played by each accused, that the information given
by one eye witness, Shanabhai, to the police control room
mentioned merely that four or five "sardarjis" had come to
the chawl and had injured two persons with a knife, and
although admittedly Shanabhai had known the accused by name
for the last four or five years he did not mention their
names in that report. It is also in evidence that it was
already dark when the incident took place and there were no
municipal lights within the limits of the chawl. The trial
court has further adverted to the circumstance that four
bicycles were seized by the police at the scene, which is
inconsistent with the prosecution case that three persons,
the accused, were involved. As regards the complaint filed
by Bhulabhai, the trial court has found that it could not be
admitted in evidence under s. 154, Code of Criminal
Procedure, and there was ample material to show that the
eye-witnesses had plenty of time to confer with one another
before the complaint was drawn up. The trial court also
adverted to the fact that the police did not record the
statement of the remaining eye-witnesses that very night.
The Prosecuting Inspector also admitted in cross-examination
that during the investigation all the eye-witnesses came
forward with "stereotype" statements. One other significant
fact remains. According to the evidence the incident was
witnessed by several other people, but not a single
independent witness has come forward to support the
prosecution. The eye-witnesses produced are either related
or members
514
of the same community; members of other communities also
lived in the chawl and admittedly were on cordial terms with
the complainant Bhulabhai and the other witnesses. The trial
court pointed out that the eye-witnesses were, already prior
to the incident, extremely hostile to the accused. There was
a running war between them in the matter of payment of rent,
and disputes had arisen concerning ownership of the property
and criminal proceedings had been taken. At this point, it
is relevant to note that Ajit Singh used to employ one
Shivram for collecting rents. In all the circumstances, the
trial court observed that when the witnesses could not
identify the four or five Sardarjis who had come to the
chawl, they put their heads together and decided to involve
Ajit Singh and his two sons. Holding that the evidence was
untrustworthy and it would be highly unsafe and hazardous to
convict the accused on such testimony the trial court gave
them the benefit of doubt and acquitted them.
We may observe that the High Court had before it an
appeal against an order of acquittal. The approach to be
adopted by the High Court when exercising its appellate
powers in such a case has been defined in a long line of
cases. As long ago as Warren Ducane Smith v. The King the
Privy Council declared that the High Court must give proper
weight and consideration to "such matters as (1) the view 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."
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The approach has been endorsed by this Court repeatedly, and
in a very recent decision, Ganesh Bhavan Patel & Anr. v.
State of Maharashtra to which one of us (Sarkaria, J.) was
party, it was also observed:
"Where two reasonable conclusions can be drawn on the
evidence on record, the High Court should as a matter
of judicial caution, refrain from interfering with the
order of acquittal recorded by the Court below. In
other words, if the main grounds on which the Court
below has based its order acquitting the accused, are
reasonable and plausible, and cannot be entirely and
effectively dislodged or demolished, the High Court
should not disturb the acquittal."
515
The legal position is well settled and, indeed, has
been adverted to by the High Court. But after specifically
referring to it the High Court appears to have overlooked
the limitations imposed on it and has embarked on a course
not warranted by law. It has taken into particular regard a
few considerations which seemed to it to assume importance.
It has referred to the recovery of a bloodstained slipper
and a diary from the scene of the offence, and has inferred
that they belong to Ajit Singh. We are not satisfied that
the connection has been truly established. The papers found
in the diary do not necessarily show that the diary belongs
to him. Nor is there sufficient proof that the slipper is
his. The High Court has concentrated on some of the material
only, omitting to consider in the process that the
integrality of the evidence alone can ensure whether the
accused are guilty. We are satisfied that the High Court
erred in interfering with the judgment of the trial court.
The appeal must, therefore, be allowed, the judgment and
order of the High Court set aside and the judgment and order
of the trial court restored.
These are the reasons which persuaded us to make the
order disposing of the appeal.
N.V.K. Appeal allowed.
516