Full Judgment Text
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CASE NO.:
Appeal (crl.) 568-569 of 2004
PETITIONER:
Gowrishankara Swamigalu
RESPONDENT:
State of Karnataka & Anr
DATE OF JUDGMENT: 05/03/2008
BENCH:
S.B. Sinha & Harjit Singh Bedi
JUDGMENT:
J U D G M E N T
CRIMINAL APPEAL NOs. 568-569 OF 2004
S.B. SINHA, J :
1. A Mutt known as Sri Siddaganga Mutt (for short "Mutt") is
situated in the State of Kerala. Appellant was a ’junior Swamiji’
therein. He was declared as the successor of the ’senior Swamiji’ on
or about 21.05.1975. Disputes and differences are said to have arisen
between the two Swamijis. Police protection was given to the
appellant. Both of them, however, purported to have signed an
agreement on 13.05.1986. It was, however, not implemented.
The ’Mutt’ used to run a school. Respondent No. 2 herein was
admitted in the VIIIth standard in the said school of the Mutt. At the
material time, he was reading in the IXth standard therein.
On 18.07.1986 at about 8.30 a.m., the appellant allegedly
through PW \026 2 Palaksha and Gopinath called him to his office. The
office was partitioned, one part of it was converted into a bed room.
After Respondent No. 2 entered in the office, he was asked to rub
lemons on his body. He allegedly had stripped prior thereto.
Respondent No. 2 was also asked to take his clothes off.
2. Respondent No. 2 alleged that he was subjected to unnatural
offence by the appellant. His clothes, anus and panche (lungi) got
soiled. He was given a sum of Rs. 10/- and asked not to tell the same
to anybody else. The said activity of the appellant is said to have
continued upto 23.07.1986. He was every time offered some money.
In total a sum of Rs. 75/- was paid to him.
He allegedly came back to his house with his brother on
28.07.1986. He gave the dirty clothes for washing to his mother. His
mother found sticky substances in the lungi. When accosted, he
allegedly told her about the indecent behaviour of the appellant. PW-
8 Bhagawan Singh, the maternal uncle of Respondent No. 2 (brother
of PW-4 mother Dushyanthi) at that time was also present. The
victim was allegedly persuaded to go back to the school. He came
back to the school on 3.08.1986. PW-9 Shivakumar and Natraj were
said to have been asked by the appellant to bring him again to his
office. He declined to come. He allegedly made a complaint to the
Senior Swamiji as regards the incident who assured him to look
thereinto and asked him not to make any complaint, the prestige of the
Mutt being involved. However, no action was allegedly taken.
He thereafter lodged a First Information Report on or about
29.08.1986 at about 6.30 p.m. Investigation in the matter took a long
time. A spot mahazar (Ex. P2) was drawn up only on 30.08.1986. On
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31.08.1986, the statement of PW-4 was recorded. The statement of
PW-2 Palaksha was recorded on 17.09.1986. The statement of
Gopinath was taken on 23.11.1986. However, he was not examined
in court. Statement of PW-9 Shivakumar, another student was
recorded on 2.12.1986. The statement of PW-8 Bhagawan Singh was
taken on 31.08.1987. Chargesheet in the case was filed only on
9.05.1988. Keeping in view the aforementioned fact, the Trial Court
initially discharged the appellant by an order dated 19.02.1990 which,
however, was set aside by the High Court by an order dated 3.09.1992
with the direction to dispose of the matter on merits.
3. The trial started in March, 1996. In the mean time, the
appellant was removed from the Mutt. Immediately, thereafter, he
filed a suit on 27.05.1988. The said suit is still pending.
Names of sixteen witnesses were cited in the chargesheet.
However, only thirteen of them were examined before the learned
Trial Judge. PW-1 is the complainant. PW-2 Palaksha was the
student who along with Gopinath allegedly was asked by the appellant
to bring Respondent No. 2 to his office. Gopinath who was a material
witness as also the Senior Swamiji who could throw enough light in
regard to the complaint made by Respondent No. 2 to him, for reasons
best known to the prosecution, were not examined. PW-2 although is
not an eye-witness but when the offence was being committed, he
allegedly knew as to what was going on as both he and Gopinath were
inside the room, although doors were closed and the place where the
bed was placed in the office room was divided only by a plywood
partition.
4. PW-3 Dr. V. Bangaraswami medically examined Respondent
No. 2 on 29.08.1986. PW-4 Dushyanthi is the mother of Respondent
No. 2. Shivakumariah PW-5 and Dharanesh PW-6 are witnesses to
mahazar. PW-7 Dr. Parashuram is a surgeon. PW-8 Bhagawan Singh
is the maternal uncle of Respondent No. 2. PW-9 Shivkumar and
Natraj are other students who were asked by the appellant to call
Respondent No. 2. Natraj, however, was not examined. PW-10 B.
Raghavendra Rao proved the report of the forensic laboratory. PWs.
11, 12 and 13 were the investigating officers.
5. The learned Trial Judge recorded a judgment of acquittal
opining:
"32. Thus, in view of the above said
discussion, I am considering the evidence of
the PWs 1, 4, 8 and 9 and also the medical
evidence, namely, PWs 3, 7 and 10 and also
the evidence of the investigating agency, it
is clear that, there is a long gap in recording
the statement of the witnesses by the
Investigating Agency. As observed earlier,
the evidence of the PW1 is not supported by
any medical evidence and the alleged
version of PW1 regarding his visit to
Bangalore is contradictory, when it is
compared with the evidence of the PWs 4
and 8 and there is a delay in filing the
complaint, and the fact that, the evidence of
the PW1 he was called through the PW2 and
CW3, becomes improbable, looking to the
facts of the case, and there are improbable
circumstances in the case, and as the
evidence of the PW1 is not supported by the
medical evidence, and as such, his evidence
is not reliable, and there is abnormal and
extraordinary delay in filing the complaint,
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and the accused is not examined by any
doctor in this case and the circumstantial
evidence does not corroborate, the evidence
of the PW1, and they contradicted to him i.e.
PW1’s version and in view of the above said
discussion, a doubt arises about the
prosecution case and as such, the accused is
entitled for the benefit of doubt."
6. The State preferred an appeal thereagainst. Respondent No. 2
also filed a revision application, the maintainability whereof was in
question. Both the criminal appeal and the criminal revision
application were taken up for hearing together.
7. A disturbing feature that occurred before the High Court may
be noticed by us at this stage. Although the allegation against the
appellant was commission of a heinous offence, an attempt was made
by the court to get the civil disputes between the appellant and the
senior Swamiji settled.
The High Court in its judgment recorded that the appellant used
to come in an air-conditioned car and would hold press meetings
although the case was pending. He attributed the said conduct on the
appellant relying on or on the basis of a statement made by the public
prosecutor. The Public prosecutor, however, filed a memo before the
court denying and disputing the said statements attributed to him.
Curiously enough, the High Court directed the appellant to remain
present on all the dates of hearing. Only because on one of the dates
of hearing, he was not present, serious note thereof was taken and his
purported conduct, as noticed hereinbefore, was commented upon.
Appellant was found guilty of commission of the said offence
by the High Court. The judgment of acquittal was reversed.
A long hearing was given for imposition of sentence. State and
Respondent No. 2 prayed for imposing of life sentence as also a fine
of Rs.50 lakhs on him. Ten years’ rigorous imprisonment and a fine
of Rs. 25 lakhs, however, was imposed stating that the revision
application has been allowed in part.
8. Mr. Sushil Kumar, learned senior counsel appearing on behalf
of the appellant, would submit:
(i) The delay in lodging of the First Information Report having
not been explained satisfactorily, no reliance can be placed
thereupon. The First Information Report is in two parts and
the second part thereof would clearly show improvement
made by PW-1 in his statements made in the first part.
(ii) A bare perusal of the First Information Report would show
that the same was drafted by a person having good
knowledge of law.
(iii) The medical evidence adduced by the prosecution clearly
negates the charges.
(iv) The chance discovery of the offence by the mother and
maternal uncle of Respondent No.2 is wholly concocted, as
it is wholly unnatural that the lungi would not be washed for
a period of about 10 days although he had only two pairs of
lungi and two pairs of school uniforms.
(v) According to PW-4 and PW-8, Respondent No. 2 returned
home only on 18.08.1986 and remained in the house for
about 20 days which belies the story as narrated in the First
Information Report.
(vi) The High Court committed a serious error in reversing the
judgment of acquittal without considering the parameters
therefor.
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9. Mr. Sanjay R. Hegde, learned counsel appearing on behalf of
the State and Mr. M.N. Rao, learned counsel appearing on behalf of
Respondent No. 2, on the other hand, would submit:
(i) the offence alleged being a heinous one performed on a
child of 13 years which has ruined the life of a boy must be
viewed with all seriousness by this court.
(ii) In a case of this nature, it is wholly unlikely that a young
boy would lodge a false First Information Report,
particularly, when he was advised by his mother and
maternal uncle to inform the police only when an attempt
was made to repeat the offence.
(iii) The statement of Respondent No. 2 having not only been
corroborated by the other students of the school, being PWs.
2 and 9, also stand corroborated by the evidence of his
mother and uncle, PWs 4 and 8, respectively.
(iv) Respondent No. 2 has admitted his handwriting in the sheet
of the First Information Report which was marked as Exhibit
P1. The latter part of the First Information Report which
was marked as Exhibit P1B is really a statement under
Section 161 of the Code of Criminal Procedure and, thus,
there is no reason why the same cannot be relied upon.
(v) Absence of medical evidence in regard to commission of
offence is not conclusive as evidence of injury cannot be
found as the Respondent No.2 was examined after a period
of 40 days. Furthermore, injuries suffered by him which
might have been minor in nature might have been healed up
in ordinary course.
(vi) Statement of PW-4 that Respondent No. 2 came back to his
house immediately before Rakshbandhan day need not be
taken seriously by the court as she, having been hailing from
a lower strata of the society might not have been able to
remember the exact date after a period of 10 years.
10. Delay in lodging of a First Information Report although by
itself may not be a ground to disbelieve the entire prosecution case,
but each case must be judged on its own facts. If the story of PW-1 is
to be accepted at its face value, the court may not take serious notice
of delay in lodging the First Information Report. But, for the said
purpose, the entire facts and circumstances of this case must be taken
note of. The offence was said to have been repeated for seven days at
about the same time. It is wholly unlikely that a student of a school of
the Mutt, where compulsorily prayer has to be offered on a clean cloth
and as apart from two pairs of lungi and two pairs of school uniforms
he did not have anything else, had been putting on the same lungi at
least for about seven days while visiting the appellant at his call.
11. From the statements of PW-4, it appears that according to
Respondent No. 2, his mother used to come to the school for washing
the clothes once in a week or so. At the same time, soap had been
provided to Respondent No. 2 for washing his clothes. This conduct
on the part of Respondent No. 2 throws serious doubts to the whole
story. If Respondent No. 2 had returned to school on 3.08.1986 and
attempts were made by the appellant immediately thereafter to send
for him for repeating the commission of the same offence, there was
no reason why the First Information Report was not lodged
immediately.
Even PW-4 has categorically denied and disputed that she had
made any statement before the investigating officer after the First
Information Report was lodged on 31.08.1986. According to her, as
also PW-8, Respondent No. 2 came back to the house only on the
Rakshbandhan day and stayed there for 20 days. He had to be
persuaded to return to school. PW-8 came with them. It was he who
used to run the house; the husband of PW-4 for all practical purposes
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having nothing to do with the affairs of the house. The husband of
PW-4 has also not been examined.
PW-8 was attached to the Mutt. It was he, who was
instrumental for admission of the boy in the Mutt. He knew the
Administrator. He did not meet the appellant to make enquiries. He
did not meet the Senior Swamiji to lodge a complaint. He did not
even meet the Administrator.
PW-4 was not an illiterate lade. She had studied upto IXth
standard. She had been working in a school as an Aaya. Her sister is
a teacher in a school. It is, therefore, unlikely that no step would be
taken by the guardians when they came to know about the incident.
12. It is against natural human conduct that such an act would be
committed at 8 O’clock in the morning and that too continuously for
seven days.
The site plan shows that the office of the Senior Swamiji is only
5 feet away from the office of the appellant. There was a store room
and also a room for sitting of the other staff members attached to the
room. Even if PW-2 and Gopinath had been asked to bring
Respondent No. 2 with them, it is against all human conduct that after
closing the door they would be asked to be in the room and except
seeing the act with their own eyes, for all intent and purport they
would know what had been happening in the room. Despite the same,
according to PW-2, when they came out of the room, Respondent No.
2 was asked about what had happened. He allegedly stated
thereabout.
13. According to the complainant, PW-2 and Gopinath called him
only for the first day and not thereafter. How, then on all the other
days, he went to the office room of the appellant in the same way is
not explained. PW-2, Gopinath as also PW-9 were not studying with
him in the same class. They used to stay in the third floor of the
hostel; whereas Respondent No. 2 used to stay in the ground floor
thereof.
14. A bare perusal of the First Information Report itself shows that
it cannot be in the handwriting of a student studying in Class IX. It
was in very good handwriting. It was written systematically. There
was no mistake. There was no hesitation in writing. It was absolutely
neat and clean. The contents of the First Information Report clearly
demonstrate that the same has been drafted by a person who is well
versed in legal language. Immediately, a purported statement was
taken after the First Information report was lodged that there exists
some improvement therein is not in dispute. A further statement was
recorded that he had himself written the First Information Report.
The subsequent statement may not be a part of the First Information
Report being a statement under Section 161 of the Code; but the
defence is entitled to show that improvements have been made therein
vis-‘-vis the allegations made in the First Information Report.
15. PW-1 made the following statement in his deposition before the
Investigating Officer:
"I have myself written this application in my
own handwriting. As stated in my
application, the boys who took me to
Gowrishankar Swamiji closed the door and
stood inside only. After this incident I did
not inform it to anybody. The senior
Swamiji expelled Palaksha and Gopinath
who used to live with me in the Mutt. When
Gowrishankar Swamiji asked me to remove
my clothes, I was wearing one Green colour
stripped underwear, one white panche, one
baniyan and turmeric colour checked towel.
My mother has washed the said clothes.
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From my home town, when I returned to the
Mutt on 3-8-86, Shivakumar and Natraj,
boys of middle school came to me and told
me that Gowrishankar Swamiji is called me.
I was scared and I did not go. I informed
that the junior Swamiji had done such a
thing to the senior Swamiji in the evening at
about 8-30 p.m. I was afraid that some one
will beat me therefore, I did not give any
report about it. Today, I came to know that
Siddalingappa and Hebbak Mahadev are
searching for me and realizing that I cannot
allow it to continue like this. I have given
my written application."
16. We have noticed hereinbefore that despite the fact that
commission of such a heinous crime was reported to the police
authorities, how tardy the investigation was.
PW-4 in her deposition completely denied to have made any
statement before the police officer on 31.08.1986. The reason is not
very far to seek. Her attention was drawn to her previous statements
where she had alleged that her son had mentioned about the incidents
on 18.08.1986 and left the house on 28.08.1986. When her attention
was drawn to the other statements made by her before the
Investigating Officer, she stated:
"\005I do not know if I have stated before the
police in terms of D1 and D2. Before the
police I have not mentioned that I informed
my brother Bhagvan Singh that the children
have dirtied the clothes. Before the police I
have not mentioned that Bhagvan Singh
enquired my son Deepak Singh after coming
back from playing as to why he had dirtied
his clothes. Further, I have not mentioned to
the police that when my son Deepak Singh
told to Bhagvan Singh, I was present there.
My son went back five days after
coming\005"
17. PW-8 who, as noticed hereinbefore, was examined by the
police more than one year after the occurrence, viz., 31.08.1987, in his
cross-examination, stated:
"\005After about 2 months after they came for
Rakhi festival, my statement was recorded
by police. I might have informed the police
that we celebrate Rakshabandhan festival on
19-8-86. I have stated that on 18-8-86 the
children came to my sister’s house from the
Mutt for celebrating the festival. Two days
thereafter, my sister had washed the clothes
of the children. It is not correct to say that I
have not mentioned in the police statement
that my sister asked Deepak Singh why his
clothes were so dirty. My sister asked both
the children why they had dirtied the clothes
so much. At that time both the children
were in the house. From 18-8-86 both the
children stayed for about 20 days in my
sister’s house in Bangalore. After 20 days, I
encouraged the children and left them in the
Mutt. I have not seen Palaksha and
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Gopinath. Even when I went to leave the
children at the Mutt, I did not meet the
accused and ask him why he was having
such immoral intercourse with children and
how can he do such a thing. I did not go and
meet the Senior Swamiji and inform him
that your junior Swamiji is doing such a
thing\005"
18. Whereas according to PWs 4 and 8, they came to know about
the incident on or about 18.08.1986 and Respondent No. 2 and his
brother having stayed in the house for 20 days, it remains a mystery
how First Information Report could be lodged on 29.08.1986.
19. PW-3 Dr. V. Bangaraswami in his evidence stated:
"All the tissues around the anus are hard and
rough. At the time of answering the calls of
nature, the extra skin will be expanded.
Immediately after it will come to original
status. By examination I found that boy was
not habitually used for anal intercourse. If
there is continuous act of intercourse for
about a week or even 2,3 days we can find
out as whether he had any intercourse or
not."
20. Mr. Hegde relied on a decision of the Orissa High Court in
Mihir Alias Bhikari Charan Sahu v. State, Opp. Party [1992 (98)
Cr.LJ 488], wherein Ejaj Ahmad’s Sexual Offences and Modi’s
Medical Jurisprudence and Toxicology have been extensively quoted,
to contend that lacerations are likely to disappear if the examination is
made after two to three days and nature of injuries would also depend
upon several factors.
21. When an expert categorically ruled out the commission of the
unnatural offence having regard to his expertise, it was obligatory on
the part of the prosecution to draw his attention to the said authorities
so as to enable him to furnish an explanation. It may be true that
absence of medical offence by itself may not be a crucial factor in all
cases, but, the same has to be taken into consideration as a relevant
factor when other evidences point towards the innocence of the
appellant.
22. Why in a case of this nature, filing of chargesheet was unduly
delayed and could be filed only in May, 1988, i.e., only after the
dispute between Senior Swamiji and the appellant crystalised, is
beyond anybody’s comprehension. The High Court merely relied
upon the evidence of PW-1. His statements were taken as gospel
truth. Only on the basis thereof, all other factors pointing out the
discrepancies in the prosecution case were lost sight of.
23. A large number of irrelevant factors including the rate of
conviction, legalisation of sodomy in other countries had been taken
into consideration by the High Court. Appellant for no reason was
condemned in the clearest possible terms. He was accused to be
coming to the High Court in an air-conditioned car and holding press
conferences which was denied and disputed by the public prosecutor.
He was also branded as a habitual offender. Taking of such irrelevant
factors clearly demonstrates how the mind of the learned Judges of the
High Court stood influenced not only for the purpose of reversing a
judgment of acquittal but also for imposition of sentence. If the High
Court was clear in its mind that it was dealing with a criminal case
and that too the offence is a serious one, we fail to understand why it
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had made endeavours to mediate in the internal disputes of the Mutt
and for that purpose held sittings in chamber. We also fail to
understand as to why the presence of the appellant on each day of
hearing was insisted upon and his absence had been adversely
commented upon.
24. Mr. Hegde relied upon a recent decision of this Court in B.C.
Deva @ Dyava v. State of Karantaka [2007 (9) SCALE 338] to
contend that in a case involving sexual abuse the testimony of the
victim should ordinarily be believed. The factual matrix involved
therein was absolutely different as not only the prosecutrix was found
to be a consenting party, but immediately after the incident she rang to
her mother for the purpose of disclosing the incident and she felt so
depressed and humiliated as to lead her to the extreme step of ending
her life by jumping in a water tank. It was in the aforementioned
situation opined:
"12. Having carefully gone through the
evidence of the prosecutrix, we find no
plausible and justifiable reasons whatsoever
to disbelieve and discard her testimony. The
prosecutrix is a trust-worthy witness and her
evidence cannot be brushed aside on the
above-noted flimsy plea raised by the
accused."
The question as to whether the witnesses in criminal cases
irrespective of the nature of offence should be fully relied upon or not
would depend upon the fact of each case. There cannot be any
precedent on fact.
25. Reliance has been placed on State of Kerala v. Kurissum
Moottil Antony [(2007) 1 SCC 627] wherein it was held that in a case
of sexual assault whether corroboration is necessary or not is again a
question in regard whereto no hard and fast rule can be laid down. In
the aforementioned case, the victim was a girl of 10 years. The
accused trespassed into her house when she was alone and committed
an unnatural offence. The testimony of the girl found corroboration
from the medical evidence. It was observed:
"7. An accused cannot cling to a fossil
formula and insist on corroborative
evidence, even if taken as a whole, the case
spoken to by the victim strikes a judicial
mind as probable. Judicial response to
human rights cannot be blunted by legal
jugglery\005"
In any event, keeping in view the peculiar fact situation
obtaining herein, we are of the opinion that this is one of the rarest of
rare cases where a deeper scrutiny was necessary particularly when
the Trial Court had recorded a judgment of acquittal upon assigning
sufficient and cogent reasons and wherewith we agree.
26. Reference to State of Punjab v. Gurmit Singh and Others
[(1996) 2 SCC 384] does not take us any further. Therein it was
observed:
"\005The courts, therefore, shoulder a great
responsibility while trying an accused on
charges of rape. They must deal with such
cases with utmost sensitivity. The courts
should examine the broader probabilities of
a case and not get swayed by minor
contradictions or insignificant discrepancies
in the statement of the prosecutrix, which
are not of a fatal nature, to throw out an
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otherwise reliable prosecution case. If
evidence of the prosecutrix inspires
confidence, it must be relied upon without
seeking corroboration of her statement in
material particulars. If for some reason the
court finds it difficult to place implicit
reliance on her testimony, it may look for
evidence which may lend assurance to her
testimony, short of corroboration required in
the case of an accomplice. The testimony of
the prosecutrix must be appreciated in the
background of the entire case and the trial
court must be alive to its responsibility and
be sensitive while dealing with cases
involving sexual molestations."
27. The High Court also completely lost sight of the parameters of
its jurisdiction to reverse a judgment of acquittal. It is not a case
where only one view was possible. We are not unmindful that some
mistakes had also been committed by the learned Sessions Judge
which had been pointed out by Mr. M.N. Rao in the following terms:
(i) The PW7 has also stated in his evidence that "no
abnormality is detected as per Ex. P3". This goes to show
that the evidence of the PW1 and the evidence of PWs 3, 7
and 10 are taken together, it is clear that the evidence of the
PW1 is not corroborated by the medical evidence.
(ii) It is the defence of the accused that the PWs 1 and 2 and
CW3 and PW9 are not at all residing in the Mutt and they
are created against the accused.
(iii) The PW1 in the cross has admitted at page no. 19 that
against him the J.C. cases in J.C. No. 86/86, 59/87, 60/87,
61/87, 89/87 and CC 4350/90 were filed by the
Kyathasandra P.S.
but, then the High Court could have made an endeavour to
arrive at its independent findings.
Our approach to the case is not different as we have made all
endeavours to appreciate the testimony of the victim in the
background of the entire case.
28. We have ourselves gone through the materials on records very
carefully and are clearly of the opinion that the learned Trial Judge
was correct in its view.
29. We may at this juncture notice a few precedents operating in
the field.
In Jagdish & Anr. v. State of Madhya Pradesh [2007 (11)
SCALE 213], this Court held:
"12. The High Court while dealing with an
appeal from a judgment of acquittal was,
thus, required to meet the aforementioned
reasonings of the learned Trial Judge. There
cannot be any doubt whatsoever that
irrespective of the fact that the High Court
was dealing with a judgment of acquittal, it
was open to it to re-appreciate the materials
brought on records by the parties, but it is a
well-settled principle of law that where two
views are possible, the High Court would
not ordinarily interfere with the judgment of
acquittal. [See Rattan Lal v. State of Jammu
& Kashmir \026 2007 (5) SCALE 472].
14. It is unfortunate that the High Court
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while arriving at the aforementioned
conclusion did not pose unto itself the right
question. In the event, it intended to arrive
at a finding different from the one arrived at
by the Trial Court, it was obligatory on its
part to analyze the materials on record
independently. The High Court was also
required to meet the reasoning of the learned
Trial Judge. If the learned Trial Judge upon
appreciation of the evidence arrived at a
conclusion that the time of occurrence
disclosed in the First Information Report
was not correct inasmuch whereas the
occurrence is said to have taken place at
08.00 a.m. but in fact it took place much
prior thereto, it could not be opined that the
First Information Report was lodged within
an hour of the incident\005"
It was noticed:
"17. Yet again in Kallu alias Masih and
Others v. State of M.P. [(2006) 10 SCC
313], this Court opined :
"8. While deciding an appeal against
acquittal, the power of the Appellate Court
is no less than the power exercised while
hearing appeals against conviction. In both
types of appeals, the power exists to review
the entire evidence. However, one
significant difference is that an order of
acquittal will not be interfered with, by an
appellate court, where the judgment of the
trial court is based on evidence and the view
taken is reasonable and plausible. It will not
reverse the decision of the trial court merely
because a different view is possible. The
appellate court will also bear in mind that
there is a presumption of innocence in
favour of the accused and the accused is
entitled to get the benefit of any doubt.
Further if it decides to interfere, it should
assign reasons for differing with the decision
of the trial court."
[See also Rattanlal (supra) and Ramappa
Halappa Pujar & Others v. State of
Karnataka \026 2007 (6) SCALE 206]."
[See also Chandrappa & Ors. v. State of Karnataka 2007 (3)
SCALE 90 and Haji Khan v. State of U.P. [(2005) 13 SCC 353]
Recently in Abdul Gafur & Ors. v. The State of Assam [2007
(13) SCALE 801], a Bench of this Court held:
"10. The accused persons are not strangers
and were practically neighbours of the
informant and his family. The High Court
noted that there was no intention to falsely
implicate accused persons because of enmity
and there was no reason as to why dignity of
two young girls would be put at stake by
alleging rape. It is to be noted that in fact
rape was alleged but the Trial Court found
that there was no material to substantiate the
plea of rape. The evidence is totally
inconsistent and lacks credence. The High
Court’s observations were clearly based on
surmises and contrary to the factual
http://JUDIS.NIC.IN SUPREME COURT OF INDIA Page 11 of 11
scenario. The High Court has noted that the
evidence of PWs. 1,2,3,5 & 8 stand fully
corroborated by the medical evidence.
Significantly, on consideration of the
evidence of PW 4, it is clear that the
evidence of this witness is clearly contrary
to the medical evidence. To add to the
confusion, it is noted that the High Court
recorded as finding that appellant Abdul
Gafur was absconding. As a matter of fact
the evidence of Investigating Officer (in
short the ’I.O’) shows that he had arrested
Abdul Gafur on the date the First
Information Report (in short the ’FIR’) was
lodged. Unfortunately the High Court has
merely referred to certain conclusions of the
Trial court without analyzing the evidence
and various submissions made by the
appellants. To add to the vulnerability of the
prosecution version, the FIR was lodged
long after the incident and in fact law was
already set on motion after the telephonic
message had been received.
11. The aforesaid infirmities in the
background of admitted animosity between
the parties renders the prosecution version
unacceptable. The Trial Court and the High
Court did not analyse the evidence correctly
and acted on mere surmises and conjectures.
That being so, the appellants deserve to be
acquitted, which we direct."
The High Court unfortunately failed to bear in mind the
aforementioned legal principles. The High Court misdirected itself at
various stages. It was wholly unfair to the appellant.
30. For the reasons aforementioned, the appeal is allowed. The
judgment of conviction and sentence passed by the High Court is set
aside and the judgment of acquittal passed by the Trial Court is
restored. Appellant is set at liberty forthwith if not required in
connection with any other case.