Gauhati High Court
Shri Labanya Das vs State Of Assam And 11 Ors on 28 May, 2025
Author: Sk Medhi
Bench: Sanjay Kumar Medhi
Page No.# 1/20
GAHC010197722017
undefined
THE GAUHATI HIGH COURT
(HIGH COURT OF ASSAM, NAGALAND, MIZORAM AND ARUNACHAL PRADESH)
Case No. : Crl.A./220/2017
SHRI LABANYA DAS
S/O SRI HARICHARAN DAS, VILL. BORKHALA, P.S. GHAGRAPAR, DIST.
NALBARI, ASSAM,PIN 781350, MOB 8811021953
VERSUS
STATE OF ASSAM and 11 ORS
REPRESENTED BY ITS CHIEF SECY., DISPUR, GUWAHATI-6
Advocate for the Petitioner : MR.S SAIKIA, N BAISHYA,MR. M SARANIA,MR H
MEDHI,MR.P SARMAH
Advocate for the Respondent : MS.P BARUAH (R- 5 to 12), MR. R R KAUSHIK, ADDL.P.P.,
ASSAM,MS.M BARUAH(R- 5 to 12),MS.M DAS(R- 5 to 12),MR.A MOBARAQUE(R- 2,3&4),PP,
ASSAM,MS M DAS
BEFORE
HON'BLE MR. JUSTICE SANJAY KUMAR MEDHI
HON'BLE MRS. JUSTICE MARLI VANKUNG
For the Appellant : Shri M Sarania, Advocate.
For the Respondents : Ms. A Begum, Addl. PP, Assam;
Page No.# 2/20
Shri A Mobaraque, Advocate,
R/2, 3 and 4.
Shri UJ Saikia, Advocate, R/5 to
12.
Dates of Hearing : 05.05.2025 & 06.05.2025.
Date of Judgment : 28.05.2025.
Judgment & Order
SK Medhi, J.
The instant appeal has been preferred by the informant against the judgment
and order dated 22.02.2017 passed by the learned Sessions Judge, Nalbari in Sessions
Case No. 14/2004 under Section 302/34 of the Indian Penal Code, 1860
[Corresponding to Section 103/3(5) of the BNS, 2023]. By the impugned judgment
and order dated 22.02.2017, the respondents herein who were the accused persons
have been acquitted.
2. The criminal law was set into motion by lodging of an Ejahar on 10.03.2002 at
about 2.30 pm by the appellant who was examined as PW1. It was alleged that in the
evening of 08.03.2002, when he was not present at home, three of the accused
persons had forcibly taken his youngest brother, Pankaj Das (deceased) from their
house along with some other youths and threatened him inside the Swahid Smriti
Sangha (hereinafter Sangha). On the happening of such incident, the informant had
taken the deceased to the house of his elder brother at Guwahati and left him there in
the morning hours of 09.03.2002. However, the accused persons, named in the Ejahar,
had again brought the deceased from Guwahati and assaulted on him at 11.00 pm
Page No.# 3/20
and made him consume Daimcron and left him at the verandah of the Sangha.
Thereafter, on hearing the scream of the deceased, the neighbouring people came and
found him in a critical stage and they had also seen the accused entering the house of
one Kandarpa Das. The deceased was rushed to the nearby Baruah Nursing Home,
Nalbari and was admitted. However, due to his critical condition, he was referred to
the hospital at Guwahati.
3. The Ejahar was accordingly registered as Ghagrapar PS Case No.18/2002 under
Sections 325/307/306/34 IPC [Corresponding to Sections 117/109/108/3(5) of the
BNS, 2023]. The investigations were accordingly made by the police whereupon, the
charge sheet was laid. The charges were accordingly framed on 27.02.2004 under
Section 302, read with Section 34 of the IPC against three accused persons
[Corresponding to Section 103/3(5) of the BNS, 2023]. The charges were explained
which were denied and accordingly the trial had begun. However, after certain
witnesses were examined, the learned Trial Court, vide order dated 17.03.2006 had
added 8 more nos. of accused. It may be mentioned that prior to the said order, 6
nos. of witnesses were examined and thereafter, a de novo trial was held after
arraying 8 more nos. of accused persons as mentioned above.
4. The informant was examined as PW1 and he had deposed that on 08.03.2002
at about 7.30 pm, the deceased was taken by the accused persons to the Sangha
where he was threatened. Sensing further trouble, the informant had taken the
deceased to Guwahati early in the morning of 09.03.2002. However, in the night of
09.03.2002 at about 11.30 pm, screams were heard whereupon, the informant had
recognised the voice of the deceased and ran to the place of occurrence and by using
his flashlight, saw the accused persons assaulting the deceased. The deceased had
asked them to wash his mouth and had also stated that something was poured in his
eyes. He had deposed of finding one handkerchief and one bottle at the scene.
Page No.# 4/20
In his cross-examination, however, he had deposed that he did not see any injury
on the body of the deceased. He had also deposed that he took the handkerchief and
the bottle with him. He had also admitted that Nalbari Sessions Case No. 144 of 2004
was filed against them for damages of the house and vehicles of the accused persons
by fire.
5. PW2 had deposed that on 08.03.2002 at about 7.30 am, she had seen the
deceased being threatened at the Sangha and at 11.00 pm, she had seen the accused
persons assaulting the deceased. She had also deposed that Daimcron was poured in
his eyes. In her cross-examination, she had, however deposed that the bottle and
handkerchief were taken away by a VDP member. She had also deposed of noticing
injuries on the body of the deceased and blood oozing out.
6. PW3 is a co-villager whose residence is about 40 feet away from the place of
occurrence. He had deposed that at about 11.30 pm, he heard shouting and had
accordingly rushed to the place of occurrence. He had also claimed that a dying
declaration was made by the deceased wherein, he had told that some liquid was
poured on his face and eyes. In his cross-examination, he had, however deposed that
he did not know who had taken the bottle and the handkerchief and also did not see
any substance on the face of the deceased. He also deposed of not finding any injury
marks on the body of the deceased.
7. PW4 is a co-villager who had deposed of finding the deceased in an injured
stage. He had also deposed of finding white substance on the eyes and face of the
deceased. However, on 8th and 9th March, he did not notice any external injuries on
the body of the deceased.
8. PW5 is a teacher who is a resident of the locality. He had deposed that on the
Page No.# 5/20
fateful day at about 11.00 pm, he had heard a scream. He had also deposed of
witnessing a bottle and handkerchief in the court and also admitted to be the scribe of
the FIR.
In his cross-examination, he had admitted that on 8 th and 9th March, he did not
see any injury on the body of the deceased. He had also admitted that he was one of
the convicted persons on the house burning case.
9. PW6 (wrongly described as PW5), is the Scientific Officer who had examined the
viscera of the deceased. In his report which was proved as Ext.-3, he had, however
opined that there was negative test for common poison. For ready reference, the
relevant part of the opinion is extracted hereinbelow:
"On 15-3-02 I worked as Scientific Officer, FSLGa (sic), Assam. On that day
Ireceived a parcel from Director, FSL which was sent by C.J.M, Guwahati in
connection with Dispur P.S U/D No.17/02. On opening the parcel I found 7 exts. in
two different containers and the exts. were marked by me as follows:
1. One plastic jar containing stomach with its content, portion of small intestine
with its contents, portion of liver with gall bladder, one kidney, portion of lungs
and portion of brain and the exts. were marked by me as Ext. No.Tox
134(a),tox 134 (b), Tox 134 (c), Tox 134(d),Tox 134 (e),Tox 134 (f)
respectively.
2. One glass bottle containing sample of preservative saturated solution of
common salt marked by me as Ext. No.134 (g).
I carefully examined the above exhibits and following is the result of my
examination.
Page No.# 6/20
Result of examination :- Ext Nos. Tox 134(a),Tox 134 (b), Tox 134 (c) Tox 134
(d), Tox 134 (e) and Tox 134 (f) gave negative test common poision. Ext, 3 is my
report, Ext.3(1) is my signature.
Ext.4 is the forwarding report of my examination report i.e. Ext.3 which was
sent by Director, FSL to CJM,Kamrup, Guwahati. Ext. 4 (1) is the signature of
Director, Rabin Dutta,FSL."
10. PW7 is also a resident of the locality who had claimed that the deceased had
told him that the accused persons had assaulted him. In his cross-examination,
however, he admitted that he was an accused in the house burning case which was
instituted from the side of the accused persons.
11. PW8 is the Doctor, who had conducted the post-mortem over the deceased. The
report which was proved as Ext.-5 had, however stated that the death was a natural
death. In a specific question put to him in the cross-examination, PW8 has reiterated
that the death was a natural one.
12. PW9 is the Investigating Officer, who had deposed that initially, the investigation
was done by another officer, namely, SK Talukdar, who had expired. He had deposed
about submission of the charge sheet. In his cross-examination, he had, however
admitted that seized articles were not available. The contradictions in the statements
of PW1, PW2 and PW4 were also proved by him by categorically stating that such
statements made in the Court were not made before him while he had examined the
said witnesses under Section 161 of the Cr.PC [Corresponding to Section 180 of the
BNSS, 2023].
Page No.# 7/20
13. PW10 is the ASI, who had done the inquest and the Inquest Report was proved
as Ext.3.
14. The incriminating materials were placed before the accused persons in their
examinations under Section 313 of the Cr.PC [Corresponding to Section 351 of the
BNSS, 2023] and the veracity and truthfulness of the same were denied.
15. Considering the above, the impugned judgment dated 22.02.2017 has been
passed whereby, the learned Trial Court had come to a conclusion that there were no
sufficient materials to come to a finding beyond all reasonable doubt regarding the
complicity of the accused persons and accordingly, they were acquitted. It is the said
judgment of acquittal which is the subject matter of challenge in the present appeal.
16. We have heard Shri M Sarania, learned counsel for the appellant. We have also
heard Ms. A Begum, learned Addl. PP, Assam as well as Shri A Mobaraque, learned
counsel for the respondent nos. 2, 3 and 4. Shri UJ Saikia, learned counsel represents
the respondent nos. 5 to 12.
17. Shri Sarania, the learned counsel for the appellant has submitted that the
impugned judgment has been passed in a mechanical manner without properly
appreciating the evidence on record. He has submitted that in the instant case, there
was dying declaration made before the PW 1, PW3 and PW7 and such dying
declaration has been discarded. By drawing the attention of this Court to Section 32(1)
of the Indian Evidence Act [corresponding to Section 27 of the BSA], the learned
counsel for the appellant has submitted that such dying declaration is admissible and
relevant piece of evidence and can be the sole basis of a conviction. He has submitted
that the seizure of the bottle and the handkerchief were not disputed and therefore,
the aspect of use of poison to cause the death of the deceased can be implied.
Page No.# 8/20
18. The learned counsel for the appellant has submitted that the narration of the
facts starting from the incident on the earlier date i.e. 08.03.2002 would clearly reveal
and lead to the conclusion of the complicity of the accused and in view of the
depositions of the 10 nos. of PWs which are unimpeached, the learned Trial Court
could not have come to a conclusion of acquittal. In support of his submissions, Shri
Sarania, learned counsel for the appellant has relied upon the following decisions:
i) Laxman Vs. State of Maharashtra, (2002) 6 SCC 710;
ii) Dhanna: Kanhiyalal Vs. State of MP, (1996) 10 DCC 79;
iii) Lakhan Vs. State of MP, (2010) 8 SCC 514;
iv) Poonam Bai Vs. State of Chhattisgarh, (2019) 6 SCC 145;
v)Harbans Singh Vs. State of Punjab, (1962) 0 AIR 439;
vi)Pearilal Rana @ Peara&Anr. Vs. The State, (1992) Crl. LJ 2644;
vii) State of Haryana Vs. Bhagirath, (1999) 5 SCC 96 and
viii) Manjunath &Ors. Vs. State of Karnataka ; (2023) 0 Supreme (SC)
1109.
19. Shri Sarania, learned counsel, accordingly submits that the instant appeal is
liable to be allowed and the finding of acquittal is liable to be reversed.
20. Supporting the case of the appellant, Ms. A Begum, learned APP has submitted
that the dying declarations are reliable piece of evidence as none of the witnesses,
who had claimed that dying declarations were made before them, are relatives of the
informant or the deceased. She has submitted that PW4, in clear terms, had deposed
of witnessing that certain liquid was being poured on the face of the deceased and
Page No.# 9/20
that frothy liquid was coming out from his mouth.
21. Similar depositions of dying declarations were also made by PW5 and PW7
which, according to her, are trustworthy and reliable. She has also referred to the
deposition of PW2 who had deposed that the face of the deceased was washed with
water.
22. She has also placed reliance on the judgment of Veerendra Vs. State of
Madhya Pradesh, reported in (2022) 8 SCC 668 in which, it has been laid down that
the evidence of the Doctor may not be solely relied upon. The said case law has been
cited inasmuch as, in the instant case, the opinion of the Doctor who was examined as
PW8 had given an opinion that the death was natural.
23. Opposing the appeal and supporting the impugned judgment, Shri Mobaraque,
learned Counsel for the respondent nos. 2 to 4 had submitted that there were no
materials at all to come to a finding of conviction. By drawing the attention of this
court to the Ejahar dated 10.03.2002 lodged by the elder brother, who is the PW1, has
submitted that a reading of the said Ejahar would reveal that the informant was not
even present at the place of occurrence and yet, as PW1, he had made certain claims.
24. The learned counsel for the petitioner has also drawn the attention of this Court
to the cross-examination of PW1, wherein, he had admitted that he did not personally
see pouring of any liquid on the face and eyes of the deceased. Regarding the seizure
of the bottle and the handkerchief, the learned counsel for respondent nos. 2 to 4 had
submitted that while PW1 had claimed that he took the bottle and handkerchief, PW2
had also made a different statement that it was a VDP member who had taken the
bottle and the handkerchief. He had also tried to bring in certain inconsistencies in the
deposition of the PW1 who had stated that he took the deceased to Baruah Nursing
Page No.# 10/20
Home whereas, in the Ejahar, he had stated that it was the villagers who had taken
the deceased to the hospital.
25. Shri Sarania, learned counsel has also drawn the attention of this Court to that
part of the deposition wherein PW1 had stated that the police had seized the bottle
and the handkerchief from his house. The deposition of PW3 has also been referred by
submitting that he was a witness to the house burning case and therefore, was an
interested witness. PW3 had also deposed of not seeing any substance on the face of
the deceased or any injury mark on his body. He had also deposed that the informant
was in the house of Pankaj Das. The deposition of PW4 has also been referred when,
he had stated that while the deceased was being taken to the nursing home, he was
not in a position to speak and therefore, he questions the claim of dying declaration
allegedly made before certain witnesses. Similarly, impeaching the deposition of PW5,
the learned counsel submitted that he had also admitted that he was convicted in the
house burning case which was filed against the present accused persons.
26. Immense emphasis has been placed on the depositions of the Scientific Officer
(PW5) and the Doctor (PW8) both of whose opinions were adverse to prosecution's
case. The learned counsel has submitted that there is a clear opinion by the Scientific
Officer that there was negative test for common poisoning and the Doctor-PW8 had
opined that it was a natural death. PW7 has also been impeached wherein, he had
admitted that he was an accused in the house burning case.
27. The aspect regarding who had reached the place of occurrence first has also
been highlighted by submitting that there were inconsistencies as more than three
witnesses had claimed of reaching the place of occurrence first. He has also referred
to the inquest report which was proved as Ext.-3 in which, it was clearly written that
no injuries were seen on the body of the deceased.
Page No.# 11/20
28. PW1, PW2, PW3 and PW4 had made the same claim by which, the veracity of
their testimonies becomes heavily doubtful. The learned counsel has highlighted the
aspect that except the official witnesses, all the other witnesses were accused or
convicts in the house burning case of the present accused. He has also submitted that
no other persons of the locality or vicinity was examined as witness.
29. In the instant case, the fact of death of the brother of the informant is not in
dispute. The fact that he was taken at first to the Baruah Hospital, Nalbari and
thereafter to Guwahati Hospital by the villagers is also not in dispute. The issue which
is to be looked into is as to whether the death was caused by the present respondents
who were accused in the criminal case.
30. The informant-PW1 had narrated about a previous incident on the earlier day
i.e. 08.03.2002 when the deceased was taken by the accused persons to the Sangha
at about 7.30 pm. There the deceased was threatened. Following this, the informant
had brought the deceased to Guwahati the next morning. However, on the same day
i.e. 09.03.2002 at about 11.30 pm, he claims to have heard certain scream and had
recognized the voice of the deceased and had claimed to have gone to the place of
occurrence. Such claim has also been made by the other witnesses and in this
connection, PW1, PW2, PW3 and PW4 have made a similar claim of reaching the place
of occurrence first. The PW2 had also deposed of witnessing the deceased being
assaulted.
31. PW3 had deposed that he even saw the accused persons assaulting the
deceased and Daimcron being poured in his eyes. She had also deposed of noticing
injuries on the body of the deceased and blood oozing out. The aspect of the assault
has to be tested from the point of view of any injuries being noticed on the body of
Page No.# 12/20
the deceased, either in the inquest or in the post-mortem examination.
32. The inquest was done by PW10, who did not see any injury on the body of the
deceased. The Doctor as PW8 had also opined that the death was a natural one and
no injuries were found on the body of the deceased. In the case of Nawabuddin v.
State of Uttarakhand, reported in (2022) 5 SCC 419, the Hon'ble Supreme Court has
laid down that the Doctor being an independent witness, there is no reason to
disbelieve the evidence given by such a witness.
33. In fact, in the instant case, a specific question was put to the PW8 in his cross-
examination wherein, he had reiterated that the death of the deceased was a natural
one. This brings us to the aspect as to whether the death was by poisoning. In this
regard, there are certain materials on record that certain liquid was poured on the
eyes and face of the deceased and a bottle and a handkerchief were found in the
place of occurrence.
34. PW1 had deposed that he took the handkerchief and the bottle with him while
on the other hand, PW2 had deposed that the bottle and the handkerchief were taken
away by the VDP member. Further, PW9, who is the IO, in his cross-examination, had
deposed that the seized articles were not available. It is not in dispute that neither the
bottle nor the handkerchief was taken in the proper custody. What is more important
is neither of the aforesaid articles were sent for any forensic examination regarding
the contents of the bottle. Under those circumstances, it would be necessary to
examine the deposition of the Scientific Officer who had examined the viscera. The
Scientific Officer, who was examined as PW5-PW6, had given a clear opinion that
there was negative test for common poison and the report was duly exhibited as Ext.-
3. The aforesaid opinion was not opposed by the prosecution in the cross-
examination.
Page No.# 13/20
35. We have also noticed that in the present case, except the official witness, all the
other witnesses are either accused or convicts in the house burning case which was
lodged almost at the same period. Therefore, there would be certain force in the
argument advanced by Shri Saikia, the learned counsel for respondent nos. 5 to 12
that the said witnesses are interested witnesses. We have also noticed that other than
those witnesses, there were no other persons of the locality or vicinity who were
produced as prosecution witnesses.
36. We have also noticed that there are inconsistencies in the versions of the
prosecution witnesses and the aspect of who had reached the place of occurrence first
would itself become doubtful as the same claim was made by PW1, PW2, PW3 and
PW4. As regards the case law cited on the evidentiary value of dying declaration, there
is no dispute to the propositions laid down. In fact, Section 32(1) of the Indian
Evidence Act clearly lays down that such a statement would be relevant. For ready
reference, Section 32(1) of the Indian Evidence Act [Corresponding to Section 26(a) of
the BSA, 2023] is extracted herein below:
"32. Cases in which statement of relevant fact by person who is dead or cannot be
found, etc., is relevant.
...
:(1)When it relates to cause of death. - When the statement is made by a person
as to the cause of his death, or as to any of the circumstances of the transaction
which resulted in his death, in cases in which the cause of that person's death
comes into question. Such statements are relevant whether the person who made
them was or was not, at the time when they were made, under expectation of
death, and whatever may be the nature of the proceeding in which the cause of
his death comes into question."
Page No.# 14/20
37. The law is well settled that such dying declaration need not be made before a
Magistrate or the police and need not even be in writing but has to be in such a
manner that it inspires confidence. In the instant case, dying declaration was alleged
to have been made before PW1, PW3, PW4. However, as we have noted above,
though such dying declaration was regarding certain assault being made by the
accused persons, no injuries of any kind were noticed on the body of the deceased,
either in the post-mortem or in the inquest report. The aspect of death by poisoning
has also been ruled out by the evidence of the Scientific Officer, which has been
elaborately discussed above.
38. The cardinal principle of criminal jurisprudence is that the proof of the
accusation has to be beyond all reasonable doubt. It has been explained in a number
of decisions by the Hon'ble Supreme Court that the doubt has to be reasonable and
not fanciful doubts or lingering suspicions. However, in the instance case, we have
seen that there are not only gross inconsistencies in the evidence of the prosecution
but the principal evidence laid by the Doctor-PW7 and the Scientific Officer as PW5
(PW6) would raise serious doubts on the veracity of the prosecution case. As
discussed above, PW9, who was the Investigating Officer, had also proved that the
versions of PW1, PW2 and PW4 were contradictory to what they had stated while they
were examined under Section 161 of the Cr.PC [Corresponding to Section 180 of the
BNSS, 2023] and therefore, such evidence would not be safe to be relied upon.
39. It has been reiterated in a catena of decisions that mere suspicion cannot take
the place of legal proof in a criminal case. The Hon'ble Supreme Court in the case of
Sujit Biswas Vs. State of Assam reported in (2013) 12 SCC 406 has laid down as
follows:
Page No.# 15/20
"13. Suspicion, however grave it may be, cannot take the place of proof, and
there is a large difference between something that `may be' proved, and
something that `will be proved'. In a criminal trial, suspicion no matter how strong,
cannot and must not be permitted to take place of proof. This is for the reason
that the mental distance between `may be' and `must be' is quite large, and
divides vague conjectures from sure conclusions. In a criminal case, the court has
a duty to ensure that mere conjectures or suspicion do not take the place of legal
proof. The large distance between `may be' true and `must be' true, must be
covered by way of clear, cogent and unimpeachable evidence produced by the
prosecution, before an accused is condemned as a convict, and the basic and
golden rule must be applied. In such cases, while keeping in mind the distance
between `may be' true and `must be' true, the court must maintain the vital
distance between mere conjectures and sure conclusions to be arrived at, on the
touchstone of dispassionate judicial scrutiny, based upon a complete and
comprehensive appreciation of all features of the case, as well as the quality and
credibility of the evidence brought on record. The court must ensure, that
miscarriage of justice is avoided, and if the facts and circumstances of a case so
demand, then the benefit of doubt must be given to the accused, keeping in mind
that a reasonable doubt is not an imaginary, trivial or a merely probable doubt, but
a fair doubt that is based upon reason and common sense."
40. There is another very important aspect in this appeal which is preferred against
an order of acquittal. An appeal against an order of acquittal has to be tested on two
grounds. Firstly, there is a presumption of innocence and the same presumption gets
fortified by an order of the Trial Court which had rendered a judgment after a full-
fledged trial and in the instance case, there were 10 nos. of prosecution witnesses.
41. The principles to be followed while hearing an appeal against an order of
acquittal have been well settled by the Hon'ble Supreme Court in a catena of
judgments. For ready reference, one may refer to the judgment of Chandrappa &
Page No.# 16/20
Ors. Vs. State of Karnataka, reported in (2007) 4 SCC 415 wherein, the following
observations were made:
"Recently, in Kallu v. State of M.P., (2006) 10 SCC 313 :
AIR 2006 SC 831, this Court stated; "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". (emphasis supplied) From the above decisions, in our considered view,
the following general principles regarding powers of appellate Court while
dealing with an appeal against an order of acquittal emerge;
(1) An appellate Court has full power to review, reappreciate 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
Page No.# 17/20
phraseologies are more in the nature of 'flourishes of language' to
emphasize 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 available to him under the fundamental
principle of criminal jurisprudence that every person shall be presumed
to be innocent unless he is proved guilty by a competent court of law.
Secondly, the accused having secured his acquittal, the presumption of
his innocence is further reinforced, reaffirmed and strengthened by the
trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding of
acquittal recorded by the trial court."
42. The aforesaid judgment has been endorsed in the subsequent decision of State
of UP Vs. Awdhesh, reported in (2008) 16 SCC 238. In this decision, the entire
history regarding appeal against acquittal has been discussed, including certain
decisions of the Privy Council. Few of the relevant observations are extracted
hereinbelow:
"14. The first important decision was rendered by the Judicial Committee of the
Privy Council in Sheo Swarup v. R. Emperor (1934) 61 IA 398). In Sheo Swarup
the accused were acquitted by the trial court and the local Government directed
the Public Prosecutor to present an appeal to the High Court from an order of
acquittal under Section 417 of the old Code (similar to Section 378 of the
Code). At the time of hearing of appeal before the High Court, it was contended
Page No.# 18/20
on behalf of the accused that in an appeal from an order of acquittal, it was not
open to the appellate court to interfere with the findings of fact recorded by the
trial Judge unless such findings could not have been reached by him had there
not been some perversity or incompetence on his part. The High Court,
however, declined to accept the said view. It held that no condition was
imposed on the High Court in such appeal. It accordingly reviewed all the
evidence in the case and having formed an opinion of its weight and reliability
different from that of the trial Judge, recorded an order of conviction. A petition
was presented to His Majesty in Council for leave to appeal on the ground that
conflicting views had been expressed by the High Courts in different parts of
India upon the question whether in an appeal from an order of acquittal, an
appellate court had the power to interfere with the findings of fact recorded by
the trial Judge. Their Lordships thought it fit to clarify the legal position and
accordingly upon the "humble advice of their Lordships", leave was granted by
His Majesty. The case was, thereafter, argued. The Committee considered the
scheme and interpreting Section 417 of the Code (old Code) observed that
there was no indication in the Code of any limitation or restriction on the High
Court in exercise of powers as an Appellate Tribunal. The Code also made no
distinction as regards powers of the High Court in dealing with an appeal
against acquittal and an appeal against conviction. Though several authorities
were cited revealing different views by the High Courts dealing with an appeal
from an order of acquittal, the Committee did not think it proper to discuss all
the cases.
15. Lord Russel summed up the legal position thus:
"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
Page No.# 19/20
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 or misconducted itself
as to produce a glaring miscarriage of justice, or has been tricked by the
defence so as to produce a similar result."
16. His Lordship, then proceeded to observe: (IA p.404)
"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."
17. The Committee, however, cautioned appellate courts and stated: (IA p.404)
"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 recognised
in the administration of justice."
43. Considering the above and in the conspectus of the discussions made above, we
are of the opinion that the judgment and order dated 22.02.2017 passed by the
learned Sessions Judge, Nalbari in Sessions Case No. 14/2004 under Section 302/34 of
Page No.# 20/20
the IPC [Corresponding to Section 103/3(5) of the BNS, 2023] has been done in
accordance with law and would not require any interference. We are of the opinion
that the appellant has not been able to make out a case which warrants any merit and
therefore, the appeal is dismissed.
44. Sent back to the TCRs.
JUDGE JUDGE
Comparing Assistant
