Holding

A High Court may review and overturn an acquittal if the trial court's decision is not grounded in admissible legal evidence, and the Supreme Court upheld the conviction.

Summary

Allarkha K. Mansuri was charged with murder under Sections 302, 504 and 114 IPC for allegedly stabbing Abdul Karim Ali Mohamed with a dharia. The trial court acquitted him, relying on alleged discrepancies in the FIR, the time of death, weapon identification and the alleged lateness of statements under Section 161 CrPC. The Gujarat High Court reviewed the evidence, gave weight to the testimony of three eye‑witnesses, medical reports and the recovered weapon bearing the victim's blood, and convicted the appellant. The appellant appealed to the Supreme Court, contending that under Section 378 CrPC the High Court could not disturb the trial court's findings of fact and that the benefit of doubt should favor the accused. The Supreme Court held that while the High Court must exercise caution, it has full power to review and overturn an acquittal when the lower court's decision is based on conjecture rather than legal evidence. Consequently, the Court dismissed the appeal, upholding the conviction and sentence.

Issues considered

Whether a High Court can disturb the findings of fact of a trial court in an appeal against an order of acquittal under Section 378 of the CrPC.
Whether the principle of "benefit of doubt" in favour of the accused applies when two plausible interpretations of the evidence exist.
Whether the trial court's reliance on alleged procedural irregularities (FIR vs diary, time of death, weapon identification, late statements) justifies an acquittal.
Scope of appellate review of evidence in acquittal appeals.

Legislation cited

Code of Criminal Procedure, 1973s. 154, s. 161, s. 162, s. 378
Indian Evidence Act, 1872
Indian Penal Code, 1860s. 114, s. 302, s. 504

Subjects

acquittal appealappellate reviewbenefit of doubteye‑witness testimonypresumption of innocenceSection 378 CrPCmurder convictionevidentiary standards

Judgment

ALLARAKHA K. MANSUR! A
v.
ST ATE OF GUJARAT

FEBRUARY 14, 2002

[R.P. SETHI AND K.G. BALAKRISHNAN, JJ.] B

Evidence Act 1872:

Testimony of eye-witnesses-Reliance of-When the evidence of eye-
witnesses corroborated by medical evidence and support the case ofprosecution C
in proving the guilt of the accused, it can be relied upon.

Code of Criminal Procedure, 1973:

Section 161-Recording of statement-Manipulation of-When FIR is
recorded promptly and Magistrate informed-Late recording of statements of D
witnesses-Held, need not necessary lead to manipulation.

Criminal Trial:

Acquittal by trial Court-Not based upon facts or legal evidence tendered
but as a result u( conjectures and hypothesis-Hence High Court was justified E
in re-examining the whole evidence and convicting the accused.

Review Jurisdiction :

Power of High Court-Jn appeal against the order of acquittal, High
Court has full powers to review the evidence in the matter and there is no F
jurisdictional limitation on the appellate Court.

Appellant-accused along with another person went to the 'Tea Stall'
of the deceased armed with a "Dharia" and inflicted serious injuries on the
head and other parts of the deceased, who was later shifted to Hospital. In G
the meanwhile on receipt of intimation from. the Hospital about the injuries
" • sustained by the deceased, Police recorded the same in tire PQlice Station Diary.
Thereafter statement of complainant was recorded and FIR Wt:s ~istered.
The deceased succumbed to the injuries in the Hospital. On completf«l of
the investigation, charge sheet was filed against the accused persons.
H
1011
1012 SUPREME COURT REPORTS [2002] I S.C.R.

A Prosecution examined IO witnesses of which 4 were eye witnesses. One of the
eye-witnesses, however, did not support the case of prosecution and was
declared hostile. Trial Court discarded the testimony of the eye-witnesses and -<. -
acquitted the accused. On appeal, High Court relied upon the testimony of
eye-witnesses and reversed the Judgment of Trial Court and convicted the
B accused under Section 302 l.P.C. Hence this appeal by the accused.

It was contended for the appellant that under Section 378 Cr. P.C., the
High Court could not disturb the finding of fact of the trial Court; and that
where two views are possible, the one favourable to the accused resulting in
his acquittal should be accepted.

c Dismissing the appeal, the Court

HELD: I.I. Settled position of law regarding the powers to be exercised
by the High Court in an appeal against the order of acquittal is that though
the High Court has full powers to review the evidence upon which an order
. of acquittal is based, it will not interfere with an order of acquittal because
D with the passing of an order of acquittal the presumption of innocence in
favour of the accused is reinforced. The High Court should be slow in
disturbing the finding of fact arrived at by the trial Court. The golden thread
which runs through the web of administration of justice in criminal case is
that if two views are possible on the evidence adduced in the case, one pointing
E to the guilt of the accused and the other to his innocence, the "iew which is
favourable to the accused should be accepted. [1017-B-C-Dl

Shivaii Sahehrao Bohade and .4nr. v. State of Maharashtra, AIR (1973)
SC 2622, relied on.

1.2. Paramount consideration of th~ Court should be to avoid
F miscarriage of justice. A miscarriage of justice which may arise from the
acquittal of guilty is no less than from the conviction of an innocent. In a case
where the trial Court has taken a view based upon conjectures and hypothesis
and not on the legal evidence, a duty is cast upon the High Court to re-
appreciate the evidence in acquittal appeal for the purposes of ascertaining
G as to whether the accused has committed any offence or not. Acquittal by
the trial Court cannot be made a basis to urge that the High Court under all
circumstances should not disturb such a finding. [1018-G-H; 1019-Al

2.1. In the instant case, the trial Court relied upon certain aspects of
the case for passing an order of acquittal. None of these circumstances or
H aspects can !>c .1eld to be based upon legal evidence. In the absence of any
ALLARAKHA K. MANS URI v. STATE OF GUJARAT 1013
discrepancy as to certain entries in the FIR and in Police Station Diary the A
accused-appellant could not be acquitted. These two entries did not make the
-~ .... so-called two versions possible. The only inference of the two entries is that
occurrence had taken place in which deceased had died and the appellant
inflicted injuries to the deceased. [1019-B-C]

2.2. Trial Court had no reason to hold that the identity of the weapon B
of offence was doubtful or one of the prosecution witnesses was not the same
person whose statement was recorded under Section 161 of the Code of
Criminal Procedure. The defects in the investigation holding it to be shaky
and creating doubts, also appears to be the result of the imaginative thought
of the trial Court. Otherwise also, defective investigation by itself cannot be
made a ground for acquitting the accused. [1019-E-F)
c
2.3. Trial Court was also not justified in holding that the statement of
the witnesses under Section 161 Cr.P.C. were recorded by the police belatedly
and that there was chance of manipulation. FIR is proved to have been
recorded within 15 minutes of the occurrence and its copy furnished to the
D
,. Magistrate within 24 hours, which rules out tlte possibility of manipulation.
[1019-F-G)

2.4. Contradictions in the evidence of the witnesses, referred to in the
judgment of the trial Court, are of very minor nature which instead of
discarding their testimony strengthens the case of the prosecution since the
E
contradictions would show that the witnesses were truthful as they did not
make parrot like statements. [1019-G-H)

2.5. A critical examination of the judgment of the trial Court shows that
the view taken by it was uncalled for, not based upon the facts of the case or
the legal evidence tendered in the case and was the result of conjectures, F
• imagination and hypothesis. Thus, the High Court rightly held that the
conclusions arrived at by the trial Court were factually and legally incorrect.

-· CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
(1020-A-B]

1285 of 1998. G
From the Judgment and Order dated 18/19.8.1998 of the Gujarat High
~ l(
Court in Cr!. A. No. 18 of 199 l.

.Uday U. Lalit and H.A. Raichura for the Appellant.

S.K. Dholakia and Ms. Hemantika Wahi for the Respondent. H
1014 SUPREME COURT REPORTS [2002) I S.C.R.

A The Judgment of the Court was delivered by

SETHI, J. The appellant was charged for the offences punishable under
Sections 302 and 504 read with Section 114 of the Indian Penal Code in
Sessions Case No.57 of 1989 and after trial was acquitted by the learned
Sessions Judge on 11.9.1990. The appeal filed against the judgment of acquittal
B was allowed by the High Court vide judgment impugned in this appeal holding
the appellant guilty for the commission of offence punishable under Section
302 of the Indian Penal Code and sentencing him to undergo rigorous
imprisonment for life and to pay a fine of Rs. 5,000. In default of payment
of fine, the appellant has to undergo further rigorous imprisonment for three
C years.

The facts of the case are that on 27th March, 1989 at about 7.30 p.m.,
the appellant along with Ramji Khamisa Mansuri went to the Tea Stall of the
deceased armed with Dharia. He inflicted four blows to the deceased with
that Dharia, as a result of which deceased Abdul Karim Ali Mohamed sustained
D serious injuries on head and other portions of his body. He was shifted to the
Hospital but he succumbed to the injuries. At about 7.45 p.m. a message was
received at Police Station Bhachau from the Medical Hospital stating that
Abdul Karim Ali Mohamed who has been brought to the Hospital had sustained
serious injuries and was being shifted to Bhuj Civil Hospital. The intimation
E was recorded as Crime Entry No. 20 of 1989 in the Police Station diary.
Thereafter the statement of Ali Mohamed was recorded in the police station
and the FIR registered which was marked as Exhibit 30. On completion of
the inve'itigation, charge sheet was filed against the accused persons. The
prosecution examined 10 witnesses. Ali Mohamed Husein (PW4), complainant,
Rajesh Velji (PW5), Shashikant (PW6) and MamuJo@ Abdulla (PW9)were
F cited eye-witnesses. As Rajesh Velji (PW5J did not fully support the case of
the prosecution, he was declared hostile. The trial court discarded the testimony
of the eye-witnesses and acquitted the accused. It appears that the trial court
mainly relied upon the following aspects for acquitting the accused persons:

"(i) That Exh. 36, entry No. 20/1989 in the police station diary which
G came to be recorded on the information given by the medical
officer of Bhachau Hospital is the first information report under
Section 154 of the Code and not the complaint-FIR lodged by the
complainant Ali Mohamed at exh.30.
(ii) That the time of death of the deceased Abdul is not established,
H hence, prosecution story is doubtful.
ALLARAKHA K. MANS URI v. STATE OF GUJARAT [SETHI. J.) 1015
(iii) Identity of the Muddamal articles is doubtful as the witnesses A
have not been shown such items and have not identified;
'"
(1v) Identity of one more witness Manudo is also doubtful and in his
.lJ place somebody is placed as Manudo in view of the evidence led
by the accused persons.

(v} The investigation carried out by the investigating officer B
Mr.Makwana is not truthful but is shaky and, therefore, it creates
cloud of doubt.

(vi) Statement of some of the witnesses by the police under section
162 are recorded late and, therefore, there was chance for
manipulation. c
(vii) Non-cognizable complaint lodged by A-1 and produced at exh.33
is not admissible in evidence as it was given to the police officer-
investigating officer during the course of investigation;
=:::-;p
(viii)the contradictions in the evidence of witnesses are also creating
D
doubt on the veracity of the prosecution case.
~

... In appeal, the High Court relied upon the testimony of the eye-witnesses
and convicted the appellant vide impugned judgment. The High Court held:

"We have no hesitation in finding that the contradictions and the
deficiencie~ and discrepanci.:s highlighted by the trial court in rejecting E
the evidence of 3 eye witnesses supported by medical evidence and
also F.S.L. report are in our opinion quite at micro level and some of
them are factually not correctly stated and even if they are factually
~
correct, would not in reality influence or affect the evidence of 3 eye
,. witnesses and other circumstances corroborating the evidence of eye
F
witnesses. The trial court has committ.:!d thus serious error of law in
placing unnecessary reliance on such insignificant, unsustainable and
micro level discrepancies and contradictions which as such do not
affect the main core of the prosecution story and has failed to rely on
·the evidence of 3 eye witnesses whose evidence has remained
unimpeachable on the main story of the prosecution that it was none G
else but only A-1 Allarakha who did commit murder of deceased
Abdul Karim by giving him successive blows with dharia in a public
" place near the tea stall of the deceased and that too for a motive for
pecuniary gain.

The trial court has committed also serious error in giving benefit of H
1016 SUPREME COCRT REPORTS [2002] I S. C.R.

A doubt to the appellant A-I Allarakha. We may mention at this s~ge
that benefit of doubt, if any, arising from the record of the case on
the main story of the prosecution which is reasonable and just in the
circumstances could be given to the accused which is one of the
fundamental principle of Criminal Jurisprudence. However, it must
be strictly noted that the benefit of doubt should be of a reasonable
B average person and not of a person who is afraid of legal consequences.

Before we conclude, we should also like to highlight one more
important aspect which also significantly corroborates and supports
the prosecution case and the evidence of 3 eye witnesses and it is the
recovery of Muddamal article No. 9 dharia from A-1. We have found
c while examining the impugned judgment that the trial court has made
certain observations and has raised certain conjuctures that the accused
in such a situation would not always carry incriminating dharia all
the time during the period of abscondance after the incident (it may
be noted that the accused persons were found from village Madi and
D came to be arrested and at the time when the crime weapon article
No. 9-dharia was recovered in presence ofpanches and the Muddamal
dharia -article No. 9 had human blood stains on the blade portion of
it). It is also supported by the report of the serologist. It is clearly
found by the expert in the serological examination that it did contain
the blood stains of human blood group "B" which was of the deceased
E Abdul Karim as the clothes found from the dead body contained the
same blood group. The panchnama prepared in this behalf is also
supporting the case of the prosecution."

On the basis of the evidence, the High Court found that the appellant
was the prime accused being responsible for the murder of Abdul Karil Ali
F Mohamed. He gave four successive dharia blows on the vital organs of the
•
deceased which resulted in his death. The weapon of offence, Article No. 9
recovered from the appellant was stained with blood Group "B" which was
the blood group of the deceased. The statement of three eye-witnesses, namely,
Ali Mohamed Husein (PW4), Shashikant (PW6) and Mamdu @ Abdulla
G (PW9) proved the version of the prosecution leading to the unerring conclusion
that it was the appellant alone who had committed the murder of the deceased
by inflicting four successive blows with the weapon of offence- Exh.9. The •
evidence of the eye-witnesses stood corroborated by medical evidence of Dr.
C.M. Acharya (PW3) and Dr. N.R. Jadeja (PW2).

H Learned counsel for the appellant assailed the impugned judgment on
ALLARAKHAK. MANSURI v. STATEOFGUJARAT[SETHI, J.] 1017
the ground that under Section 378 of the Code of Criminal Procedure the A
High Court could not disturb the finding of fact of the trial court even if it
was of the opinion that the view taken by the trial court was not proper. It
is submitted that where two views are possible, the one favourable to the
.accused resulting in his acquittal should be accepted and not interfered with
lightly.
B
The settled position of law regarding the powers to be exercised by the
High Court in an appeal against the order of acquittal is that though the High
Court has full powers to review the evidence upon which an order of acquittal
is based, it will not interfere with an order of acquittal because with the
passing of an order of acquittal the presumption of innocence in favour of the C
accused is reinforced. The High Court should be slow in disturbing the finding
of the fact arrived at by the trial court. The golden thread which runs through
the web of administration of justice in criminal case is that if two views are
possible on the evidence adduced in the case, one pointing to the guilt of the
accused and the other to his innocence, the view which is favourable to the
accused should be adopted. In our country it is not a jurisdictional limitation D
on the appeal court but a judge made guideline of circumspection. In Shivaji
Sahebrao Bobade and Anr. v. State of Maharashtra, (AIR) 1973 SC 2622
• this Court held:
"This Court had ever since its inception considered the correct principle
to be applied by the Court in an appeal against an order of acquittal E
"and held that the High Court has full powers 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. The Privy Council in Shea Swarup v. King Emperor 61
Ind App. 398 ~AIR (1934) P.C. 227 (2), negatived the legal basis for
the limitation which the several decisions of the High Courts had F
placed on the right of the State to appeal under Section 417 of the
Code. Lord Russel delivering the judgment of the Board pointed out
that there was "no indication in the Code of any limitation or restriction
on the High Court in the exercise of its powers as an appellate
tribunal," that no distinction was drawn "between an appeal from an G
irder of acquittal and an appeal from a conviction," and that "no
limitation should be placed upon that power unless it be found
expressly stated in the Code." He further pointed out at p. 404 that,
"the High Court should and will always give proper weight and
consideration to such matters as (I) the views of the trial Judge as to
the credibility of the witnesses, (2) the presumption of innocence in H
1018 SUPREME COURT REPORTS [2002) I S.C.R.

A 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." In Sanwat Singh v. State of
Rajasthan, [ 1961] 3 SCR 12 =AIR ( 1961) SC 7 I 5 after an exhaustive
B review of cases decided by the Privy Council as well as by this Court,
this Court considered the principles laid down in Sheo Swamp's case
and held that they afforded a correct guide for the appellate court's
approach to a case against an order of acquittai. It was again pointed
out by Das Gupta, J. delivering the judgment of five judges in Harbans
c Singh v. State of Punjab, [ 1962] Suppl. I SCR I 04 ~AIR (1962) SC
439.

"In many cases, especially the earlier ones the Court has in laying

D
down such principles emphasised the necessity of interference with
an order of acquittal being based only on 'compelling and substantial
reasons' and has expressed the view that unless such reasons are
-
present an Appeal Court should not interfere with an order of acquittal
(vide Sura) Pal Singh v. The State. [ 1952] SCR 193 =AIR (1952) SC
52, Ajmer Singh v. State of Punjab, (1953] SCR 418 "'AIR (1953)
SC 76, Puran v. State of Punjab, AIR ( 1953) SC 459. The use of the
E words 'compelling reasons' embarrassed some of the High Courts in
exercising their jurisdiction in appeals against acquittals and difficulties
occasionally arose as to what thi5 Court had meant by the words
·compelling reasons'. In later years the Court has often avoided
emphasis on 'compelling reasons' but nonetheless adhered to the
view expressed earlier that before interfering in appeal with an order
F of acquittal a court must examine not only questions of law and fact
in all their aspects but must also closely and carefully examine the
reasons which impelled the lower courts to acquit the accused and
should interfere only if satisfied after such examination that the
conclusion reaehed by the lower court that the guilt of the person has
G not been proved is unreasonable."

The paramount consideration of the court should be to avoid miscarriage
of justice. A miscarriage of justice which may arise from the acquittal of
guilty is no less than from the conviction of an innocent. In a case where the
trial court has taken a view based upon conjectures and hypothesis and not
H on the legal evidence, a duty is cast upon the High Court to re-appreciate the
ALLARAKHA K. MANSUR! v. STA TE OF GUJARAT [SETHI, J.) 1019
evidence in acquittal appeal for the purposes of ascertaining as to whether the A
accused has committed any offence or not. Probable view taken by the trial
"" . court which may not be disturbed in the appeal is such a view which is based
upon legal and admissible evidence. Only because the accused has been
acquitted by the trial court, cannot be made a basis to urge that the High
Court under all circumstances should not disturb such a finding.
B
In the instant case the trial court relied upon certain aspects of the case
as noticed earlier for passing an order of acquittal. Examined critically, none
of the aforesaid circumstances or aspects can be held to be based upon legal
... evidence. Whether Exhibit 36 or Entry No.20/89 is the First Information

"'
Report would not change the nature of the allegation made against the accused
as no discrepancy is pointed out in the aforesaid entries. Entry No.20 is
c
recorded on the basis of report received from the Hospital and Exhibit 36 is
on the basis of statement of the complainant Ali Mohamed. In the absence
of any discrepancy in the aforesaid two documents, the accused-appellant
could not be acquitted. The two entries did not make the so-called two versions
possible. The only inference of the two entries is that occurrence had taken D
.... place in which Abdul Karim Ali Mohamed had died and the appellant had
. inflicted injuries. Similarly the time of death in no way proves the appellant
to be innocent. In presence of the ocular testimony of eye-witnesses that
occurrence had taken place on 27th March, 1989 at about 7.30 p.m. in which
the injuries found on the person of the deceased were caused by the appellant,
E
the time of death of the deceased ascertained on the basis of opinion of the
Doctor was in no way helpful to the appellant. We also find that the trial
court had no reason to hold that the identity of the weapon of offence was
doubtful or Mamudu @ Abdulla (PW9) was not the prosecution witness
whose statement had been recorded under Section 161 of the Code of Criminal
Procedure. The defects in the investigation holding it to be shaky and creating F
'
doubts .ilso appears to be the result of the imaginative thought of the trial
court. Otherwise also defective investigation by itself cannot be made a ground
for acquitting the accused. The trial court was also not justified in holding
that the statement of the witnesses under Section 161 Cr.P.C. were recorded
late by the police and that there was any chance of manipulation. The FIR
G
is proved to have been recorded within 15 minutes of the occurrence and its
copy furnished to the Magistrate within 24 hours, which rules out the possibility
~
of manipulatmn. The contradictions in the evidence of the witnesses, referred
to in the judgment of the trial court, are of very minor nature which instead
of discardmg their testimony strengthens the case of the prosecution of the
witnesses being truthful as they were not shown to have made parrot like H
1020 SUPREME COURT REPORTS (2002] I S.C.R.

A statements. A critical examination of the judgment of the trial court shows
that the view taken by it was uncalled for, ;10t based upon the facts of the
case or the legal evidence tendered in the case and was the result of conjectures,
imagination and hypothesis. The High Court rightly held that the conclusions
arrived at by the trial court were factually and legally incorrect. The High
B Court was, therefore, justified in re-examining the whole evidence produced
in the case and to hold that the accused-appellant was proved to have
committed the offence of murder beyond all reasonable doubt. He has rightly
been convicted and sentenced for the commission of the aforesaid offence.
We do not find any illegality or error of jurisdiction in the judgment of the
High Court requiring our interference.
c There being no merit in this appeal, the same is dismissed.

S.K.S. Appeal dismissed.

..