Holding

The High Court was justified in setting aside the trial court’s acquittal because the complainant’s eye‑witness testimony was duly corroborated by medical evidence and the seized weapon and blood‑stained clothes, and the High Court possesses full authority to re‑appreciate evidence on an appeal against acquittal to avoid miscarriage of justice.

Summary

Harisingh M. Vasava was charged with murder under IPC 302 for killing a woman who lived with him as his wife. The crime occurred in the house of the complainant, who was a tenant of the deceased and witnessed the attack. The trial court acquitted the accused, holding that the prosecution failed to link him to the crime, that the complainant was a biased witness, and that other eye‑witnesses were hostile. On appeal, the Gujarat High Court set aside the acquittal, finding that the complainant’s testimony was corroborated by medical evidence, the seized blood‑stained clothes and dagger, and the prompt filing of the FIR. The Supreme Court upheld the High Court’s decision, stating that a High Court has full power to re‑appreciate evidence on an appeal against acquittal to prevent miscarriage of justice and that the complainant’s testimony was reliable despite alleged bias. Consequently, the appellant’s challenge to the conviction was dismissed.

Issues considered

The scope of the High Court’s power to interfere with a trial court’s order of acquittal under CrPC Section 378.
Whether an eye‑witness who did not intervene at the scene can be deemed reliable.
Whether the complainant’s alleged intimate relationship with the deceased renders him an interested witness.
Whether the seizure of blood‑stained clothes, the weapon, and medical evidence sufficiently corroborate the eye‑witness testimony.
The relevance of the non‑mention of other persons present at the scene in the FIR.

Legislation cited

Subjects

murdereye‑witness testimonyhostile witnessacquittal appealHigh Court powerscorroborationevidenceIPC 302CrPC 378Evidence Act

Judgment

HARISINGH M. VASAVA A
v.
STATE OF GUJARAT

FEBRUARY 27, 2002

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

Indian Penal Code, 1860: Section 302.

Murder-Eye witnesses-Two witnesses turned hostile-Testimony of
complainant-witness-Corroboration of-Evidence ofcomplainant-witness held C
reliable-Conviction of accused held valid-Reversal of acquittal order by
High Court held justified-Evidence Act, 1872.

Code of Criminal Procedure, .1973: Section 378.

Accused-Acquittal-State appeal against-Power of High Court in D
appeal-Extent of

The appellant was prosecuted under Section 302 of the Indian Penal
Code, 1860. The prosecution case was that he committed murder of a woman
who was living with him as his wife. The murder was committed in the house E
of the complainant (PW2) who was tenant of the deceased. At the time of
murder, deceased was in the company of the complainant. Besides
complainant two girls of the locality were also present at that time. The
appellant inflicted as many as 35 injuries on the deceased. Immediately after
occurrence complainant lodged the complaint before the police. The accused
himself appeared before the police. His blood stained clothes and dagger were F
seized. During trial only the complainant supported the case of prosecution
while the other two girls were declared hostile.

The trial court acquitted the accused. It held that (i) the prosecution
had failed to connect the accused with commission of the crime; (ii) the seizure
of clothes and weapon of offence had not been proved (iii) complainant was G
an interested witness because he was having illicit relationship with the
deceased; and (iv) many other persons had also collected at the scene of crime
but name of even one such witness was not mentioned in the FIR.

On appeal preferred by State the High Court relied upon the testimony H
57
58 SUPREME COURT REPORTS [2002) 2 S.C.R.

A of the complainant and held that the prosecution had successfully established
the culpability of the accused in committing the murder at the house of the
complainant Hence this appeal.

Dismissing the appeal preferred by accused, the Court

B HELD: 1.1. The High Court was justified in interfering in this case by
setting aside the judgment of the trial court. It has assigned valid reasons for
believing the testimony of complainant. [65-B]

2. There is sufficient corroboration of the testimony of complainant as
is evident from the medical evidence showing the infliction of a number of
C injuries with the weapon of offence stated to have been used by the appellant.
His appearance before the police with the dagger and the blood stained clothes
fully corroborates the prosecution evidence. No doubt is left when it is proved
that blood stained clothes and the weapon of offence had the same group of
blood which was that of the deceased. [63-G-H]

D 3. Merely because complainant did not intervene at the time when the
appellant was inflicting knife blows on the person of the deceased cannot be
a ground to discard his testimony. Only because the eye-witness fails to
intervene to save the deceased, cannot be made a ground to reject his
testimony particularly when he is not asked as to what restrained or refrained
E him from intervening to save the deceased. (64-B]

4. FIR has been lodged promptly with sufficient details. The non-
mentioning of the names of the people, stated to have gathered on the spot,
in the FIR does not, in any way, help the defence in this case. [64-A-D]

5. The intimate relations between the deceased and the complainant on
F account of their relationship of landlady and tenant cannot be stretched to
the extent of holding that complainant was an interested witness in the case.
The manner and the place where the occurrence had taken place
unambiguously suggests that complainant is the natural witness of the
occurrence. Merely because two other eye witnesses were declared hostile
G would not render the evidence of complainant inadmissible in view of the fact
that he stands corroborated in material particulars by other evidence.
[64-E-F]

6. 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
H High Court has full powers to review the evidence upon which an order of
HARISINGH M. VASA VA v. STATEOFGUJARAT[SETHl,J.] 59

acquittal is based, it will not interfere with an order of acquittal because with A
the passing of an order of acquittal the presumption of innocence in favour
of the accused is reinforced. 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 ofan innocent.
In a case where the trial court has taken a view based upon conjectures and· B
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 as to whether the 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 C
basis to urge that the High Court under all circumstances should not disturb
such a finding. Consequently, there is no illegality or error of jurisdiction
requiring interference by this Court. (64-G-H; 65-A-B)

CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No.
1076 of 1999. ' D
From the Judgment and Order dated 22.7.99 of the Gujarat High
Court in Crl. A. No. 560 of 1985.

- Y.P. Adhyaru, Nandini Gore and Rajesh Kumar for the Appellant.

Mahendra Anand, Ms. Hemantika Wahi and Ms. Anu Sahni for the
E

Respondent.

The Judgment of the Court was delivered by

SETHI, J. Actuated by jealousy, infuriated on account of self-conceived F
notions of her infidelity and demonstrating the possessive nature of his
mistress-keep Ubadiben Bhurabhai, the appellant committed an unusually
usual crime of her murder. To quench his thirst of anger, he sprinkled the
blood of the deceased all around by piercing her body with the knife he
possessed by inflicting as many as 35 injuries on her person. The trial G
court acquitted the appellant, apparently, on extraneous considerations
end the appeal filed by the State was allowed vide the judgment impugned
holding the appellant guilty for the offence of murder punishable under
Section 302 of the Indian Penal Code and sentencing him to undergo life
·imprisonment. He was also found guilty for the commission of offence
under Section 452 IPC but no separate sentence was awarded for that H
60 SUPREME COURT REPORTS [2002] 2 S.C.R.

A offence.

According to the prosecution, the deceased was a resident of Dadiapada,
Navinagri where she had some houses. Complainant Saiyed Khan Majid
Khan (PW2) had taken one of the houses on rent from her, as he wanted to
B start factory at Dadiapada. The deceased was residing in another house nearby
the house leased out to the complainant (PW2). The appellant was stated to
be the kept-husband of the deceased and both were living as husband and
wife for the last 7-8 years. Two months prior to the date of occurrence, the
appellant is alleged to have attempted to kill the deceased with an axe for
which the deceased had filed a complaint before the police. On 7.8.1984
C when PW2 was present at his house, the deceased went to his house and was >-
sitting on the chair in front of the room of that house. Besides the complainant,
two girls, namely, Nayana (PW9) and Shuruti (PWlO) of that locality were
also there sitting on the cart. The deceased was. informing the complainant
not to allow the accused-appellant to take away anything from that house on
any pretext. At about 11.30 a.m. on that day accused came in the house
D leased out to PW2 and stood on the Otala and demanded his clothes from the
deceased. When she told him that she was not having his clothes, he got
excited, pulled out a dagger from his waist and gave a blow with that dagger
on the stomach of the deceased while she was sitting on the chair. After
receiving the injury the deceased fell down and started crying. The persuations
E of PW2 to stop the accused from committing the crime had no effect and he
gave repeated blows of his dagger on the body of Ubadiben, with the result
she received 35 injuries on various parts of her body. Her clothes were
stained with blood and she died on the spot. The accused ran away with his
dagger. Yusutkhan Nurkhan and Abdul Razzak Akbar, are stated to have
seen the accused running away from the house of the complainant with
F dagger. The complainant (PW2) thereafter lodged the complaint Exhibit 8
before the police. After registration of the case, the police came on spot and
drew the inquest Panchanama of the dead body of the deceased. Panchanama
of the scene of occurrence and dead body was also prepared. Post-mortem of
the deceased was conducted on the following day. According to the prosecution
G the accused himself appeared before the police on 8.8.1984 along with the
weapon of offence which was seized in presence of two Panch witnesses. The
appellant was arrested and his blood stained clothes and dagger were seized
vide Panchanam Exhibit 21.

After completion of the usual investigation, the charge-sheet was filed
H in the court. During the trial, out of three eye-witnesses only PW2 supported
HARISINGH M. VASA VA v. STATE OF GUJARAT [SETHI, J.] 61

the case of the prosecution. The two girls, namely, Nayana and Shuruti were A
declared hostile as they stated to have not seen the occurrence. In his statement,
recorded under Section 313 Cr.P.C., the accused denied to have committed
any offence. He submitted that he did not cause any injury to the deceased
and was being falsely involved in the present case. No evidence was led in
defence.
B
For acquitting the accused, the trial court found that the prosecution
had failed to connect the accused with the commission of crime as, according
to it, the evidence of complainant (PW2) did not inspire the confidence on
account of Nayana (PW9) and Shuruti (PWlO) having not supported the
prosecution case. The evidence of Abdul Razzak Akbar (PWl I) was not C
accepted as he was held to be a chance witness. On account of Panch witnesses
Thakarbhai at Ex. 20 and Bharatsingh at Ex. 22 turning hostile, the seizure
of the clothes and weapon of offence was held not proved. The prosecution
was stated to have not successfully established the nexus with the injuries
and the authorship thereof. The illicit relationship between the deceased and
PW2 was termed to be as an indication of partisanship. PW2 was also not D
relied upon on the ground that he did not intervene when the deceased was
given one after the other successive knife. blows by the appellant in his own
house in front of him and, therefore, it was a doubtful circumstance, the
benefit of which was given to the accused. The conduct of the complainant
was stated to be not free from suspicion. It was further held that as many E
other persons had collected at the venue of the offence but the complainant
did not mention the name of any other witness or the neighbour collected on
the spot in his complaint, he could not be relied upon.

In appeal, the High Court evaluated the whole of the prosecution
evidence and found that prosecution had successfully established the culpability F
of the accused for committing the murder after trespassing into the house of
the complainant without any shadow of doubt. It was held that the view
adopted by the trial court and the ultimate conclusion arrived at was not
sustainable. The High Court found that the trial court had adopted not only
unreasonable but perverse approach in discarding the reliable evidence of
eye-witnesses which undoubtedly, has intrinsic quality and forensic worth. G
The view which the trial court reached in discarding the testimony of the
wimesses was totally unjustified. For relying upon the testimony of the
complainant (PW2), the High Court was impressed by the following
circumstances:

"(i) It was he who immediately rushes to Deidapada police station H
62 SUPREME COURT REPORTS [2002] 2 S.C.R.

A and lodges a complaint without any loss of time within half an hour.
It is an important event succeeded the incident which has been lost
sight of by the learned trial court judge. In case of delay, which has
not been accounted for, it could be argued that the complainant had
sufficient time to manipulate. This is the case where such a hypothesis
has no role. A complainant, who immediately, after having seen that
B accused giving successive knife blows on the person of deceased
Ubadi, and after accused fled away from the deceased was no more,
obviously, a reasonable and prudent ordinary person, would react in
a way as the complainant did. He immediately went to the police
station and gave the account of the incident which was recorded by
c police Head-constable, Narpatsingh, PW 12, Ex. 27. So, the complaint,
which is an important piece of corroborative evidence, came to be
lodged without any loss of time and which was recorded as narrated
by complainant which is produced at Ex. 8 fully reinforces the
testimony of the complainant. This factum of lodging FIR, without
loss of time, before the competent police officer, and narrating the
D same incident and deposing the same incident before the court, lends
very significant support to the evidence of the complainant.
(ii) There was motive on the part of the accused to resolve to the
ghastly killing but deceased Bai Ubadi, as it is noticed from the
evidence and which is not questioned before us, was living with the
E accused as his wife. Both of them lived as husband made wife in the
eyes of the society for almost a spell of 8 years and obvio1,1sly when
he sees his beloved and a person near to her as only him in the
company of the complainant on the day of the incident, obviously
would not like. However, instead of taking recourse to the law, accused
F who had come with a knife started giving blows after blows. There
was exchange of words as noticed from the record between the
deceased and the complainant. It is also noticed by us from the
evidence that the deceased and the complainant Saiyedkhan had also
intimate relationship which obviously would not be liking of accused.
(iii) Complainant is the tenant of deceased Bai Ubadi who had rented
G
a part of the house at a monthly rent of Rs. 80, and the deceased Bai
Ubadi was landlady. It is also noticed by us that deceased Ubadi
landlady of the house of the complainant had gone· to Dediapada
where her house is situated to attend a meeting of Panchayat and she
had also gone to the place of complainant for the obvious reasons and
H in between them unfortunately for the deceased, accused reached to
HARISINGHM. VASA VA v. STATE OF GUJARAT [SETHI,J.] 63
the venue and found his dear ones in the company of complainant. A
(iv) The deceased was, though stayed with accused for almost a period
of 8 years probably, may be enjoying the company not of marital
bliss, as earlier also accused had inflicted axe blow on her person for
which the deceased had lodged complaint. The documentary evidence
produced at Ex. 17 is the complaint of the deceased against the accused, B
Ex. 18 is the certified. copy of the order recorded in a category of
Criminal case known as "Chapter Case", which is also reinforced by
the evidence of the son of the deceased Virji Bangra, PW at Ex. 12.
It is clearly testified by him that his deceased mother was attacked by
the accused with axe blows and the complaint was lodged against C
him by the mother. This is also a motive. Of course, once the
complicity of the accused is established without any reasonable doubt,
the motive falls into in.significance. However, we have highlighted it
for the reason that it is a factor which materially and substantially
lends support to the testimony of the complainant Saidyedkhan."
Assailing the judgment of the High Court Shri Y.P. Adhyaru, Senior
D
Advocate contended that as there is no corroborative evidence to the testimony
of PW2, his lone statement cannot be made a ground for convicting and
sentencing the appellant. He further submitted that he also being a paramour
of the deceased was an interested witness. As he failed to intervene and did
not take any step to save the deceased when she was being attacked by the E
appellant, his presence on the spot becomes very doubtful. Non mentioning
of the names of the people in the FIR who allegedly gathered on the spot is
a further circumstance which weakens the testimony of PW2. It is further
submitted that the trial court was justified in discarding the testimony of PW2
for the reasons detailed in its judgment.
F
We are not impressed with any of the submissions made on behalf of
the appellant as we feel that none of the circumstances pointed out have any
substance. Otherwise also the grounds urged to disbelieve PW2 are based on
misconception of facts and law. It cannot be said that there is no corroboration
of the testimony of PW2. There is sufficient corroboration in this case as is G
evident from the medical evidence showing the infliction of a number of
injuries with the weapon of offence stated to have been used by the appellant.
His appearance before the police with the dagger and the blood stained clothes
fully corroborates the prosecution evidence. No doubt is left in our mind
when it is proved that blood stained clothes and the weapon of offence had
the same group of blood which was that of the deceased. The FIR has been H
64 SUPREME COURT REPORTS (2002) 2 S.C.R.

A lodged promptly with sufficient details. On appreciation of evidence, the
High Court has assigned valid reasons for believing the testimony of PW2
and rightly held that the trial court had arrived at erroneous conclusions of
fact and law.

Merely because PW2 did not intervene at the time when the appellant
B was inflicting knife blows on the person of the deceased cannot be a ground
to discard his testimony. Only because the eye-witness fails to intervene to
save the deceased, cannot be made a ground to reject his testimony particularly
when he is not a.sked as to what restrained or refrained him from intervening
to save the deceased. In the instant case the nature of injuries inflicted on the :-.
C person of the deceased and the weapon of offence he was having in his hand
is indicative of the state of mind of PW2 which obviously prevented him
from intervening.

The non mentioning of the names of the people, stated to have gathered
on the spot, in the FIR does not, in any way, help the defence in this case.
D No effort was made or suggestion given to any of the witness that besides
PW2, Nayana (PW9), Shuruti (PWIO) any other person had seen the
occurrence or that the prosecution was unnecessarily suppressing the alleged ·~
independent evidence.

The intimate relations between the deceased and the complainant on
E account of their relationship of landlady and tenant cannot be stretched to the
extent of holding that PW2 was an interested witness in the case. The manner
and the place where the occurrence had taken place unambiguously suggests
that PW2 is the natural witness of the occurrence. Merely because Nayana
.(PW9) and Shuruti (PWIO) were declared hostile would not render the
evidence of PW2 inadmissible in view of the fact that he stands corroborated
F in material particulars by other evidence including the statement of PW7.

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
G 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
accused is reinforced. 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
H hypothesis and not on the legal evidence, a duty is cast upon the High Court
HARISINGH M. VASA VA v. STATE OF GUJARAT [SETHI, J.] 65

7 to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining A
- as to whether the 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 view of the above, the High Court was justified in interfering in this
case by setting aside the judgment of the trial court. We do not find any
illegality or error of jurisdiction requiring our ir.terference.

There is no merit in the appeal which is accordingly dismissed.
c
T.N.A. Appeal dismissed.