Holding

The High Court erred in using the case diary as evidence and in convicting the accused under Section 302/149 after their acquittal under Section 148; the trial court's acquittal stands.

Summary

The accused (MD. Ankoos & others) were charged with murder, rioting, house trespass and related offences for the killing of five villagers suspected of sorcery. The trial court acquitted all 77 accused, finding the eye‑witness testimonies (PW‑2 to PW‑4) unreliable and noting contradictions. The High Court set aside the acquittal of 19 accused, convicting them under Section 302 read with Section 149 IPC, while upholding acquittals under Sections 148 and 448 IPC. The Supreme Court held that the High Court erred by relying on the police case diary as evidence contrary to Section 172 CrPC, by disregarding the trial court’s reasonable assessment of witness credibility, and by convicting under 302/149 when the accused had been acquitted under 148 IPC. Consequently, the appeal was allowed, the High Court judgment set aside and the appellants released.

Issues considered

The appellate court's power to overturn a trial court acquittal on a different view of the evidence.
Whether a police case diary under Section 172 CrPC can be used as evidence to contradict witnesses.
Whether conviction under Section 302 read with Section 149 IPC is permissible after acquittal under Section 148 IPC.
The admissibility and weight of the eye‑witness testimonies of PW‑2, PW‑3 and PW‑4.

Legislation cited

Code of Criminal Procedure, 1973s. 161(3), s. 162, s. 172(2), s. 172(3)
Indian Evidence Act, 1872s. 145
Indian Penal Code, 1860s. 109, s. 120-B, s. 148, s. 149, s. 302, s. 307, s. 448

Subjects

murderriotingunlawful assemblycase diaryevidentiary standardsacquittalappellate reviewSection 148 IPCSection 149 IPCSection 302 IPCSection 448 IPCcriminal procedurewitness credibility

Judgment

[2009] 15 (ADDL.) S.C.R. 616

A MD. ANKOOS & ORS.
v. ~ ~>

THE PUBLIC PROSECUTOR, H!GH COURT OF A.P.
(Criminal Appeal No, 120 of 2008)
NOVEMBER 6, 2009 ·•,
B
(D.K. JAIN AND R.M. LODHA, JJ.]

Penal Code, 1860 - ss. 3021149 - Conviction under - ,
Apcused suspecting that deceased practiced sorcery - "
c Murder of five and injuries to two - 77 accused charged u/ss.
148, 448, 307, 302, 120-B rw s. 109 - Acquittal by trial court
- High Court convicting 19 persons u/s. 3021149 -
Interference with - Held: Evidence of eye-witness.es full of
embellishments and improvements - High Court erred in
D placing reliance on the case diary as a piece of evidence -
Accused having been acquitted u/s. 148 by courts below, they
could not have been legally convicted by High Court u/s. 3021 ..,..
149 - Offence of rioting occurs when members are charged "--
with murder as common object of unlawful assembly - All
accused charged u/s. 448 acquitted as prosecution failed to
E
establish the said offence against them - Absence of cogent
and reliable evidence against accused connecting them to
crime - Thus, order of High Court set aside - Code of
Criminal Procedure, 1973 - s. 161(3) and 172(2).
,.
t-
F According to the prosecution case, accused
suspected that deceased were practicing sorcery and as
a result few deaths took place in the village. On the fateful
day, 78 persons armed with sticks and chilli powder
formed an unlawful as~embly and committed murder of
G D-1, D-2, D-3, D-4, D-5 and injured PW-6 and PW-7. They
poured kerosene on t~e deceased and set them on fire.
77 accused were tried for offences u/ss. 148, 448, 307, ~ "
302, 120-8 rw s. 109 IPC. Trial court acquitted all of them.
High Court upheld the acquittal of 59 persons u/s. 148
H 616
MD. ANKOOS & ORS. v. THE PUBLIC 617
PROSECUTOR, HIGH COURT OF A.P.

.
~ ~
and 448 IPC but convicted others for offence punishable A
u/s. 302/149 IPC and sentenced them to imprisonment for
life. Hence the present appeal.

Allowing the appeal, the Court

HELD: 1. The view of the trial court in passing the B
judgment of acquittal is a possible view and cannot be
said to be palpably wrong on facts or based on
erroneous view of law and, therefore, High Court was not
justified in interfering with the judgment of acquittal. Five
persons were done to death in the dead of night in a c
ghastly manner and the whole incident is quite shocking
but in the absence of cogent and reliable evidence
against the appellants connecting them to crime, view of
the trial court in passing the judgment of acquittal cannot
be said to be unjustified. [Para 30] [642-D-F] D
• "I 2.1. The prosecution tendered PW-2, PW-3, PW-4,
PW-5, PW-6, PW-7, PW-8 and PW-9 as eye-witnesses in
support of its case. The witnesses other than PW-2, PW-
3 and PW-4 did not support prosecution case and they
were declared hostile witnesses. PW-2 is son of D-1. Trial E
court held that his evidence is full of embellishments and
improvements. Trial court was also not convinced to
)I
accept the testimony of PW-3, husband of 0-5 as his
-1 evidence was inconsistent on material points with the
evidence of PW-2. Trial court pointed out the material F
contradictions in the deposition of PW-3. As regards PW-
4 who is son of D-3 and D-4, the trial court found his
evidence self-contradictory and also doubted his
witnessing the incident. [Paras 14, 15 and 16] [632-A-B;
634-C;635-C-D] G

~ ¥ 2.2. Although PW-6 and PW-7 are injured witnesses
and, according to prosecution, they were beaten at the
scene of offence by the villagers but in their deposition,
they stated that they went to the scene of occurrence H
618 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A voluntarily. Neither of them named any of the accused for
the injuries sustained by them. PW-8 is daughter of 0-3
and 0-4 and she deposed that she did not witness the
incident and came to know about the same on the next
day through the wife of PW-4. PW-9 deposed that at
B midnight he heard the commotion and rushed to the
scene of offence but he returned back to his house after
somebody beat him and he could not identify as it was
dark night. Thus, the trial court held that PW-5 to PW-9
have not supported the case of prosecution at all. They
C were declared hostile witnesses by the prosecution.
[Paras 17 and 18) [636-8-D]

3. High Court accepted the view of the trial court that
offence punishable u/s. 148 IPC is not made out. It
affirmed the acquittal of the accused u/s .. 148 IPC. With
D regard to the offence punishable u/s. 448, High Court
held that the evidence was lacking as to who actually
trespassed into the houses of the deceased and forcibly
dragged them out of their respective house. High Court
upheld the finding of the trial court acquitting the accused
E for the offence u/s. 448 IPC. [Paras 19 and 20) [636-E; 637-
8)

4.1. High Court held that PW-2 to PW-4 were reliable
being eye-witnesses of truth. It held that the
F contradictions in the evidence of PW-2 to PW-4 and the
evidence of Investigating Officer-PW 20 about the
presence of accused cannot be accepted as the evidence
of PW-20 is liable to be discarded. This opinion was
formed by the High Court by perusal of the statements
of PW-2 to PW-4 recorded under section 161(3) Cr.P.C.
G after calling for the case diary in exercise of the power
of the Court under section 172(2) Cr.P.C. High Court erred
in accepting the evidence of PW'.'2 to PW-4 without
adequately meeting the reasons given by the trial court
for not accepting their evidence. Moreover, on
H
~
J MD. ANKOOS & ORS. v. THE PUBLIC 619
PROSECUTOR, HIGH COURT OF AP.
consideration of the evidence of these witnesses, it is A
.,. ) found that the view of the trial court in not accepting the
evidence of PW-2, PW-3 and PW-4 cannot be said to be
erroneous. [Paras 21 and 22] [637-C-F]

4.2. It is clear by section 172(2) Cr.P.C. that a criminal
court can use the case diary in the aid of any inquiry or B
trial but not as an evidence. Section 172(3) places
restrictions upon the use of case diary by providing that
accused has no right to call for the case diary but if it is
--Y y
used by the police officer who made the entries for
refreshing his memory or if the Court uses it for the c
purpose of contradicting such police officer, it wiil be so
done in the manner provided in section 161 of the Code
\.. and section 145 of the Evidence Act. Court's power to
consider the case diary is not unfettered. In light of the
inhibitions contained in s. 172(2), it is not open to the D.
Court to place reliance on the case diary as a piece of
"'( evidence directly or indirectly. [Para 24] [638-E-G]

4.3. High Court erred in placing reliance upon the
evidence of PW-2 to PW-4 by verifying their statements E
recorded u/s. 161(3) of the Code from the case diary;
particularly for contradicting PW-20 without affording any
opportunity to him to explain the position. The course
11'.
adopted by the High Court is impermissible in law as s.
i 172 of the Code is not meant to be used to overcome the
~
contradictions pointed out by the defence. High Court
F
heavily relied upon the deposition of PW-2 to PW-4 in
setting aside the judgment of acquittal passed by the trial
' '
lllllN
court. As a result of said error of law, judgment of the
High Court is rendered unsustainable. [Paras 25 and 26]
[639-F-G; 640-A-D] G.

'~ ¥
Mahabir Singh v. State of Haryana (2001) 7 SCC 148,
referred to.

5.1. Section 149 IPC creates constructive liability i.e. H
...
620 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R. t

A a person who is a member of the unlawful assembly is
made guilty of the offence committed by another member ~ -"'·
of the same assembly in the circumstances mentioned in
the Section, although he may have had no intention to
commit that offence and had done no overt act except his
B presence in the assembly and sharing the common
object of that assembly. Because of a mere defect in
language or in the narration or in form of the -charge, the
conviction would not be rendered bad if accused has not
been affected thereby. But in the instant case where the "I. /!
appellants have been expressly charged for the offence I
c punishable u/s. 148 IPC and have been acquitted
thereunder, they cannot be legally convicted for the
offence punishable u/s. 302/149. It is so because the
offence of rioting must occur when members are charged ~
with murder as the common object of the unlawful
D assembly. Section 148 IPC creates liability on persons
armed with deadly weapons and is a distinct offence and ,,..
there is no requirement in law that members of unlawful
assembly have also to be charged u/s. 148 IPC for legally
recording their conviction u/s. 302/149 IPC. However,
E where an accused is charged u/s. 148 IPC and acquitted,
conviction of such accused u/s.302/149 IPC could not be
legally recorded. Appellants having been acquitted u/s.
148 IPC by the trial court as well as the High Court, they "1:
could not have been legally convicted by the High Court
F u/s. 302/149 IPC. [Paras 28 and 29) [641-A-F; 642-B]
r
Mahadev Sharma v. State of Bihar (1966) 1 SCR 18,
relied on.
..,..__
5.2. The prosecuti9n came out with the case that the l----
G accused committed house trespass by entering into
houses of D-1 to D-5 and dragged them out with an intent ';- ...._
t--
to kill. All accused persons were charged u/s. 448 IPC but
all of them have been acquitted as prosecution failed to
establish the said offence against them. This dislodges
H
MD. ANKOOS & ORS. v. THE PUBLIC 621
PROSECUTOR, HIGH COURT OF A.P.

the material aspect of the prosecution case. [Para 30] A
~ ) [642-C-D]
Ghurey Lal v. State Of Uttar Pradesh (2008) 10 SCC 450
, referred to.
Case Law Reference : B
(2008) 10 SCC 450 Referred to Para 12
(2001) 7 SCC 148 Referred to Para 24
)'
(1966) 1 SCR 18 Relied on Para 28
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
c
Nos. 120 of 2008.
From the Judgment & Order dated 04.10.2007 of the High
Court of Andhra Pradesh at Hyderabad in Criminal Appeal No.
556 of 2005. D
A.T.M. Ranga Ramanujan. Gouri Karuna Oas, Anu Gupta,
Rani Jethmalani, for the Appellants.
I. Venkatanarayna, Altaf Fathima, D. Bharathi Reddy,
Anuradha Rustogi, for the Respondent. It
The Judgment of the Court was delivered by
R.M. LODHA, J. 1. Five persons were done to death in
the intervening night of October 2 and 3, 2000 in village
Thimmapur, District Warangal. The villagers suspected that F
deceased were practicing sorcery and due to that few deaths
took place in the village. 77 persons were sent up for trial for
the offences under Sections 148, 448, 307, 302, 120-B read
with 109, IPC. The Court of 2nd Additional Sessions Judge at
Warangal vide his judgment dated June 9, 2009 acquitted all G
of them. In the appeal preferred by the State of Andhra
Pradesh, High Court confirmed the judgment of acquittal of 59
accused but convicted nineteen persons for the offence
punishable under Section 302 read with Section 149, IPC and
sentenced them to undergo imprisonment for life vide judgment
H'
622 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A dated October 4, 2007. Their acquittal for other offences was,
however, confirmed. All these nineteen convicted persons
preferred special leave petition in which leave has been
granted and appeal has come up for hearing before us.

8 2. Few cattle died in the village Thimmapur in 1997. The
death of these cattle were due to sudden ill-health. The villagers
· ·· .. of_ Thimmapur suspected that their cattle died due to sorcery
practiced by some of the villagers. T. Lingaiah (A-19), G.
Sambaiah (A-60), B. Mallaiah (A-61), M. Ramreddy (A-62) and
C K. Veeraswamy (A-69) thought of identifying the culprits. They
called M. Yakaiah (A-16)- a Mantrik from Lingapuram village;
collected some donations from the villagers and paid to him to
identify the persons responsible for the death of cattle. A-16
revealed the names of Chatta Boina llu Mallamma @ llamma
(D-1), Velpula Narsamma (D-2), Konkanoori Yellaiah (D-3),
0 Konkanoori Rajamma (D-4), Veera Uppakantha (D-5),
Panduga Renuka (PW-6) and Pochala Yeshoda (PW-7)
responsible for the tragedy. About fifteen days prior to the
incident, one Boyana Bikshapathi, son of B. Venkataiah (A-17)
and B. Rayalaxmi (A-72) and brother of B. Sampath (A-71) and
E B. Ravi (A-73) died at MGM Hospital at Warangal. Ten days
prior to the incident, one Pandunga Nirmala relative of P.
Yadagiri (A-9), P. Hymavathi (A-10), P. Ramulu (A-26), P.
Buchaiah (A-59) and P. Ellaswamy (A-76) died in the village
due to ill-health. The case of the prosecution is that the accused
F hatched a plan on August 2, 2000 to kill D-1, D-2, D-3, D-4,
D-5, PW-6 and PW-7 as they suspected that these persons
were responsible for these deaths because of sorcery played
by them. According to the prosecution 78 persons viz., Md.
Ankoos (A-1), D. Vella Swamy (A-2), Ch. Laxmaiah (A-3), S.
G Babu (A-4), Ch. Shankar (A-5), I. Buchaiah (A-6), K. Sammaiah
(A-7), K. Bhasker (A-8), P. Yadagiri (A-9), P. Hymavathi (A-10),
I. Mogili (A-11), K. Raju (A-12), K. Suresh (A..:13), I. Ellaiah (A-
14), N. Sudhakaar (A-15), B. Venkataiah (A-17), A. Chandraiah
(A-18), T. Lingaiah (A-19), M. Venu (A-20), Neerati Sudhaker
H (A-21), Ch. Veeralaxmi (A-22), K. Laxrni (A-23), V. Vijaya (A-
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 623
HIGH COURT OF A.P. [R.M. LODHA, J.]

24), A. Lalitha (A-25), P. Ramulu (A-26), P. Narasaiah (A-27), A
~ ) V. Mogili (A-28), Ch. Satyanarayana (A-29), M. Laxmi (A-30),
I. Renuka (A-31 ), E. Aruna (A-32), S. Padma (A-33), Ch.
Yakamma (A-34), K. Mariya (A-35), K. Narsamma (A-36), K.
( Yellamma (A-37), K. Komuramma (A-38), S. Radha (A-39), K.
Kanakalaxmi (A-40), N. Bhadramma (A-41), K. Kamalamma B
(A-42), N. Narsamma (A-43), M. Ahalya (A-44), D. Vaka Laxmi
(A-45), S. Laxmi (A-46), N. Bhadramma (A-47), N. Suguna (A-
48), V. Narsamma (A-49), I. Yakaiah (A-50), K. Narsaiah (A-
51), S. Ramchandru (A-52), P. Roja (A-53), B. Bichamma (A-
... 'f
54), D. Saramma (A-55), D. Laxmi (A-56), Ch. Sammakka (A-
57), A. Soundarya (A-58), P. Buchaiah (A-59), M. Ramreddy
c
(A-62), V. lylaiah (A-63), I. Bab"u (A-64), T. Sadaiah (A-65), T.
Vishnu (A-66), B. Sudhakar (A-67), N. llumallu (A-68), K.
Veeraswamy (A-69), D. Sarangapani (A-70),B. Sampath (/>:--
71), B. Rayalaxmi (A-72), B. Ravi (A-73), Ch. Sammaiah (A-
74), D. Yakaiah (A-75), P. Ellaswamy (A-76), K. Veeraiah (A- 0
77) and T. Veeraswamy (A-78) formed an unlawful assembly;
some of them were armed with sticks while the women
accused held chilli powder and gathered in front of the house
of A-7. A-1, A-5 and A-6 entered the house of D-2 and
dragged her out. Similarly, A-11, A-13, A-14 dragged D-5, A- E
9, A-10, A-26 and A-29 dragged D-3 and D-4; A-2, A-3, A-4
and A-17 dragged D-1; A-28, A-31 and A-33 dragged PW-6
and A-18, A-20 and A-24 dragged PW-7 out of their respective
"' ~ houses forcibly. A-1 to A-15, A-17 to A-59 and A-63 to A-78
gave beating to D-1 to D-5, PW-6 and PW-7 with sticks and F
women accused sprinkled chilli powder sprinkled on their faces.
PW-6 and PW-7 ran away from the scene with injuries. The
prosecution has further come out with the case that A-19, A-
65 and A-66 brought a drum of kerosene and A-1 to A-15, A-
·· 17 to A-59 and A-62 to A-78 poured kerosene on D-1, D-2, G
D-3, D-4 and D-5 and set them on fire, as a result of which D-
~ ~ 1 D-2, D-3 and D-4 died on the spot while D-5 died at MGM
Hospital, Warangal.

3. S. Venkateshwara Rao (PW-1)-Village Administrative
H,
I
)

624 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A Officer - on August 3, 2000 lodged a report about the incident
at police station Sangam at about 6.00 a.m. Ch. Rajeshwar l
.I.
~
Rao (PW-20) - Inspector of Police - upon receipt of information '

immediately rushed to the scene of occurrence; conducted
Inquest Panchnama over the dead bodies and sent the dead \

B bodies to MGM Hospital, Warangal for post-mortem. PW-20
seized the kerosene drum (M0-1) at the scene of offence and
took steps towards investigation and after collecting the
evidence and on completion of investigation, submitted charge-
sheet against A-1 to A-78 before the Court of Ill Additional
~
Judicial First Class Magistrate, Warangal who committed them
c to court of sessions for trial. A-21 being juvenile was separated
~

\
1
from the trial. ,,
4. Accused (77 in number) were charged for the following t:=
offences:
D
"CHARGE NO. 1 :
'y
That you A. 1 to A. 15, A. 17 to A. 59 and A.
62 to A.78 on 2/3.8.2000 at about 0100 hr. at
Thimmapur (v) were members of an unlawful
E assembly and did, in prosecution of the common
object of such assembly, namely to commit the
murder of D.1) S. lyla Mallamma, D.2) V.
Narsamma, D.3) K. Nuri Yellaiah D.4) K. Rajamma, ~

D.5) E. Uppakantha, commit the offence of rioting ~
F by pouring kerosene and that you thereby
committed an offence punishable u/S. 148 IPC and
within the cognizance of this Court.

CHARGE NO. 2 :
G
That you on the above mentioned date, time
and place committed house-trespass by entering ;
)# "
into the houses of D. 1 to D.5 with intent to kill them
and that you thereby committed an offence
punishable u/S. 448 IPC and within the cognizance
H
),

~\
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 625
HIGH COURT OF AP. [R.M. LODHA, J.]

of this Court. A
,-. ,J-
CHARGE NO. 3 :

That you on the above mentioned date, time
and place did an act i.e. murder of D.1 to D. 5 with
such intention and under such circumstances that 8
if by that act you had caused the death of D. 1 to
D. 5 you would have been guilty of murder and that
,, you thereby committed an offence punishable u/S.
307 IPC and within the cognizance of this Court.
c
CHARGE NO. 4 :

That you on the above mentioned date, time
and place did commit murder by intentionally
causing the death of D.1 to D.5 and that you
D
thereby committed an offence punishable u/S. 302
~
IPC and within the cognizance of this Court.

CHARGE NO. 5 :

That you A.16, A.60 and A.61 on the above E
mentioned date, time and place were members of
an unlawful assembly to do an illegal act i.e. murder

.. of D.1 to D.5 and that the same act was done in
pursuance of the agreement which was committed
~ in consequences of abatement and that you have
F
thereby committed an offence punishable u/S. 120-
8 r/w 109 IPC and within the cognizance of this
Court."

5. The prosecution examined twenty-two witnesses of
which PW-2, PW-3, PW-4, PW-5, PW-6, PW-7, PW-8 and PW- G
9 were tendered as eye-witnesses.
J ~

6. The postmortem of the dead bodies was conducted on
August 4, 2000. The postmortem of dead body of D-1 records
that she died of burn injuries. The injuries sustained by her are H
..
'
626 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A recorded in the postmortem report thus :
~ .... ,
"1. A contusion of 8 x 6 cm present over the vertex area
of scalp.

2. A contusion of 6 x 4 cm present on outer aspect of
B left arm.

3. A contusion of 7 x 4 cm present on outer aspect of
right shoulder.

4. A contusion over area of 16 x 10 cm present on
c back trunk.

5. A contusion over an area of 9 x 5 cm present on
right buttock.

D 6. Antemortem, fresh deep burn injuries are present
over scalp, face, neck, both sides of trunk, both
upper limbs, perenium and both lower limbs up to ~

knees, sparing both legs. The burns more deep
over anterior abdominal wall and made a rent in it
E through which intestines are coming out. About 90%
of body surface area is involved."

7. D-2 also died of burn injuries and the following injuries
are recorded in the postmortem report concerning D-2 :
~ "'
F "1. A contusion of 6 x 4 cm present on occipital area
of scalp.

2. A contusion of 3 x 2 cm present on outer aspect of
left elbow.
G 3. A contusion of 6 x 4 cm present on outer aspect of
right shoulder.
..,, '
4. A contusion of 8 x 6 cm present on back of trunk.

5. A contusion of 4 x 3 cm present on right buttock.
H
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 627
HIGH COURT OF A.P. [R.M. LODHA, J.]
6. A contusion of 8 x 4 cm present on outer aspect of A
left buttock.

7. Antemortem, deep burns present on scalp, face,
neck, both sides of trunk, both upper limbs, both
lower limbs and perenium, with bone deep on left
8
side body over arm and buttock and cavity deep at
abdomen. About 100% of body surface area is
involved."

8. As regards D-3, the postmortem report records the
following injuries : c
"1. A contusion of 6 x 4 cm present over vertex area
of scalp.
2. A contusion of 6 x 4 cm present over outer aspect
of right arm. D
3. A contusion of 5 x 4 cm present over outer aspect
of left arm.
4. A contusion of 18 x 12 cm present over back of
trunk. E
5. A contusion of 6 x 4 cm present on o~ aspect of
right wrist.
6. A contusion of 3 x 2 cm present over right elbow,
outer aspect.
7.
. F
A contusion of 4 x 3 cm present over outer aspect
of left elbow.
8. A contusion of 4 x 3 cm present over outer aspect
of left wrist.
G
9. A contusion of 7 x 5 cm present on back of right
buttock.
10. A contusion of 8 x 6 cm present on back of left
buttock.
H
628 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A 11. A contusion of 10 x 6 cm present on front of right
thigh. ~ ~

12. A contusion of 8 x 4 cm present on front of left thigh.
13. A contusion of 6 x 4 cm present on outer aspect of
B right leg.
14. A contusion of 5 x 3 cm present on outer aspect of
left leg.
15. A contusion of 6 x 4 cm present on left sole. "(

c 16. Antemortem, mixed burn injuries are present on
scalp, face, neck, both sides of trunk, both upper
limbs, both lower limbs and perenium, except over
both feet. About 95% of body surface area is
involved."
D
9. D-4 also died of burn injuries. The postmortem report
records the following injuries on her.
¥
"1. A contusion over an area of 20 x 16 cm present on
entire area of scalp.
E 2. Antemortem, deep burns present on scalp, face,
neck, both sides of trunk, both upper limbs, both
lower limbs and perenium. The burns are cavity·
deep at abdomen and intestines came out through 4.

the deficit and part of them are burnt. They are bone r
F deep and muscles are charred on both upper limbs
and lower limbs. About 100% of body surface area
is involved."
10. The cause of death of D-5, as reflected in postmortem

..
report, is again burn injuries. The following injuries are recorded
G
in the postmortem report concerning D-5 :
"1. A contusion of 3 x 2 cm present on scalp on vertex
area.
2. A contusion over an area of 20 x 8 cm, present on
H
MD. AN KOOS & ORS .. v. THE PUBLIC PROSECUTOR, 629
HIGH COURT OF AP. [R.M. LODHA, J.]

right shoulder outer aspect. A
...-.,; )
3. A contusion of 10 x 8 cm, present on outer aspect
of left arm.
4. A contusion of 8 x 6 cm present on outer aspect of
left wrist area. B
5. A contusion over an area of 16 x 1O cm present on
right thigh, outer aspect.
~ 6. A contusion over an area of 10 x 8 cm present on
outer aspect of left buttock. c
7. Antemortem burns of mixed degree, present on
face, scalp, neck, both sides of trunk, both upper
limbs, both lower limbs and perenium, with loss of
entire superficial skin. About 100% of body surface
area is involved." D

"I 11 . The death of D-1 to D-5 is neither accidental nor
suicidal; rather their death is established to be homicidal. The
trial court held that prosecution failed to establish the guilt of
the accused for the offences for which they were charged and, E
accordingly, acquitted them by giving benefit of doubt. The High
Court, however, upturned the judgment of acquittal insofar as

.. ~
present appellants are concerned and convicted them for the
offence punishable under Section 302 read with Section 149,
IPC and sentenced them to suffer imprisonment for life,
F
although their acquittal under Sections 148 and 448 IPC was
not interfered with.

12. This Court has, time and again, dealt with the scope
of exercise of power by the Appellate Court against judgment
of acquittal under Sections 378 and 386, Cr.P.C. It has been G
repeatedly held that if two views are possible, the Appellate
...... _-::-i-
Court should not ordinarily interfere with the judgment of
acquittal. This Court has laid down that Appellate Court shall
not reverse a judgment of acquittal because another view is
possible to be taken. It is not necessary to multiply the decisions H
630 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A on the subject and reference to a later decision of this Court in
Ghurey Lal v. State Of Uttar Pradesh1 shall suffice wherein this
Cou.rt considered a long line of cases and held thus :

"69. The following principles emerge from the cases
B above:

1. The appellate court may review the evidence in
appeals against acquittal under Sections 378 and
386 of the Criminal Procedure Code, 1973. Its
power of reviewing evidence is wide and the
c appellate court can reappreciate the entire
evidence on record. It can review the trial court's
conclusion with respect to both facts and law.

2. The accused is presumed innocent until proven
D guilty. The accused possessed this presumption
when he was before the trial court. The trial court's
acquittal bolsters the presumption that he is
innocent.
3. Due or proper weight and consideration must be
E given to the trial court's decision. This is especially
true when a witness' credibility is at issue. It is not
enough for ~h.e High Court to take a different view
of the evidence. There must also be substantial
and compelling reasons for holding that the trial
F court was wrong.

70. In light of the above, the High Court and other appellate
courts should follow the well-settled principles crystallised
by number of judgments if it is going to overrule or
G otherwise disturb the trial court's acquittal:

1. The appellate court may only overrule or
otherwise disturb the trial court's acquittal if it has ,...... '-"''

"very substantial and compelling r~asons" for doing
so.
-H
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 631
HIGH COURT OF AP. [RM. LODHA, J.]
A number of instances arise in which the appellate A
-- ). court would have "very substantial and competting
reasons" to discard the trial court's decision. "Very
substantial and compelling reasons" exist when:
(i) The trial court's conclusion with regard to
the facts is palpably wrong; ·B

(ii) The trial court's decision was based on
an erroneous view of law;
~
(iii) The trial court's judgment is likely to result
in "grave miscarriage of justice"; c
(iv) The entire approach of the trial court in
dealing with the evidence was patently
'._, illegal;
(v) The trial court's judgment was manifestly D
unjust and unreasonable;

- .,.
(vi) The trial court has ignored the evidence
or misread the material evidence or has
ignored material documents like dying
declarations/report of the ballistic expert, etc. E

(vii) This list is intended to be illustrative, not
........, exhaustive .
~ 2. The appellate court must always give proper
F
weight and consideration to the findings of the trial
court.

3. If two reasonable views can be reached-one
that leads to acquittal, the other to conviction-the
High Courts/appellate courts must rule in favour of G
the accused."
~ ~

13. The question to be considered is : is the High Court
justified in reversing the judgment of acquittal and convicting
the appellants for the offence punishable under Section 302
H
632 SUPREME COURT REPORTS [2009) 15 (ADDL.) S.C.R.

A read with Section 149, IPC .
•
14. The prosecution tendered PW-2, PW-3, PW-4, PW-
5, PW-6, PW-7, PW-8 and PW-9 as eye-witnesses in support
of its case. The witnesses other than PW-2, PW-3 and PW-4
8 did not support prosecution case and they were declared
hostile witnesses. PW-2 is son of D-1. The Trial Court did not
find his evidence worthy of acceptance as his evidence was
found to be inconsistent with the evidence of PW-3, PW-10 and
PW-20. The trial court also noticed material contradictions in
C his deposition. In cross examination he was completely shaken
in respect of his statement in chief that A-2, A-3, A-7, A-17, A-
60 and some others hatched the plan to do away with the
deceased persons suspecting them to be sorcerers. He
admitted in the cross examination that he was not aware as to
who brought D-2 and D-5 to the scene of offence. The Trial
D Court meticulously considered the evidence of PW-2 and gave
the following reasons in reaching the conclusion that his
evidence is full of embellishments and improvements : .
"No doubt, P.W. 2 has alleged in his chief-examination that
:::i '
..... E .ore ,sb~~jpynd A.2, A.3, A.7, A.17, A.60 and someothers
hatching a plan to do away the deceased persons
ton ,s~~§~et;Htig'vthem to be sorcerers but he did not state the
same before the Investigating Officer-P.W. 20 in his
19 q 01 qt~tEjw~nk~'~ t1~l ~r..P.C. He has a!so ?enied t~e said
1 F lsi1i ~Rri~ Pfn'tY~ 9r~c eol'1 his cross-exa~mat1on. Dunn_g the
1 1
cross-~xammaPion, P"-.w. 2 has admitted that he did not
know about· the approach of any of the accused persons
eno---t9Jhoi!§1 ~flv~ rlli"!n9lQgiJltwJt~kThimmapur (v) in order to
er!1-~.~~mHf~cth~1sgr~JE3~~· ,PF.;1YW.ip~ 6hes deposed in his chief-
8 G lo 1uoeK~mi~:it~~kl~1lflaj1iJc?.) ~~l·s~~..\<.~i1..6, ,A.9 to A.12, A.14,
A.41, A.48, A.59, A.68 and A:~i?e~ffi~gh~t the deceased
persons and P.Ws. 6 and 7 forcibly from their respective
huoJ f.fu>~~0Blilt d~riAgrtflS:ier0~-e~anninatt0a1 plpea::ould not say
gnit:)i'l@~e bfffi.l~l!lfitHEPd~as'E:fcdi&J.ppaWc!inUwBeaad2Narl5amma to
H H ~0£ nftii~E:l?eeftl3n(if !€1tferici1Ntf:i0l!~h:itkdmittettty ,ethe;yavy~e his
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 633
HIGH COURT OF A.P. [RM. LODHA, J.]
neighbours. He has also admitted at the end of his cross- A
. J examination that A.10 did not take the deceased, mother
of P.W. 2 to the scene of incident from his house. As per
his evidence in the cross-examination, by the time he
reached the scene of offence, he found gathering of 60 to
70 persons and that only 25 persons w~re near the B
deceased persons and others were at a distance. This
version creates doubt about his version given in the chief-
examination with regard to his witnessing of forcibly taking
i the deceased persons to the scene of offence. P.W. 2 has
given the duration of the incident as 9.00 p.m. to 3.00 a.m. c
and his presence at the scene althrough. As per his
version, he did not go to Police Station on the night of the
incident due to fear but went thereon the following morning
on 3.8.2k at 5.00 a.m. and informed about the incident to
." the SHO and returned back to his village. If this version is
taken to be true, it can be said that the police received the
D

¥
information about the incident at 5.00 a.m. for the first time
on 3.8.2k but not at 6.30 a.m. on the said day through PW-
1 by way of his complaint, ex. P.1. But contrary to the
evidence of P.W. 2, P.W. 10 has deposed that on the night
of the incident itself at about 2.00 a.m. P.W. 2 went to P.W. E
10, engaged his jeep, arrived to Thimmapur (v) at about
6.00 a.m. and then proceeded to Sangem P.S. and lodged
.... '
~
a written complaint. In fact, P.W. 2 has denied about it to
a suggestion given by the learned defence counsel in his
cross-examination. P.W. 10 in his cross-examination also F
deposed that P.W. 2 informed him that he came to know
about the incident on that night. If the version of P.W. 10
is taken to be true, the entire evidence of P.W. 2 has to
be jettisoned with regard to his actual witnessing of the
incident. P.W. 2 has deposed that he has given names of G
the culprits who have committed the offences to the A.S.I
"I ... and that he has noted down the same and obtained
signature of P.W. 2. But the C.I. of Police-P.W. 20 has
deposed that on the next day of the incident i.e. on 4.8.2k
H
634 SUPREME COURT REPORTS [2009] 15 (ADDL.} S.C.R.

-
A he has recorded the statements of witnesses including
P.W. 2 and for the first time came to know about the ,\ ~

names of accused persons. It is to be noted that as per
the evidence of P.W.2 and P.W.20, the C.I. of Police
visited Thimmapur (v) at 9.00 a.m. on 3.8.2k and that at
B that time, P.W. 2 was also present in the village. This
aspect creates doubt about the identity of the accused
persons during the course of investigation conducted by
P.W.20."
~
15. The Trial Court was also not convinced to accept the
c testimony of PW-3 (husband of D-5) as his evidence was
inconsistent on material points with the evidence of PW-2. The
Trial Court pointed out the material contradictions in the
deposition of PW-3 thus :

"P.W. 3 is husband of the deceased Uppakanthamma. He ~
D
has given time of the incident as 9.00 p.m. which is contrary
to the time noticed in Ex. P.1as1.00 a.m. As per the 'f
evidence of P.W. 3, A.1, A.2, A.3, A.5, A.6, A.7, A.10 to
A.13, A.34, A.37 and A.54 took his deceased wife forcibly
E from his house to the scene of incident. Though P.W. 2 has
alleged in his chief-examination about his witnessing the
fact of taking the deceased Uppakanthamma from her
house, he did not give names of A-1, A.7, A.13, A.34 and
A.37 and A.54. Though P.W. 3 alleged that A-9 beat his ,_
deceased wife with a stick on her head and she sustained ~
F
bleeding injury and that A. 71 sprinkled chilli powder on it.
p_.W. 2 did not whisper about it in his entire evidence. P.W.
2 has deposed that A.13, A.20 and A.65 brought kerosene
drum from the 'house of A.19 and that A.1 O sprinkled
kerosene on the deceased persons but P.W. 3 has given
G the names of the accused persons noted above as to have
brought the kerosene drum and that A.13 poured kerosene ,.. .,.
on the deceased. Though P.W. 3 has stated that A.17
supervised the whole affair, P.W. 2 did not state about it.
These are material contradictions in the evidence of P.Ws.
H
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 635
HIGH COURT OF AP. [RM. LODHA, J.]
2 and 3 going to very root of the case ......... A
~
j
As per the evidence of P.W. 3, he was with his
deceased wife Appakanthamma at the scene of incident
till she was shifted to MGM Hospital, Warangal for
treatment and that although she was conscious and did not
give names of the persons who poured kerosene on her B
body and set on fire. Evidently, she did not give names of
any of the accused persons as responsible for causing bum
injuries to her in her dying declaration dt. 3.8.2k vide Ex.
P. 36."
c
16. As regards PW-4 who is son of D-3 and D-4, the Trial
Court found his evidence self-contradictory and also doubted
his witnessing the incident. After scanning his evidence, the Trial
Court gave the following reasons in not accepting the evidence
of PW-4: D

y
"P.W. 4 is son of deceased K. Yellaiah and K.
Rajamma. His evidence is self-contradictory because
during his chief-examination he has deposed that he saw
A.1, A.5, A.7, A.8, A.10 to A.15, A.17 and A. 41 while
beating his parents but in his cross-examination, he has E
deposed that by the time, he reached the scene of
incident, his parents were already lying unconscious and
were surrounded by 20 persons. Even at the end of his
chief-examination itself, he has deposed that by the time
" he reached the scene of offence, he found the other F
accused persons, except the accused persons noted
above, were not present there. Admittedly, when his
parents were allegedly taken to the scene of offence
forcibly, they were sleeping in the front portion of the house
whereas PW-4 was sleeping inside the house. This aspect G
creates doubt about his witnessing the incident. As per his
... -4 evidence, he heard a commotion at about 12.30 midnight
but as per the evidence of P.Ws. 2 and 3, the incident
commenced at 9.00 p.m. ·itself, P.W. 4 has alleged that
H
' '
636 SUPREME COURT REPORTS (2009] 15 (ADDL.) S.C.R.

A A.5, A.12 and A.13 only brought kerosene drum from the
house of A.19 which is contradictory to the versions given
by P.Ws. 2 and 3 noted above.

17. Although PW-6 and PW-7 are injured witnesses and,
according to prosecution, they were beaten at the scene of
B
offence by the villagers but in their deposition, they stated that
they went to the scene of occurrence voluntarily. Neither of them
named any of the accused for the injuries sustained by them.
PW-8 is daughter of D-3 and D-4 and she deposed that she
did not witness the incident and came to know about the same
c on the next day through the wife of PW-4. PW-9 deposed that
at midnight he heard the commotion and rushed to the scene
of offence but he returned back to his house after somebody
beat him and. he could not identify as it was dark night.

D 18. The Trial Court, thus, held that PW-5 to PW-9 have not
supported the case of prosecution at all. As a matter of fact
they were declared hostile witnesses by the prosecution.

19. Insofar as High Court is concerned, it accepted the
view of the Trial Court that offence punishable under Section
E 148, IPC is not made out. The High Court affirmed the acquittal
of the accused under Section 148, IPC holding thus :

"Coming to charge No. 1, leveled against accused
1 to 15, 17 to 59 (except accused No. 21) and 62 to 78,
F for the offence punishable under Section 148 l.P.C., we
are of the view that though the act of rioting is made out,
regarding the persons and the weapons of offence said
to have been used by them, there is no evidence about
their presence much less usage of deadly weapons. The
G evidence of P.Ws. 2 to 4 is also totally silent on this. So,
in the absence of main ingredient i.e., the presence of
deadly weapons, the act of the accused, even assuming +-
that the same is made out, cannot be brought into the ambit
of Section 148 l.P.C. Accordingly, the acquittal of the
accused recorded by the trial court for the offence under
H
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 637
HIGH COURT OF A.P. [R.M. LODHA, J.]
Section 148 l.P.C., is confirmed." A
- J
20. With regard to the offence punishable under Section
448, IPC, High Court held that the evidence was lacking as to
who actually trespassed into the houses of the deceased and
~
forcibly dragged them out of their respective house. The High
B
Court, accordingly, affirmed the finding of the Trial Court
acquitting the accused for the offence under Section 448, IPC.

21. However, the High Court held that PW-2 to PW-4 were
reliable being eye-witnesses of truth. The High Court held that
the contradictions in the evidence of PW-2 to PW-4 and the c
evidence of Investigating Officer (PW-20) about the presence
of accused cannot be accepted as the evidence of PW-20 is
liable to be discarded. This opinion was formed by the High
Court by perusal of the statements of PW-2 to PW-4 recorded
under Section 161(3), Cr.P.C. after calling for the case diary D
in exercise of the power of the Court under Section 172(2) of
Code of Criminal Procedure.

22. In the first place, High Court erred in accepting the
evidence of PW-2 to PW-4 without adequately meeting the
E
reasons given by the Trial Court for not accepting their
evidence. Moreover, we considered the evidence of these
witnesses ourselves and we find that the view of the Trial Court
~~
in not accepting the evidence of PW-2, PW-3 and PW-4 cannot
~ be said to be erroneous. Secondly, and more importantly, the
High Court committed a serious error of law in discarding the F
evidence of PW-20 on the basis of case diary summoned in
exercise of power conferred on the Court under Section 172
of the Code.
1"'
23. Section 172 of Code of Criminal Procedure reads thus G
~
-'I
(1) "Every police officer making an investigation under
this Chapter shall day by day enter his proceedings
in the investigation in a diary, setting forth th~ time
H
638 SUPREME COURT REPORTS [2009] 15 (ADDL.) $.C.R.

A at which the information reached him, the time at
,,,._
which he began and closed his investigation, the ~

place, or places visited by him, and a statement of
the circumstances ascertained through his
investigation. ,;
B ~
(2) Any Criminal Court may send for the police diaries
of the case under inquiry or trial in such Court, and
may use such diaries, not as evidence in the case,
but to aid it in such inquiry or trial. ~

c (3) Neither the accused nor his agents shall be entitled
to call for such diaries, nor shall he or they be
entitled to see them merely because they are
referred to by the Court; but, if they are used by the
police officer who made them to refresh his memory,
D or if the Court uses them for the purposes of
contradicting such police officer, the provisions of
Sec. 161 or Sec. 145, as the case may be, of the
Indian Evidence Act, 1872 (1 of 1872) shall apply."

24. A criminal court can use the case diary in the aid of
E any inquiry or trial but not as an evidence. This position is made
clear by Section 172(2) of the Code. Section 172(3) places
restrictions upon the use of case diary by providing that
accused has no right to call for the case diary but if it is used ..._
by the police officer who made the entries for r~freshing his ~
F ...,
memory or if the Court uses it for the purpose of contradicting
such police officer, it will be so done in the manner provided in
Section 161 of the Code and Section 145 of the Evidence Act.
Court's power to consider the case diary is not unfettered. In ...
light of the inhibitions contained in Section 172(2), it is not open JI
G to the Court to place reliance on the case diary as a piece of
evidence directly or indirectly. This Court had an occasion to .,.._ 'f'
consider Section 172 of the Code vis-a-vis Section 145 of the
Evidence Act and Section 162 of the Code in the case of
Mahab.ir Singh v. State of Haryana 2 and it was stated as
H
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 639
HIGH COURT OF AP. [R.M. LODHA, J.)
follows: A
... ).
"14. A reading of the said sub-sections makes the position
clear that the discretion given to the court to use such
diaries is only for aiding the court to decide on a point. It
is made abundantly clear in sub-section (2) itself that the
B'
court is forbidden from using the entries of such diaries
as evidence. What cannot be used as evidence against
the accused cannot be used in any other manner against
I· him. If the court uses the entries in a case diary for
contradicting a police officer it should be done only in the
manner provided in Section 145 of the Evidence Act i.e. c
by giving the author of the statement an opportunity to
explain the contradiction, after his attention is called to that
part of the statement which is intended to be so used for
contradiction. In other words, the power conferred on the
court for perusal of the diary under Ssction 172 of the 0
C0de is not intended for explaining a contradiction which
the defence has winched to the fore through the channel
permitted by law. The interdict contained in Section 162
of the Code, debars the court from using the power under
Section 172 of the Code for the purpose of explaining the E
contradiction."

~
25. The High Court, however, did not keep the aforesaid
~
legal position in mind and erred in placing reliance upon the
evidence of PW-2 to PW-4 by verifying their statements
F
recorded under Section 161 (3) of the Code from the case
diary. It is here that the High Court fell into grave error in using

-
.,.
the statements of PW-2 to PW-4 recorded under section 161(3)
of the Code; particularly for contradicting PW-20 without
affording any opportunity to him to explain the position. The
course adopted by the High Court is impermissible in law as G
-J.: Section 172 of the Code is not meant to be used for the
purpose it has been used by the High Court i.e. to overcome
the contradictions pointed out by the defence. Ought we know
2. c2001) 1 sec 148 H
640 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A what would have been the view of the High Court with regard
to the evidence of PW-2 to PW-4, had it not considered the -\ ...
statements of these witnesses under Section 161(3) of the
Code. As a matter of fact, High Court heavily relied upon the
deposition of PW-2 to PW-4 in upsetting the judgment of
B acquittal passed by the Trial Court. This is what the High Court
held:

"Accused 2, 3, 5, 6, 9, 10, 11, 12, 14, 41and48 were
identified by P.W.2; Accused 1, 2 ,3,5,6, 7, 10, 11, 12, 13,
34 and 37 were identified by P.W.3; Accused 1, 5, 7, 8,
c 10, 11, 12, 13,14, 15, 17, 41 and 48 were identified by
P.W.4; and Accused 1, 2, 3, 5, 6, 7, 8, 9, 10, 11, 12, 13, 1
4, 15, 17, 34, 37, 41 and 48 were commonly identified by
P.Ws. 2 to 4."

D a
26. In our view, as result of aforenoticed error of law,
judgment of the High Court is rendered unsustainable.
'1
27. Another grave illegality vitiating the judgment of the High
Court is conviction of the appellants under Section 302 read
.... with Section 149 IPC even though appellants have been
c:.
acquitted of the offence under Section 148 IPC.

28. All 77 accused, vide charge No. 1, were charged to
the effect that they were members of the unlawful assembly and
in prosecution of the common object of such assembly, to ~
....
F commit the murder of 0-1, D-2, D-3, D-4 and D-5, committed
the offence of rioting by pouring kerosene and thereby
committed an offence punishable under Section 148 IPC vide
~harge No.4, all the accused were charged that they committed
murder by intentionally causing the death of 0-1 to 0-5 and
G thereby committed an offence punishable under Section 302
IPC. The Trial Court held that neither offence under Section 148
IPC nor under Section 302 IPC was established against the ~ ~

accused beyond any reasonable doubt. The High Court
affirmed the finding of the Trial Court about the acquittal of the
H appellants under Section 148 IPC but convicted them for the

I :::•
MD. ANKOOS & ORS. v. THE PUBLIC PROSECUTOR, 641
HIGH COURT OF AP. [RM. LODHA, J.]

.... offence punishable under Section 302 read with Section 149 A
;
~, IPC without their being any charge to this effect. Section 149
IPC creates constructive liability i.e. a person who is a member
of the unlawful assembly is made guilty of the offence
committed by another member of the same assembly in the
circumstances mentioned in the Section, although he may have B
had no intention to commit that offence and had done no overt
act. except his presence in the assembly and sharing the
common object of that assembly. The legal position is also fairly
well settled that because of a mere defect in language or in the
narration or in form of the charge, the conviction would not be c
rendered bad if accused has not been affected thereby. But in
a case such as the present one where the appellants have been
expressly charged for the offence punishable under Section 148
IPC and have been acquitted thereunder, they cannot be legally
convicted for the offence punishable under Section 302 read
D
with Section 149 IPC. It is so because the offence of rioting
~ must occur when members are charged with murder as the
common object of the unlawful assembly. Section 148 IPC
creates liability on persons armed with deadly weapons and
is a distinct offence and there is no requirement in law that
members of unlawful assembly have also to be charged under E
Section 148 IPC for legally recording their conviction under
Section 302 read with Section 149 IPC. However, where an
accused is charged under Section 148 IPC and acquitted,
~
conviction of such accused under Section 302 read with
Section 149 IPC could not be legally recorded. We find support F
from a Four Judge Bench decision of this Court in the case of
Mahadev Sharma v. State of Bihaf3 wherein this Court held
thus:

" .............. Of course, if a charge had been framed under
G
.,. s.147 or s.148 and that charge had failed against any of
-I;
the accused then s.149 could not have been used against
him. The area which is common to ss.147 and 149 is the
substratum on which different degrees of liability are built
H
.---

642 SUPREME COURT REPORTS [2009] 15 (ADDL.) S.C.R.

A and there cannot be a conviction with the aid of s.149 when
there is no evidence of such substratum." -\ - (

29. In view of the aforesaid legal position, the appellants
having been acquitted under Section 148 IPC by the Trial Court
as well as the High Court, they could not have been legally
B
convicted by the High Court under Section 302 read with
Section 149 IPC.

30. It is also pertinent to mention that the prosecution came
out with the case that the accused committed house trespass
c by entering into houses of D-1 to D-5 and dragged them out
with an intent to kill. Accordingly, all accused persons were j_
charged under Section 448 IPC but all of them have been
acquitted as prosecution faileu to establish the said offence
against them. This again dislodges the material aspect of the
D prosecution case. Be that as it may, the view of the Trial Court
in passing the judgment of acquittal is a possible view and
cannot be said to be palpably wrong on facts or based on 1
erroneous view of law and, therefore, High Court was not '
justified in interfering with the judgment of acquittal. It is true that
E five persons were done to death in the dead of night in a
ghastly manner and the whole incident is quite ~hocking but in
the absence of cogent and reliable evidence against the
appellants connecting them to crime, view of the Trial Court in ,/'

passing the judgment of acquittal cannot be said to be ~
'

F unjustified.

31. In the result and for the reasons indicated above, the
appeal deserves to be allowed and is allowed. The judgment
of the High Court passed on October 4, 2007 is set aside. The
appellants shall be released forthwith, if not required in any other
G case.

N.J. Appeal allowed. ~
,,.•

•,L