SYED PEDA AOWLIAversusPUBLIC PROSECUTOR, HIGH COURT OF AP., HYDERABAD

                           [2008] 9 S.C.R 1151


                         SYED PEDA AOWLIA                             A
                                    v.
           PUBLIC PROSECUTOR, HIGH COURT OF AP.,
                           HYDERABAD
                (Criminal Appeal No. 1149 of 2001)

                            JUNE 13, 2008                             B

.,.       [DR. ARIJIT PASAYAT AND P.P. NAOLEKAR, JJ.]

           Penal Code, 1860; s. 302 rlw s. 34/Code of Criminal Pro-
      cedure, 1973; s.378 (1) & (3):                                  c
             Murder - Acquittal of accused persons by trial court -
      Affirmed by High Court as against all the accused persons
      except the appellant convicting him for committing the offence
      of murder and sentenced him to undergo imprisonment for
      life - Correctness of - Held: Unless there are compelling and D
      substantial reasons, appellate Court not to interfere with the
      iudgment of acquittal - If two views are possible on the evi-
      dence adduced, one pointing guilt of accused and the other
      to his innocence, the view favourable to accused should be
      adopted by the Court - In the instant case, High Court did not E
      apply its mind to various aspects and the position in law relat-
      ing to scope for interference in appeal against an order of ac-
      quittal - Hence, the impugned order is set aside and the mat-
      ter is remitted to High Court for consideration afresh - Appeal
      against acquittal - Interference with, by Appellate Court.       F
            Appellant and four accused persons were tried for
      committing the offence of murder u/s.302 r/w s.34 IPC.
      Trial Court found that the prosecution had failed to es-
      tablish the case against the accused persons and directed
      acquittal of all the accused persons. On appeal, High G
      Court affirmed acquittal of all the accused persons ex-
.,.   cept the appellant and found him guilty for committing
      the offence of murder punishable u/s.302 r/w.s.34 IPC and
      sentenced him to undergo imprisonment for life. Hence
                                  1151                          H
    1152       SUPREME COURT REPORTS             [2008) 9 S.C.R.


A the present appeal.                                                      t

         Accused-appellant contended that the High Court
    has not discussed the evidence of the witnesses and has
    come to abrupt conclusions about the acceptability of the
    evidence.                                      .
B
         Respondent-State submitted that though the High
    Court has not analysed the evidence in detail, its conclu-           ~

    sions are not erroneous.
           Dismissing the appeal, the Court
c
        HELD: 1.1 The appeal filed by the State has been dis-
  posed of by the High Court in perfunctory manner. In a case
  where admissible evidence is ignored, a duty is cast upon
  the appellate Court to re-appreciate the evidence where
  the accused has been acquitted, for the purpose of ascer-
D
  taining as to whether any of the accused really committed            ~
  any offence or not. (Para 4 and 5) [1154-E,H; 1155-A]
        1.2 There is no embargo on the appellate Court review-
  ing the evidence upon which an order of acquittal is based.
E Generally, the order of acquittal shall not be interfered with
  because the presumption of innocence of the accused is.
  further strengthened by acquittal. (Para 5) [1154-E & F]
        1.3 The golden thread which runs through the web
  of administration of justice in criminal cases is that if two          ~
F 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. The paramount consideration of the
  Court is to ensure that miscarriage of justice is prevented.
G A miscarriage of justice which may arise from acquittal of
  the guilty is no less than from the conviction of an inno-
  cent. (Para - 5) [1154-F,G & H]
                                                                   ..,
        1.4 The principle to be followed by appellate Court
H
    considering the appeal against the judgment of acquittal       .
                  SYED PEDA AOWLIA v. THE PUBLIC PROSECUTOR, 1153
              HIGH COURT OF A.P., HYDERABAD [DR. ARIJIT PASAYAT, J]

              is to interfere only when there are compelling and substan- A
              tial reasons for doing so. If the impugned judgment is
              clearly unreasonable and relevant and convincing materi-
              als have been unjustifiably eliminated in the process, it is a
              compelling reason for interference. (Para - 5) [1155-B & C]
                   Shivaji Sahabrao Bobade & Anr vs. State of Maharashtra B
~

'             AIR (1973) SC 2622; Ramesh Babula! Doshi vs. State of
    -f        Gujarat (1996) 4 Supreme 167; Jaswant Singh vs. State of
              Haryana (2000) 3 Supreme 320; Raj Kishore Jha vs. State of
              Bihar & Ors. (2003) 7 Supreme 152; State of Punjab vs.
              Kamai! Singh (2003) 5 Supreme 508; State of Punjab vs.           c
              Pohla Singh & Anr. (2003) 7 Supreme 17 and VN. Ratheesh
              vs. State of Kera/a (2006) 10 SCC 617 - relied on.
                    2. In the instant case, the High Court has not applied
              its mind to the various aspects and the position in law
                                                                               D
     )--
              relating to the scope for interference in appeal against an
              order of acquittal. In the circumstances, the impugned
              order is set aside and the matter is remitted to the High
              Court for fresh consideration in accordance with law only
              in respect of appellant. (Para - 7) [1156-H; 1157-A]
                                                                               E
                   CRIMINALAPPELLATE JURISDICTION: Criminal Appeal
              No. 1149 of 2001
                    From the final Judgment and Order dated 17.8.2001 of
              the High Court of Judicature, Andhra Pradesh at Hyderabad in
              Crl. Appeal No. 193711999                                        F

                   G. Ramakrishna Prasad for the Appellant.
                   D. Bharathi Reddy for the Respondent.
                   The Judgment of the Court was delivered by
                                                                               G
                    Dr. ARIJIT PASAYAT, J. 1. Challenge in this appeal is to
              the judgment of a Division Bench of the Andhra Pradesh High
         ..   Court allowing the appeal filed by the State so far as present
              appellant is concerned while upholding the acquittal of other
              accused persons. The learned IV Additional Sessions Judge,       H
    1154       SUPREME COURT REPORTS                     (2008) 9 S.C.R

                                                                              t
A Guntur had directed acquittal of all the five accused persons
  who faced trial for commission of offence punishable under
  Section 302 and Section 302 read with Section 34 of the In-
  dian Penal Code, 1860 (in short the 'IPC'). The trial Court on
  analyzing the evidence had found that the prosecution has not
B been able to establish its accusations and accordingly directed
  acquittal. The State filed an appeal in terms of Section 378 (1)                 ,'-
  and (3) of the Code of Criminal Procedure, 1973 (in short the               t-

  'Code'). The High Court by the impugned order allowed the
  appeal so far as the present appellant is concerned while dis-
c missing the appeal of the State so far as the other accused
  persons are concerned.

       2. Learned counsel for the appellant submitted that the
  High Court has not discussed the evidence of the witnesses
  and has come to abrupt conclusions about the acceptability of
D the evidence.                                                               ..
         3. Learned counsel for the respondent-State on the other
    hand submitted that though the High Court has not analysed the
    evidence in detail, its conclusions are not erroneous.

E         4. It is not necessary to go into the factual position in detail
    as we find that the appeal filed by the State has been disposed
    of in perfunctory manner.

         5. There is no embargo on the appellate Court reviewing
  the evidence upon which an order of acquittal is based. Gener-
F ally, the order of acquittal shall not be interfered with because
  the presumption of innocence of the accused is further strength-
  ened by acquittal. The golden thread which runs through the
  web of administration of justice in criminal cases is that if two
  views are possible on the evidence adduced in the case, one
G pointing to the guilt of the accused and the other to his inno-
  cence, the view which is favourable to the accused should be
  adopted. The paramount consideration of the Court is to en-                ..,
  sure that miscarriage of justice is prevented. A miscarriage of
  justice which may arise from acquittal of the guilty is no less
H than from the conviction of an innocent. In a case where admis-
    SYED PEDA AOWLIA v. THE PUBLIC PROSECUTOR, 1155
HIGH COURT OF A.P., HYDERABAD [DR. ARIJIT PASAYAT, J]

sible evidence is ignored, a duty is cast upon the appellate Court A
to re-appreciate the evidence where the accused has been
acquitted, for the purpose of ascertaining as to whether any of
the accused really committed any offence or not. [See Bhagwan
Singh and Ors. v. State of Madhya Pradesh (2002 (2) Supreme
567)]. The principle to be followed by appellate Court consider- B
ing the appeal against the judgment of acquittal is to interfere
only when there are compelling and substantial reasons for doing
so. If the impugned judgment is clearly unreasonable and rel-
evant and convincing materials have been unjustifiably elimi-
nated in the process, it is a compelling reason for interference. c
These aspects were highlighted by this Court in Shivaji
Sahabrao Bobade and Anr. v. State of Maharashtra (AIR 1973
SC 2622), Ramesh Babula/ Doshi v. State of Gujarat (1996
(4) Supreme 167), Jaswant Singh v. State of Haryana (2000
(3) Supreme 320), Raj Kishore Jha v. State of Bihar and Ors.
(2003 (7) Supreme 152), State of Punjab v. Kamai/ Singh (2003 D
(5) Supreme 508, State of Punjab v. Pohla Singh and Anr.
(2003 (7) Supreme 17) and V.N. Ratheesh v. State of Kera/a ·-..
(2006 (1 O) sec 617).

     6. The conclusions of the High Court read as follows:        E
     "It is true that there is some delay in reaching a copy of FIR
     to the residence of the Magistrate, but it cannot be said
     that it is inordinate delay. According to the version of PW-
     1 and also the version of PWs 14 and 15 the first
     information was given by PW-1 at about 10.30 a.m. and F
     on the strength of which PW-14 registered the case against
     the accused. The evidence of PW-15 shows that he got a
     copy of FIR at about 1.30 p.m. but he did not note down
     the timing on the copy of FIR on receipt of the same. But,
     it has been a positive case of PW-15 that he received G
     copy of FIR at 1.30 p.m. Once this version is accepted,
     then the defence version that the FIR was given at 8.30
     p.m. has to be rejected.
     Mr. Movva Chandra Sekhar Rao, learned counsel
                                                                  H
                SUPREME~ coui:n r~EF'ORTS                  [2GOS] 9 S.C.R
    11.56


A           appea ·ing for the appellants relied upon a ruling reported
            in Mcharaj Singh v. State of U.P (1994 (5\ SCC 188), in
            which the Apex court had iaid down that ir,or-d:nate delay
            in filing the first infurrnation has to be explained. We have
            no hesitation in accepting the above said p1oposition. We
B           have come to the conciusion that PW-1 had given the first
            information report at the Police Station eit about 10.30
            a.m., immediately after removing the injured to the Hospital
            at Gurtur. if there is some delay in sending rhe copy of FIR
            to the Magistrate. then straight away a conclusion cannot
C           be drawn that the FIR was not laid at the time as spoken
            to by PW-1.

            It is not the case of the defence that there is political rivalry
            between the accused party and the deceased party.
            Therefore, this Court finds no reason for PWs 1 to 3 and
D           5 to concoct a story against A.1. Under these
            circumstances, we have no hesitation in holding that the
            prosecution was able to prove that A-1 was responsible
            for causing the death of 1he deceased and he is guilty of
            the offence punishable under Section 302 of the Indian
E           Penal Code.

            The role attributed to A-2 to A-5 in this case by the
            prosecution witnesses is very minor. Only their presence
            was secured through their evidence. They had not
            participated in killing the deceased and, therefore, this
F           Court is of a considered view that A-2 to A-5 cannot oe
            held responsible for causing the death of the deceased.
            Under these circumstances, we pass the following order:

                  The appeal filed by the State is allowed as far as A-
                  1 is concerned. A-1 is convicted and sentenced to
G
                  suffer imprisonment for life and he is directed to
                  surrender the learned IV Additional Sessions Judge,
                  Guntur, forthwith. The appeal filed by the State against
                                                                                .,
                  A-2 to A-5 stands dismissed."

H           7. We find that the High Court has not applied its mind to
        SYED PEDA AOWLIA v. THE PUBLIC PROSECUTOR, 1157
    HIGH COURT OF A.P., HYDERABAD [DR. ARIJIT PASAYAT, J)

    the various aspects and the position in law as highlighted above    A
    relating to the scope for interference in appeal against an order
    of acquittal. In the circumstances, we set aside the impugned
    order and remit the matter to the High Court for fresh consider-
    ation in accordance with law only in respect of appellant. State
    has not questioned, it is to be noted, the High Court's order       B
    upholding acquittal of A2 to A5 as was done by the trial Court.
         8. The appeal is allowed to the aforesaid extent.
    S.K.S.                                      Appeal Dismissed.




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