AJITSINGH THAKURSINGH & ANR. versus STATE OF GUJARAT

AJITSINGH THAKURS!NGH & ANR.

STATE OF GUJARAT January 9, 1981 [R. S. SARKARIA AND R. S. PATHAK, JJ.]

Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970 -S. 2 & Indian Penal Code, S. 302 High Court setting aside order of acquillal of SeS&'iona Cpurt -Approach to be adopted by High Court in exercising appel-late powera -High Court to consider whether integrality of evidence alone can ensure that accused are guilty.

limitation Act 1963, Art, 114 & S. 5-De/ay in filing, appeal against order of acquittal-Condonation of-Any event or circu1nstance arising after expiry of li111itation-whether can constitute 'sufficient cause'.

The two appellants who were father 311.ld son alongwith another son, who was acquitted were charged with the offence of committing the murder of tho deceesed and of causing injuries to his two brothers all of whom were residing in chaw! belonging to the first appellant. The prosecution alleged that on the fateful day the appellants demanded payment of rent from the deceased and refuse! to make immediate payment infuriated the second appellant who infilcted two kirpan blows on him. When the deceased started running to the room of W. brothers he wa• pursued and further kirpan blows were infiictecl on him. His brothers were also atta.cked by the three accused. After the incident all the accused ran away from the place leaving their bicycles behind. The decea&ed succumbed to his injuries in the hospital and one of his brothers was admitted. as an indoor patient.

As there were

The three a<:Cused were tried by the Addi. Sessions Judge. As there were n1aterial contradiction& in the 'eye witnesses' account of the sequence of events, the exact places where tho blows were struck, and tho role played by each aC<:UICd and the seizure of four bicycleo by the police at the scene being incon-sittent with the prosecution case that threo persons, the accused were involved rthe Seooions Judge held tho evidence to bo untrustworthy and being of opinion that it was unsafe and hazardous to convict the accused on such. testimony he gave them the benefit of doubt and acquitted them.

No appeal was filed at first becau'° the State Government saw no cMe on the merita for an appeal. However, in revision petition filed by one of the brothers of the deceased the High Court declared that the case waa fit case where the State Government should file an appeal. Thereafter, the State Government filed an appeal, in the High Court and prayed for condonation of the delay in filing the appeal. The High Court condoned the delay considered the appeal on its merits, and allowed it against the two appellants. Tho appeal agiilnst the acquittal _of the third ru:cnsed wos dismissed.

Allowing the appeal to this Court:

filing the [512 F-H]

HEID: l(i) There was no sufficient cause for the State not filing appeal within time, and tho High Court erre<l' in condoning the delay.

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(ii) party is entitled to wait until the last day of limitation fo" filing an appeal. But when it allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it was not possible to file the appeal within time. No event or circumstance arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of Limitaticn which may further delay the filing of the appeal. But that the limitation has been allowe<l to expire without the appeal being filed must be traced to cause arlsin!i within the period of limitation. [512 GJ

2(i) The High Court erred in interfering with the judgment of the trial court. [515 DJ

(ii) The approach to be adopted by the High Court v1hen exercising its appeUate powers in case of appeal against an order of acquittal has been defined in long line of cases. As long o.go as 1934, the Privy Council declared that the High Court must give proper weight and com.ideration to "such matters as (1) the view of the trial judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, presun1ption 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 finding of fact arrived at by Judge who had the advantage of seeing the witnesses". The approach has been endorsed by this Court repeatedly and in very recent decision it has been held that if the main grounds on which the Court below has based its order acquittin~ the accused, are reasonable and plausible, and cannot be entirely and effectively dislodged or demolished, the High Court should not disturb the acquittal. [514D·F; HJ

WarTc11 Ducane S1nith v. Tlie King A.I.R. 1934 P.C. 22:[7 ]& Ganes!J 'Bhavan Patel & Anr. v. State of Maharashtra [1979] 2 S.C.R. 94, referred to.

(iii) The High Court after specifically referring to tl1e aforesaid legal position, overlooked the limitations imposed on it and em.barked oc. course not warranted by law. It took into particular regard a, few considerations which seemed to it to assume importance and has concentrated on sonie of the material only. omitting to consider in the process that the integrality of the evidence alone can ensure whether the accused are guilty. [515 A, C]

In the instant case the High Court referred to the recovery of blood· stained slipper and diary from the scene of the offence, and inferred that they belooged to the first appellant. This connection hos not been properly established. The papers found in the diary do not necessarily show that that the diary belonged to him. Nor is there sufficient proof that tbe slipper i3 his.

[515 BJ

3 The trial court wrote careful judgment, exhaustively considering all the evidence and on painstaking analysis reached conclusions which are pre-eminently. reasonable and support the order of acquittal. [513 BJ CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No. 329 of 1979.

From the Judgment and Order dated 9-4-1979 of the Gnjarat High Court in Criminal Appeal No. 270/76.

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Rajandra Prasad Singh, M/s. K. G. Vakharia, P. H. Parekh and Raian Karanjawala for the Appellants.

T. U. Mehta, M. N. Shroff and Himantika Wahi for the Respondent.

The Judgment of the Court was delivered by

PATHAK, J. This appeal, preferred under the Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970, is directed against the judgment and order of the High Court of Gujarat setting aside the judgment and order of acquittal passed by the trial court and convicting and sentencing the appellants for offences under 8. 302 read with s. 34, Indian Penal Code, and under s. 326 read with s. 34 of the Code. The appellants, Ajit Singh and Balwant Singh, are father and son. Another son is Mohan Singh. All three were charged with the mur-D der of Manilal and with causing injuries to Parmabhtl, Bhulabhai and Natwarlal. The prosecution case is that Manila!, Bhufabhai and Bhikabhai wcro three brothers residing in chaw! belonging to the appellant Ajit Singh, that on 9th April, 1975 Manila!' drew his salary from the factory where he worked and at about 6.45 p.m. on returning to his room in the chaw! he was met by the appellants and Mohan Singh. They demanded payment of rent but Manila! said he would pay it only on the next day. His refusal to make immediate payment is alleged to have infuriated Balwant Singh who, it is said, inflicted two kirpan blows on him. Upon \his Manila! started rnnning away, pursued by the three accused, and headed towards the room of Parmabhai. Further kirpan blows were inflicted on him there by the appellants. Parrnabhai, who had emerged from !us room, was also attacked and given kirpan blow. Manila!, meanwhile, turned and entered the house of Shanabhai. Ajit Singh is alleged to have struck him further blows there in consequence of which he fell down. Bhulabhai, who arrived on the scene, was also struck kirpan blow. Mohan Singh is alleged to have wielded bamboo stick and hit Nat-G warlal on the head with it All three accused are said to have run away from the place then, leaving their bicycles behind. Manila! was removed to the hospital and declared dead. Parmabhai was admitted as an indoor patient.

Shanabhai telephoned the police control room and informed them If of the incident, and ~he Gomtipur Police Station recorded complaint made by Bhulabhai.

[1981] 2 S.C.R.

The three accused were tried by the learned Additional Sessions Judge, Ahmedabad (Rural), who after considering the evidence on tha record acquitted the accused by his judgment and order dated· 15th October, 1975.

On 26th April, 1976 the State filed an appeal in the High Court and prayed for condonation of the delay in filing it. 'Ih~ High Court condoned the delay, considered the appeal on its merits and allowed it against Ajit Singh and Balwant Singh. They were convicted under s. 302 read with s. 34 of the Code and sentenced to imprisonment for life. They were also convicted under s. 3 26 read with s. 34 of the Code but no separate sentence was passed thereunder. The appeal against the acquittal of Mohan Singh was dismissed.

At the outset, it is urged by learned counsel for \ht appellants that the High Court erred in condoning the delay in filing the appeal, and the appeal should have been dismissed as barred by limitation. We have examined the facts carefully. It appears that initially the State Government took decision not to me an appeal and it allowed the period of limitation to lapse. Subsequently, on certain observations made by the High Court while considering revision petition by Bhulabhai that it was fit case ·where the State Government should . file an appeal and on notice being issued by the High Court to the State Government in the matter, the appeal was filed. It was filed three months after limitation had expired. faint attempt was made to show that when the initial decision was taken not to file an appeal all the papers had not been considered by the department concerned, but we are not impressed by that allegation. The truth appears to be that the appeal was not filed at first because the State Government saw no case on the merits for an appeal, and it was filed only because the High Court had observed -and that was long aEter limitation had expired -that the case was fit for appeal by the State Govern-ment. Now, it is true that party is entitled to wait until the last day of limitation for filing an appeal. But when 1t allows limitation to expire and pleads sufficient cause for not filing the appeal earlier, the sufficient cause must establish that because of some event or circumstance arising before limitation expired it· was not possible to file the appeal within time. No event or circumstance. arising after the expiry of limitation can constitute such sufficient cause. There may be events or circumstances subsequent to the expiry of limitation which may further delay the filing. of the appeal. But that the limi-tation has been allowed to expire without the appeal being filed must be traced to cause arising within the period of limitation. In the present case, there was no such cause, and the High Comt erred in condoning the delay.

It is pointed out that the High Court could have sent for the recerd in the exercise of its revisional jurisdiction and examined the case. That is quite another matter and -raises other questions. We are concerned here with the question whether the delay in filing the appeal could have been condoned.

But quite besides this, there was also no merit in the appeal filed before the High Court. The trial court wrote careful judgment, exhaustively considering all the evidence and on painstaking analysis .reached conclusions which, in our opinion, are pre-eminently rea­sonable and support the order of acquittal. It found that the evidence � did not establish that the injury suffered by Bhulabhai could have · , resulted from kirpan, that the panch witnesses to the recovery of the two kirpans did not support the prosecution, that of the six eye­witnesses one of them, Ramiben, widow of Manila!, was not present on the scene at all, that the eye witnesses had mdulged in palpable falsehood in attempting to implicate Mohan Singh when plainly he was not there (the State appeal against his acquittal was dismissed by the High Court) , that there were material contradictions between the different eye-witnesses concerning the sequence of events, the exact places where the blows were struck, and the role played by each accused, that the information given by one eye witness, Shanabhai, to the police control room mentioned merely !hat four or five "sar­darjis" had come to the chaw! and had injured two persons with knife, and although admittedly Shanabhai had known the accused by name for the last four or five years he did not mention their names in that report. It is also in evidence that it wa& already dark when the incident took place and there were no municipal lights within the · limits of the chaw!. The trial court has further adverted to the cir­cumstance that four bicycles were seized by the pnlice at the scene, which is inconsistent with the prosecution case that three persons, the accused, were involved. As regards the complaint filed by Bhula­bhai, the trial court has found that it could not be admitted in evidence under s. 154, Code of Criminal Procedure, and there was ample material to show that the eye-witnesses had plenty of time to confer with one another before the complaint w11s drawn up. The trial court also adverted to the fact that the police did nct record the statement of the remaining eye-witnesses that very night. The Prose- . cuting Inspector also admitted in cross-examination that during the investigation all the eye-witnesses came forward with "stereotype" statements. One other significant fact remains. According to the evidence the incident was witnessed by several olher people, but not n independent witness has come forward to support the prose­single cution. The eye-witnesses produced are either related or members .

of the same commuuity; members of other communities also lived in the chaw! and admittedly were on cordial terms with the complainant Bhulabhai and the other witnesses. The trial court pointed out that the eye-witnesses were, already prior to the incident, extremely hostile to the accused. There was running war between them in the matter of payment of rent, and disputes had arisen concerning ownership of the property and criminal proceedings had been taken. At this point, it is relevant to note that Ajit Singh used to employ one Shivram for collect-ing rents. In all the circumstances, the trial court observed that when the witnesses could not identify \he four or five Sardarjis who had come to the chaw!, they put their heads together and decided to involve Ajit Singh and his two sons. Holding that the <evidence was unlrustworthy and it would be highly unsafe and hazardous to con-vict the accused on such testimony the trial court gave them the benefit of doubt and acquitted them. t<·We may observe that the High Court had befme it an appeal against an order of acquittal. The approach to be adopted by the High Court when exercising its appellate powers in such case has been defined in long line of cases. As long ago as Warren Ducane Smith v. The King(I) the Privy Council declared that the High Court must give proper weight and consideration to "such matters as ( 1) the view of the trial judfil' as to the credibility of the witnesses; (2) the presumptioh of innocence in favour of the accused, presump-tion certainlf 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 finding of fact arrived at by Judge who had the advantage of seeing the witnesses." The approach has been endorsed by this Court repeatc.Jly, and in very recent decision, Ganesh Bhavan Patel & Anr. v. Statl of Maha-rashtra(') to which one of us (Sarkaria, J.) was party. it was also observed :

"Where two reasonable conc_lusions can be drawn on the evidence on record, the High Court stou!d as matter of judicial caution, refr:iin from interfering with the order of acquittal recorded by the Coun below. In other words, if the main grounds on which !he Conrt be[1]ow has based its order acquitting the accused, are reasonable and plausible, and cannot be entirely and effectively dislouged or demo-lished, the High Court should not disturb the acquittal."

(I) A.I.R. 1934 P.C. 227.

(2) [1979] 2 SCR. 94.

'fhe legal position is well settled and, indeed, has been adverted to by the High Court. But after specifically referring to it the High Court appears to have overlooked the limitations imposed on it and has embarked on course not warranted by law. It has taken into particular regard few considerations whi<;h seemed to it to assume importance. It has referred to the recovery of bloodstained slipper and diary from the scene of the offence, and has inferred that they belong to Ajit Singh. We are not satisfied that the connection has been truly established. The papers found in the diary do not neces-sarily show that the diary belongs to him. Nor is there sufficient proof that the slipper is his. The High Court has concentrated on some of the material only, omitting to consider in the process that the integra!ity of the evidence alone can ensure whether the accused are guilty.

We are satisfied that the High Court erred in interfering with the judgment of the trial court. The appeal must, therefore, be allowed, the judgment and order of the High Court set aside and the judgment and order of the t_rial court restored.

These are the reasons which persuaded us to make the order disposing of the appeal.

Appeal allowed.