# JAFARUDHEEN & ORS v. STATE OF KERALA

- **Citation:** [2022] 5 S.C.R. 721
- **Court:** Supreme Court of India
- **Decided:** 2022-04-22
- **Case number:** Criminal Appeal Nos. 430-431 of 2015
- **Bench:** Sanjay Kishan Kaul, M. M. Sundresh
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/jafarudheen-ors-v-state-of-kerala-36447
- **Pages:** 39

## Headnote

Code of Criminal Procedure, 1973: s.378: Appeal against
acquittal - Scope of - Appellate Court has to consider whether
trial court's view can be termed as a possible one, particularly when
evidence on record has been analyzed - An order of acquittal adds
up to the presumption of innocence in favour of the accused -
Double presumption that enures in favour of the accused has to be
disturbed only by thorough scrutiny on the accepted legal
parameters - Thus, appellate court has to be relatively slow in
reversing the order of trial court rendering acquittal.
Criminal Law: FIR: Delay in sending FIR to Magistrate -
FIR starts the process of investigation by setting criminal law into
motion - Investigation officer has to keep the magistrate in the loop
of his ongoing investigation - Such an information is expected to
reach the jurisdictional magistrate at the earliest point of time -
Delay introduces coloured version, exaggerated account or
concocted story as a result of deliberation and consultation -
However, a mere delay by itself cannot be a sole factor in rejecting
the prosecution's case.
Code of Criminal Procedure, 1973: s.161-Investigating
Officer is expected to kick start his investigation immediately after
registration of a cognizable offense - An inordinate and unexplained
delay may be fatal to the prosecution's case but only to be considered
by the Court, on the facts of each case - However, non-examination
of the witness despite being available may call for an explanation
from the Investigating Officer.
Evidence Act: s.27: Fact discovered - Onus - Admissibility
under s.27 is relatable to the information pertaining to a fact
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discovered - It facilitates proof of a fact discovered in consequence
of information received from a person in custody, accused of an
offense - The onus is on the prosecution to prove the fact discovered
from the information obtained from the accused - One cannot lose
sight of the fact that the prosecution may at times take advantage of
the custody of the accused, by other means - The Court will have to
be conscious of the witness's credibility and the other evidence
produced when dealing with a recovery under s.27 of the Evidence
Act.
Criminal Law - In the instant case, accused, 16 in numbers,
assembled, hatched a conspiracy and thereafter attacked deceased
to take out his life - Trial Court convicted A-2, A-4, A-5, A-8, and
A-9 under IPC and acquitted A-10 to A-16 by considering the
evidences on record - High Court confirmed the order of acquittal
against A-14 to A-16 and confirmed the conviction against the other
accused, namely, A-2, A-4, A-5, A-8, and A-9, but it overturned the
order of acquittal of A-10, A-11, A-12, and A-13 granted by trial
court on the premise that the witnesses who spoke about these
accused's presence failed to consider the import of s.149 IPC - On
appeal, held: Trial court has taken a possible view that the evidence
rendered by the eyewitnesses does not satisfy the Court qua the
presence of A-10 to A-13 - As trial court had the advantage of
seeing the witnesses as they deposed, the appellate forum cannot
change the conclusion arrived at thereafter by substituting its views
- High Court has adopted the principle of preponderance of
probability as could be applicable to the civil cases to the case on
hand when more scrutiny is warranted for reversing an order of
acquittal - For the recovery made from A-12 also, there was no
confirmation from prosecution witnesses - The blood-stained dress
was stated to have been recovered from A-13 from the hospital - It
is not known as to how the said dress reached the hospital, and
there was no evidence forthcoming on that count, apart from
correlating the said dress to that of the accused - There seemed to
be a structured pattern in the recovery of A-10 to A-13 - Conviction
rendered by High Court against A-10 to A-13 stands set aside -
Acquittal by trial court restored.
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## Text

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[2022] 5 S.C.R. 721
721
JAFARUDHEEN & ORS.
v.
STATE OF KERALA
(Criminal Appeal Nos. 430-431 of 2015)
APRIL 22, 2022
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
Code of Criminal Procedure, 1973: s.378: Appeal against
acquittal - Scope of - Appellate Court has to consider whether
trial court's view can be termed as a possible one, particularly when
evidence on record has been analyzed - An order of acquittal adds
up to the presumption of innocence in favour of the accused -
Double presumption that enures in favour of the accused has to be
disturbed only by thorough scrutiny on the accepted legal
parameters - Thus, appellate court has to be relatively slow in
reversing the order of trial court rendering acquittal.
Criminal Law: FIR: Delay in sending FIR to Magistrate -
FIR starts the process of investigation by setting criminal law into
motion - Investigation officer has to keep the magistrate in the loop
of his ongoing investigation - Such an information is expected to
reach the jurisdictional magistrate at the earliest point of time -
Delay introduces coloured version, exaggerated account or
concocted story as a result of deliberation and consultation -
However, a mere delay by itself cannot be a sole factor in rejecting
the prosecution's case.
Code of Criminal Procedure, 1973: s.161-Investigating
Officer is expected to kick start his investigation immediately after
registration of a cognizable offense - An inordinate and unexplained
delay may be fatal to the prosecution's case but only to be considered
by the Court, on the facts of each case - However, non-examination
of the witness despite being available may call for an explanation
from the Investigating Officer.
Evidence Act: s.27: Fact discovered - Onus - Admissibility
under s.27 is relatable to the information pertaining to a fact
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discovered - It facilitates proof of a fact discovered in consequence
of information received from a person in custody, accused of an
offense - The onus is on the prosecution to prove the fact discovered
from the information obtained from the accused - One cannot lose
sight of the fact that the prosecution may at times take advantage of
the custody of the accused, by other means - The Court will have to
be conscious of the witness's credibility and the other evidence
produced when dealing with a recovery under s.27 of the Evidence
Act.
Criminal Law - In the instant case, accused, 16 in numbers,
assembled, hatched a conspiracy and thereafter attacked deceased
to take out his life - Trial Court convicted A-2, A-4, A-5, A-8, and
A-9 under IPC and acquitted A-10 to A-16 by considering the
evidences on record - High Court confirmed the order of acquittal
against A-14 to A-16 and confirmed the conviction against the other
accused, namely, A-2, A-4, A-5, A-8, and A-9, but it overturned the
order of acquittal of A-10, A-11, A-12, and A-13 granted by trial
court on the premise that the witnesses who spoke about these
accused's presence failed to consider the import of s.149 IPC - On
appeal, held: Trial court has taken a possible view that the evidence
rendered by the eyewitnesses does not satisfy the Court qua the
presence of A-10 to A-13 - As trial court had the advantage of
seeing the witnesses as they deposed, the appellate forum cannot
change the conclusion arrived at thereafter by substituting its views
- High Court has adopted the principle of preponderance of
probability as could be applicable to the civil cases to the case on
hand when more scrutiny is warranted for reversing an order of
acquittal - For the recovery made from A-12 also, there was no
confirmation from prosecution witnesses - The blood-stained dress
was stated to have been recovered from A-13 from the hospital - It
is not known as to how the said dress reached the hospital, and
there was no evidence forthcoming on that count, apart from
correlating the said dress to that of the accused - There seemed to
be a structured pattern in the recovery of A-10 to A-13 - Conviction
rendered by High Court against A-10 to A-13 stands set aside -
Acquittal by trial court restored.
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Disposing of the appeals, the Court
HELD: 1. While dealing with an appeal against acquittal by
invoking Section 378 of the Cr.PC, the Appellate Court has to
consider whether the Trial Court's view can be termed as a
possible one, particularly when evidence on record has been
analyzed. The reason is that an order of acquittal adds up to the
presumption of innocence in favour of the accused. Thus, the
Appellate Court has to be relatively slow in reversing the order
of the Trial Court rendering acquittal. Therefore, the presumption
in favour of the accused does not get weakened but only
strengthened. Such a double presumption that enures in favour
of the accused has to be disturbed only by thorough scrutiny on
the accepted legal parameters. [Para 25][733-E-F]
Mohan @ Srinivas @ Seena @Tailor Seena v. State of
Karnataka
2021 SCC OnLine SC 1233;
N.
Vijayakumar v. State of T.N. (2021) 3 SCC 687 - relied
on.
2. The jurisdictional Magistrate plays a pivotal role during
the investigation process. It is meant to make the investigation
just and fair. The Investigating Officer is to keep the Magistrate
in the loop of his ongoing investigation. The object is to avoid a
possible foul play. The Magistrate has a role to play under Section
159 of Cr.PC. The first information report in a criminal case starts
the process of investigation by letting the criminal law into motion.
It is certainly a vital and valuable aspect of evidence to corroborate
the oral evidence. Therefore, it is imperative that such an
information is expected to reach the jurisdictional Magistrate at
the earliest point of time to avoid any possible ante-dating or
ante-timing leading to the insertion of materials meant to convict
the accused contrary to the truth and on account of such a delay
may also not only gets bereft of the advantage of spontaneity,
there is also a danger creeping in by the introduction of a coloured
version, exaggerated account or concocted story as a result of
deliberation and consultation. However, a mere delay by itself
cannot be a sole factor in rejecting the prosecution's case arrived
at after due investigation. Ultimately, it is for the Court concerned
JAFARUDHEEN & ORS. v. STATE OF KERALA
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to take a call. Such a view is expected to be taken after considering
the relevant materials. [Paras 26, 27][744-C-F]
Shivlal v. State of Chhattisgarh (2011) 9 SCC 561 :
[2011] 11 SCR 429; Rajeevan v. State of Kerala [(2003)
3 SCC 355; State of Rajasthan v. Om Prakash (2002) 5
SCC 745 : [2002] 3 SCR 753 - relied on.
3. The Investigating Officer is expected to kick start his
investigation immediately after registration of a cognizable
offense. An inordinate and unexplained delay may be fatal to the
prosecution's case but only to be considered by the Court, on
the facts of each case. There may be adequate circumstances for
not examining a witness at an appropriate time. However, nonexamination of the witness despite being available may call for
an explanation from the Investigating Officer. It only causes doubt
in the mind of the Court, which is required to be cleared. Similarly,
a statement recorded, as in the present case, the investigation
report is expected to be sent to the jurisdictional Magistrate at
the earliest. A long, unexplained delay, would give room for
suspicion. [Paras 28, 29][748-F-H]
Shahid Khan v. State of Rajasthan (2016) 4 SCC 96 :
[2016] 2 SCR 284; Ganesh Bhavan Patel v. State of
Maharashtra (1978) 4 SCC 371 : [1979] 2 SCR 94 -
relied on.
4. Section 27 of the Evidence Act is an exception to Sections
24 to 26. Admissibility under Section 27 is relatable to the
information pertaining to a fact discovered. This provision merely
facilitates proof of a fact discovered in consequence of information
received from a person in custody, accused of an offense. Thus,
it incorporates the theory of "confirmation by subsequent facts"
facilitating a link to the chain of events. It is for the prosecution
to prove that the information received from the accused is
relatable to the fact discovered. The object is to utilize it for the
purpose of recovery as it ultimately touches upon the issue
pertaining to the discovery of a new fact through the information
furnished by the accused. Therefore, Section 27 is an exception
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to Sections 24 to 26 meant for a specific purpose and thus be
construed as a proviso. The onus is on the prosecution to prove
the fact discovered from the information obtained from the
accused. This is also for the reason that the information has been
obtained while the accused is still in the custody of the police.
Having understood the aforesaid object behind the provision,
any recovery under Section 27 will have to satisfy the Court's
conscience. One cannot lose sight of the fact that the prosecution
may at times take advantage of the custody of the accused, by
other means. The Court will have to be conscious of the witness's
credibility and the other evidence produced when dealing with a
recovery under Section 27 of the Evidence Act. [Paras 30,
31][750-G-H; 751-A-C]
Kusal Toppo v. State of Jharkhand (2019) 13 SCC 676;
Navaneethakrishnan v. State (2018) 16 SCC 161: [2018]
6 SCR 749; H.P. Admn. v. Om Prakash (1972) 1 SCC
249: [1972] 2 SCR 765; Aghnoo Nagesia v. State of
Bihar [1966] 1 SCR 134; K. Chinnaswamy Reddy v.
State of A.P. [1963] 3 SCR 412 - relied on.
Case Law Reference
(2021) 3 SCC 687
relied on
Para 25
[2011] 11 SCR 429
relied on
Para 27
[(2003) 3 SCC 355
relied on
Para 27
[2002] 3 SCR 753 45
relied on
Para 27
[2016] 2 SCR 284
relied on
Para 29
[1979] 2 SCR 94
relied on
Para 29
(2019) 13 SCC 676
relied on
Para 31
[2018] 6 SCR 749
relied on
Para 31
[1972] 2 SCR 765
relied on
Para 31
[1966] 1 SCR 134
relied on
Para 31
[963] 3 SCR 412
relied on
Para 31
JAFARUDHEEN & ORS. v. STATE OF KERALA
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CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 430-431 of 2015.
From the Judgment and Order dated 21.10.2014 of the High Court
of Kerala at Ernakulam in Crl. A. No.1417 of 2011 and Crl. R.P. No.1931
of 2011.
With
Criminal Appeal Nos. 450-451 and 959 of 2015.
Basant R. Sr. Adv., Ramesh Babu M. R., Abdul Latheef M. P.,
Vishnu Pazhanganat, Akshay Sahay, Manu Krishnan, Advs. for the
Appellants.
P. V. Surendranath, Sr. Adv., Nishe Rajen Shonker, Mrs. Anu K.
Joy, Alim Anvar, Sawan Kumar Shukla, Subhash Chandran K. R., Mukesh
Kumar Pandey, Harshad V. Hameed, Advs. for the Respondent.
The Judgment of the Court was delivered by
M. M. SUNDRESH, J.
1. Convictions confirmed and acquittals reversed at the hands of
the Division Bench of the High Court of Kerela are under challenge
before us. The accused, who got their acquittal confirmed, stand as
freemen with no further challenge. Appropriately, our common judgment
disposes of these appeals emanating from the same occurrence.
BRIEF FACTS:
2. The deceased and the accused belong to two different political
parties - one affiliated to CPI (M) and the other NDF (National
Development Front). There was an altercation between the affiliated
political members of CPI (M) and NDF on 17.07.2002 at about 4:00
p.m. with the deceased and P.W.8 as the CPI(M) members, and A-3
and A-10 as that of NDF. In the altercation the deceased had reportedly
assaulted A-3.
3. Seeking to avenge, the accused, being 16 in numbers, assembled
at the family house of A-5 on the same day (i.e.17.07.2002) at about
7:00 p.m. and hatched a conspiracy to take out the life of the deceased.
In pursuance to the aforesaid decision, A-1 to A-13 went to the residence
of the deceased on 18.07.2002 at about 9:30 p.m. in three material objects,
namely, - (i) an auto-rickshaw, (ii) a motorbike, and (iii) a jeep, armed
with deadly weapons like swords, knives, chopper, etc. While four of
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them (A-7, A-10, A-12, and A-13) waited outside, the others (A-1 to A6, A-8, A-9, and A-11) barged in and indiscriminately attacked the
deceased. In the process, they also exploded country bombs on two
occasions.
4. The occurrence was witnessed by P.W.1, the author of the
First Information Report - Ext. P-1 and others. For the occurrence,
which took place at about 9.30 p.m. on 18.07.2002, the registration of
FIR/complaint was done in Crime No. 237/2002 at about 11.00 p.m.
against six named accused and other identifiable ones for the offences
punishable under Sections 143, 147, 148, 427, 452, 302 read with 149 of
the Indian Penal Code (for short 'IPC') and Section 3 of the Explosives
Substances Act. The registered complaint reached the jurisdictional
Magistrate at about 4.15 p.m. the next day.
5. P.W.64 took up the investigation, and accordingly arrested the
accused, A-10, A-12 and A-13 on 31.07.2002. Thereafter, recoveries
were made pursuant to their arrest. A-11 surrendered before the Judicial
First Class Magistrate, Punalur, on 05.08.2002. Recoveries have been
made from A-10, A-12 and A-13 on 01.08.2002. From A-11, recoveries
were made on 13.08.2002.
6. On completion of the investigation, a charge sheet was laid
against 16 accused. Charges were framed against A2, A-4, A-5, A-8, A9 to A-16 for the offences punishable under Sections 120-B, 143, 147,
148, 427, 460, 302 read with 149 IPC and Sections 3 and 5 of the
Explosives Substances Act. As A-1, A-3, A-6 and A-7 were absconding,
the case against them got split up.
7. The prosecution examined 66 witnesses in total while marking
Ext. P-1 to P-97. On behalf of the defence, particularly A-8 & A-9, one
witness was examined as DW-1, while Ext. D-1 to D-18 were marked.
The material objects 1 to 54 were exhibited and identified before the
Court.
8. The learned Additional District and Sessions Judge, Court I,
Kollam, while acquitting A-10 to A-16, convicted the others for the
following offences:
•
A-2, A-4, A-5, A-8, A-9 - U/s 302 r/w 149 IPC and
sentenced to life imprisonment
•
A-2, A-4, A-5, A-8, A-9 - U/s 147 r/w 149 IPC for 1 year
S.I. and fine of Rs.5000
JAFARUDHEEN & ORS. v. STATE OF KERALA
[M. M. SUNDRESH, J.]
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A-2, A-4, A-5, A-8, A-9 - U/s 148, 149 IPC for 2 years S.I.
and fine of Rs.10,000
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A-2, A-4, A-5, A-8, A-9 - U/s 460 IPC for 3 years R.I. and
fine of Rs.15,000
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A-4 - U/s 427 IPC for 6 months S.I. and a fine of Rs.5,000
9. Appeals and revisions were filed by both the prosecution and
the de facto complainant, on the one hand, and the convicted accused,
on the other. The High Court of Kerala upheld the conviction and the
sentence imposed upon A-2, A-4, A-5, A-8, and A-9 for offences under
Sections 460, 148, 302 read with 149 IPC and further convicted them
under Section 427 IPC and Section 3 of the Explosives Substances Act.
The appeal filed by the State against the order of acquittal in favour of
A-14 to A-16 was dismissed, while it was accordingly allowed by
overturning the acquittal qua A-10 to A-13. As the legal battle against
A-14 to A-16 attained finality, the convicted accused have filed these
appeals.
EVIDENCE BEFORE THE COURT
10. P.W.1 is the relative of the deceased who had seen the
occurrence from inside the house, hiding behind the chairs. All the accused
are known to him. He attributed specific overt acts against a few accused
and identified a few of them. However, this witness could not identify
A-11, not even named in Ext. P-1, i.e. first information report, despite
being a known person. Similarly, he does not identify A-10.
11. P.W.2 is the father of the deceased, who also took cover
protecting himself by staying in a nearby room. Despite being an eyewitness and knowing the accused, he wrongly identified A-10 as A-5.
P.W.2 also does not identify A-11 and A-12.
12. P.W.3 is the maid-servant working at the residence of the
deceased at the relevant point of time. She also wrongly identified A-4
as A-10, notwithstanding her claim that she knew him prior to the
occurrence. This witness did not say anything about the presence of A11, A-12 and A-13, though she speaks of the other accused, as deposed
by P.W.1 and P.W.2. Both these witnesses do not make any reference
to A-13.
13. P.W.4 is the neighbour of the deceased, having witnessed the
occurrence from outside. He identified A-10 and A-12 by deposing that
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they were standing on the south-western corner of the house. However,
he did not speak of A-11 and A-13.
14. P.W.21 is the employee (worker) in the ASR Theatre,
Thadikkad situated nearer to the deceased's house. He had seen the
occurrence from the theatre. He identified A-10, having seen him near
the vicinity of the deceased's house. His statement under Section 161 of
the Code of Criminal Procedure (for short 'Cr.PC') was recorded nine
days after the incident. Incidentally, the blood-stained clothes of A-10
were recovered from his house, he being not a party to the recovery
mahazar. He also similarly identified A-11 and A-12. He attributes the
specific overt act against A-13 of throwing a bomb. Though he states
that he saw the occurrence along with C.W.22, the said person was not
examined.
15. P.W.46 saw the incident while returning home. He heard the
gunshot and attributes overt act as against A-10, A-12 and A-13. His
statement was also recorded only on 20.07.2002. He wrongly identified
A-10 as A-7 while unable to identify A-12. He has not expressed anything
about A-11.
16. The doctor who has been examined as P.W.15 has issued
Ext. P-45 - the post-mortem certificate which, on perusal, indicates
about 30 ante-mortem injuries, of which the majority of them are incised.
17. A-8 and A-9 got injuries and took treatment in the hospital.
The injuries were found to be incised and thus contrary to the statement
made by them to P.W.45, corroborated with the entry of Accident Register
of Medical Trust Hospital. The cause of the injury, as informed by A-8
and A-9, was that they sustained the injury when the lorry tyre fell upon
them by accident when they tried to replace it with another. But, in his
evidence, P.W. 45 has stated that it is unlikely, and the injury could only
be due to a sharp-edged hard object.
TRIAL COURT
18. The Trial Court rendered its judgment as aforesaid by
undertaking a thorough analysis through a laborious process. It took into
consideration each and every aspect of evidence before rendering its
decision. Perhaps, the only exercise not done was with respect to the
recovery qua A-10 to A-13, particularly on the evidentiary value.
JAFARUDHEEN & ORS. v. STATE OF KERALA
[M. M. SUNDRESH, J.]
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19. It found that A-2, A-4, A-5, A-8, and A-9 have clinching
evidence staring at them. The evidence of eye-witnesses, as well as
that of experts, was taken into account. The contentions regarding the
delay in sending Ext.P-1 - first information report and the injuries suffered
by A-8 and A-9 were duly considered. These two accused took the
same plea under Section 313 Cr.PC questioning, denying their existence
at the place of occurrence. The case projected by the defense that the
witnesses are either set up by the prosecution or interested in securing
the conviction was not accepted by giving adequate reasoning. After
concluding that there is insufficient evidence to support the charge
attracting Section 120B of the IPC, A-14 to A-16 were acquitted.
20. It acquitted A-10 to A-13 based on the inconsistencies in eyewitness statements. Two material objects, a motorbike and an autorickshaw were found unrelated to the occurrence of the event or the
evidentiary value of the accused. As such, it granted acquittal to A-10
to A-13. The reasoning of the Trial Court is elucidated hereunder:
 "....Though PW1 would depose that accused Nos. 1 to 6
and 8 to 10 get down from the vehicle parked on the road he did
not say that A13 was among them. He did not depose that A13
exploded Bomb. From the deposition of PW1 it is brought out that
A 1 to A9 and A 11 entered into hall room first and inflicted injuries
and on getting the cut injury of A4 on the left cheek Ashrar fell
down. Before getting injury of A4 Ashraf suffered cut injury with
sword on his right leg. Thereafter A7, A10, A12 entered into the
hall room inflicted cut injuries on various parts· of. the person of
Ashraf. Ext. A45 and the deposition of PW58 proved that
corresponding injuries found on the dead body of Ashraf. Though
PW1 could depose the names of A1 to A12 he could not identify
A 1, A3, A6, A7 and A 10, A 11, he could identify A2, A4, A5, AS
and A9. His evidence shows that A11 did not inflict any injury on
Ashraf. PW2 also stated the name of the assailants came inside
the house and caused injury on the person of Ashraf. Though
PW2 stated the names of A2, A4, A5, AS, A9, A 11 he could
identify only AS andA9. No overt act stated by PW2 against A 11
and on analyzing the evidence of PW2 it is seen that A11 was
armed with sword and it was catched by Ashraf and attacked the
assailants. Thus PW2 has identified accused 8 and 9 only. The
evidence of PWs 1 and 2 and PW58 and Ex. P45 proved that the
version of PWs 1 and 2 is credible probable to believe. The victim
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sustained 20 incised wounds, on the right side of vertex, right eye
brow, left cheek and also on various parts of his body. The evidence
of PW58 and Ext. P45 corroborate the testimony of PWs 1 and
2. The other witnesses especially .PW4, PW7, PW21 and PW32
and PW46 have deposed about the incident they have seen outside
the house. Since I have discussed in the earlier paragraphs not
reproducing. PW4 identified A4, A8, A9, A10 and A12. As per
the evidence he saw A4 took A8 and A9 through the kitchen door
on the southern side of the house. A 10 and A 12 were in front of
the house of Ashraf. No overt act stated. PW7 through hostile
witness his evidence shows that A4 was driving jeep towards the
house of Ashraf and A5 was in the jeep. According to him he was
relation with A5. There is no evidence to corroborate his testimony
that A11 has driven motor cycle towards the house of Ashraf.
PW21 though narrated the presence of accused NOs.2,4,5,8,9,
11 and 13 he says that 4 accused has broken the glasses of motor
cycle and car. He also stated that A4 took A8 and A9 in front of
the house were A11 and A 13 were present. No overt act stated
against A 11. He could identify A2, A4, A5, A8 and A9, stated that
A13 Kochansar exploded bomb. As per the prosecution records
no accused named Kochansar. The name of A13 is Ansarudheen.
The prosecution failed to prove that A13 Ansarudheen is also
known as Kochansar. Therefore the evidence of PW21, PW32
and PW46 that A13 exploded bomb at the yard of the house cannot
be believed. The prosecution could not prove that impact of
Explosion at the yard or nearby place. Hence it cannot be held
that the accused are guilty of offence U/s 3 and 5 Explosive
Substance Act. The above witnesses not properly identified A13.
The above prosecution witnesses properly identified A2, A4, A5,
A8 and A9. The prosecution evidence proved that the accused
Nos. 2,4,5,8 and 9 formed an unlawful assembly at the yard of the
house committed rioting and trespassed in to the house of Ashraf
by break opening the front door with the intention to commit the
murder of Ashraf. The prosecution not succeeded to prove the
offence alleged against the accused NOs, A10, A11 and A12.
The prosecution has not succeeded to prove that the accused
were formed conspiracy at the house of A5 and taken decision to
commit the murder of Ashraf. None of the accused are guilty of
offence U/s 120B."
JAFARUDHEEN & ORS. v. STATE OF KERALA
[M. M. SUNDRESH, J.]
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HIGH COURT
21. The High Court confirmed the order of acquittal against A-14
to A-16 and confirmed the conviction against the other accused, namely,
A-2, A-4, A-5, A-8, and A-9. However, it overturned the order of acquittal
of A-10, A-11, A-12, and A-13 granted by the Trial Court on the premise
that the witnesses who spoke about these accused's presence failed to
consider the import of Section 149 IPC. These minor discrepancies ought
to have been ignored, and the prosecution case is supported by both
recoveries and medical, forensic, and scientific evidence.
SUBMISSIONS
22. Counsel appearing for A-2, A-4, A-5, A-8, and A-9 contended
that the first information report registered as Ext. P-1 is an after-thought,
created subsequently and thus ante-dated. There is no proper explanation
for referring the jeep with the registration number, which is one of the
material objects recovered under Ext.P-1, when P.W.1 states that he
came to know about it only the next day of the occurrence. Though Ext.
P-1 was sent after its registration at about 11.00 p.m., it did reach the
jurisdictional Magistrate only at about 4.15 p.m. the next day. This delay
has not been examined properly. The witnesses are either interested or
chance and, therefore, the courts ought to have rejected their testimonies.
They are not only the members of the deceased's family but also members
of a particular party. The injuries suffered by A-8 and A-9 have not been
considered in the correct perspective.
23. Mr. R. Basant, learned senior counsel appearing for A-10 to
A-13, has taken us through the law governing the cases pertaining to
appeals filed against orders of acquittal as there is an enlarged presumption
of innocence. The High Court has committed a jurisdictional error in
reversing the well-merited judgment of the Trial Court by replacing its
views with that of the Trial Court. What is required to be seen is whether
the view of the Trial Court is a possible one. The High Court has
committed an error in placing reliance upon recoveries. It did not go into
the manner in which the recoveries have been made. Section 149 IPC
though being a substantive offence, is to be proved in the manner known
to law. There must be a proof of common object. When the witnesses
are not able to identify the accused, the testimonies rendered would
become highly doubtful. The learned senior counsel took us through the
law laid down by this Court in Mohan @ Srinivas @ Seena @Tailor
Seena v. State of Karnataka, 2021 SCC OnLine SC 1233, wherein it
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was held that when after due examination and review of evidence, the
Trial Court has passed an order of acquittal, the exercise of the power
of the High Court as imposed by the code must be with circumspect.
SUBMISSIONS ON BEHALF OF THE STATE
24. It is submitted that in the absence of any apparent illegality,
the concurrent decisions rendered by the courts do not warrant any
interference. Both the Courts below considered all the evidence, eyewitnesses, material objects and recoveries while also taking into account
the scientific evidence. The motive has also been proved through the
prior occurrence. The High Court rightly considered the recoveries made
along with the oral evidence. It has given its reasons for reversing the
order of acquittal passed by the Trial Court. The Trial Court did not even
consider the evidentiary value of the recoveries. There is no need for
any interference in such a case, particularly when the contentions raised
were noted. On the issue qua the mentioning of the number of the vehicle
in the FIR, it is submitted that it has not been placed before the Court
and, in any case, the conviction was rendered based on the materials
available on record.
DISCUSSION
Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking
Section 378 of the Cr.PC, the Appellate Court has to consider whether
the Trial Court's view can be termed as a possible one, particularly when
evidence on record has been analyzed. The reason is that an order of
acquittal adds up to the presumption of innocence in favour of the
accused. Thus, the Appellate Court has to be relatively slow in reversing
the order of the Trial Court rendering acquittal. Therefore, the presumption
in favour of the accused does not get weakened but only strengthened.
Such a double presumption that enures in favour of the accused has to
be disturbed only by thorough scrutiny on the accepted legal parameters.
Precedents:
• Mohan @Srinivas @Seena @Tailor Seena v. State of
Karnataka, [2021 SCC OnLine SC 1233] as hereunder: -
"20. Section 378 CrPC enables the State to prefer an appeal
against an order of acquittal. Section 384 CrPC speaks of
the powers that can be exercised by the Appellate Court.
JAFARUDHEEN & ORS. v. STATE OF KERALA
[M. M. SUNDRESH, J.]
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[2022] 5 S.C.R.
When the trial court renders its decision by acquitting the
accused, presumption of innocence gathers strength before
the Appellate Court. As a consequence, the onus on the
prosecution becomes more burdensome as there is a double
presumption of innocence. Certainly, the Court of first
instance has its own advantages in delivering its verdict,
which is to see the witnesses in person while they depose.
The Appellate Court is expected to involve itself in a deeper,
studied scrutiny of not only the evidence before it, but is
duty bound to satisfy itself whether the decision of the trial
court is both possible and plausible view. When two views
are possible, the one taken by the trial court in a case of
acquittal is to be followed on the touchstone of liberty along
with the advantage of having seen the witnesses. Article
21 of the Constitution of India also aids the accused after
acquittal in a certain way, though not absolute. Suffice it is
to state that the Appellate Court shall remind itself of the
role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it
is the Court's role undertake. Truth has to be found on the
basis of evidence available before it. There is no room for
subjectivity nor the nature of offence affects its
performance. We have a hierarchy of courts in dealing with
cases. An Appellate Court shall not expect the trial court to
act in a particular way depending upon the sensitivity of the
case. Rather it should be appreciated if a trial court decides
a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find,
different decisions being made by different courts, namely,
trial court on the one hand and the Appellate Courts on the
other. If such decisions are made due to institutional
constraints, they do not augur well. The district judiciary is
expected to be the foundational court, and therefore, should
have the freedom of mind to decide a case on its own merit
or else it might become a stereotyped one rendering
conviction on a moral platform. Indictment and
condemnation over a decision rendered, on considering all
the materials placed before it, should be avoided. The
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Appellate Court is expected to maintain a degree of caution
before making any remark.
23. This court, time and again has laid down the law on the
scope of inquiry by an Appellate court while dealing with
an appeal against acquittal under Section 378 CrPC. We
do not wish to multiply the aforesaid principle except placing
reliance on a recent decision of this court in Anwar
Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court
be held to be perverse has been dealt with and
considered in paragraph 20 of the aforesaid decision,
which reads as under : (Babu case [Babu v. State of
Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179])
"20. The findings of fact recorded by a court can be
held to be perverse if the findings have been arrived
at by ignoring or excluding relevant material or by
taking into consideration irrelevant/inadmissible
material. The finding may also be said to be perverse
if it is "against the weight of evidence", or if the
finding so outrageously defies logic as to suffer from
the vice of irrationality. (Vide Rajinder Kumar
Kindra v. Delhi Admn. [Rajinder Kumar Kindra v.
Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S)
131], Excise & Taxation Officer-cum-Assessing
Authority v. Gopi Nath & Sons [Excise & Taxation
Officer-cum-Assessing Authority v. Gopi Nath &
Sons, 1992 Supp (2) SCC 312], Triveni Rubber &
Plastics v. CCE [Triveni Rubber & Plastics v. CCE,
1994 Supp (3) SCC 665], Gaya Din v. Hanuman
Prasad [Gaya Din v. Hanuman Prasad, (2001) 1
SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC
206 : (2010) 1 SCC (Cri) 288] and Gamini Bala
Koteswara Rao v. State of A.P. [Gamini Bala
Koteswara Rao v. State of A.P., (2009) 10 SCC 636 :
(2010) 1 SCC (Cri) 372] )"
It is further observed, after following the decision of
this Court in Kuldeep Singh v. Commr. of Police
JAFARUDHEEN & ORS. v. STATE OF KERALA
[M. M. SUNDRESH, J.]
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SUPREME COURT REPORTS
[2022] 5 S.C.R.
[Kuldeep Singh v. Commr. of Police, (1999) 2 SCC
10 : 1999 SCC (L&S) 429], that if a decision is arrived
at on the basis of no evidence or thoroughly unreliable
evidence and no reasonable person would act upon it,
the order would be perverse. But if there is some
evidence on record which is acceptable and which could
be relied upon, the conclusions would not be treated as
perverse and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan
Singh [Vijay Mohan Singh v. State of Karnataka, (2019)
5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court again
had an occasion to consider the scope of Section
378 CrPC and the interference by the High Court [State
of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine
Kar 10732] in an appeal against acquittal. This Court
considered a catena of decisions of this Court right from
1952 onwards. In para 31, it is observed and held as
under:
"31. An identical question came to be considered
before this Court in Umedbhai Jadavbhai [Umedbhai
Jadavbhai v. State of Gujarat, (1978) 1 SCC
228 : 1978 SCC (Cri) 108]. In the case before this
Court, the High Court interfered with the order of
acquittal passed by the learned trial court on
reappreciation of the entire evidence on record.
However, the High Court, while reversing the
acquittal, did not consider the reasons given by the
learned trial court while acquitting the accused.
Confirming the judgment of the High Court, this Court
observed and held in para 10 as under:
'10. Once the appeal was rightly entertained
against the order of acquittal, the High Court was
entitled to reappreciate the entire evidence
independently and come to its own conclusion.
Ordinarily, the High Court would give due
importance to the opinion of the Sessions Judge if
the same were arrived at after proper appreciation
of the evidence. This rule will not be applicable in
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the present case where the Sessions Judge has
made an absolutely wrong assumption of a very
material and clinching aspect in the peculiar
circumstances of the case.'
31.1. In Sambasivan [Sambasivan v. State of
Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320],
the High Court reversed the order of acquittal passed
by the learned trial court and held the accused guilty
on reappreciation of the entire evidence on record,
however, the High Court did not record its conclusion
on the question whether the approach of the trial court
in dealing with the evidence was patently illegal or
the conclusions arrived at by it were wholly untenable.
Confirming the order passed by the High Court
convicting the accused on reversal of the acquittal
passed by the learned trial court, after being satisfied
that the order of acquittal passed by the learned trial
court was perverse and suffered from infirmities, this
Court declined to interfere with the order of
conviction passed by the High Court. While
confirming the order of conviction passed by the High
Court, this Court observed in para 8 as under:
'8. We have perused the judgment under appeal
to ascertain whether the High Court has
conformed to the aforementioned principles. We
find that the High Court has not strictly proceeded
in the manner laid down by this Court in Doshi
case [Ramesh Babulal Doshi v. State of
Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972]
viz. first recording its conclusion on the question
whether the approach of the trial court in dealing
with the evidence was patently illegal or the
conclusions arrived at by it were wholly untenable,
which alone will justify interference in an order
of acquittal though the High Court has rendered
a well-considered judgment duly meeting all the
contentions raised before it. But then will this
non-compliance per se justify setting aside the
JAFARUDHEEN & ORS. v. STATE OF KERALA
[M. M. SUNDRESH, J.]
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[2022] 5 S.C.R.
judgment under appeal? We think, not. In our view,
in such a case, the approach of the court which is
considering the validity of the judgment of an
appellate court which has reversed the order of
acquittal passed by the trial court, should be to
satisfy itself if the approach of the trial court in
dealing with the evidence was patently illegal or
conclusions arrived at by it are demonstrably
unsustainable and whether the judgment of the
appellate court is free from those infirmities; if so
to hold that the trial court judgment warranted
interference. In such a case, there is obviously
no reason why the appellate court's judgment
should be disturbed. But if on the other hand the
court comes to the conclusion that the judgment
of the trial court does not suffer from any infirmity,
it cannot but be held that the interference by the
appellate court in the order of acquittal was not
justified; then in such a case the judgment of the
appellate court has to be set aside as of the two
reasonable views, the one in support of the
acquittal alone has to stand. Having regard to the
above discussion, we shall proceed to examine
the judgment of the trial court in this case.'
31.2. In K.
Ramakrishnan
Unnithan [K.
Ramakrishnan Unnithan v. State of Kerala, (1999)
3 SCC 309: 1999 SCC (Cri) 410], after observing
that though there is some substance in the grievance
of the learned counsel appearing on behalf of the
accused that the High Court has not adverted to all
the reasons given by the trial Judge for according an
order of acquittal, this Court refused to set aside the
order of conviction passed by the High Court after
having found that the approach of the Sessions Judge
in recording the order of acquittal was not proper
and the conclusion arrived at by the learned Sessions
Judge on several aspects was unsustainable. This
Court further observed that as the Sessions Judge
was not justified in discarding the relevant/material
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evidence while acquitting the accused, the High Court,
therefore, was fully entitled to reappreciate the
evidence and record its own conclusion. This Court
scrutinised the evidence of the eyewitnesses and
opined that reasons adduced by the trial court for
discarding the testimony of the eyewitnesses were
not at all sound. This Court also observed that as the
evaluation of the evidence made by the trial court
was manifestly erroneous and therefore it was the
duty of the High Court to interfere with an order of
acquittal passed by the learned Sessions Judge.
31.3. In Atley [Atley v. State of U.P., AIR 1955 SC
807 : 1955 Cri LJ 1653], in para 5, this Court observed
and held as under:
'5. It has been argued by the learned counsel for
the appellant that the judgment of the trial court
being one of acquittal, the High Court should not
have set it aside on mere appreciation of the
evidence led on behalf of the prosecution unless
it came to the conclusion that the judgment of the
trial Judge was perverse.