Holding

The appeal is allowed; the High Court’s condonation of delay is erroneous and its interference with the trial court’s acquittal is unwarranted.

Summary

Ajit Singh, his son Balwant Singh and another son Mohan Singh were tried for the murder of Manilal and injuries to his brothers. The trial court acquitted them, finding the prosecution evidence unreliable and giving them the benefit of doubt. The State filed an appeal after the limitation period had expired; the Gujarat High Court condoned the delay, considered the appeal on its merits and convicted Ajit and Balwant, while dismissing the appeal against Mohan. The Supreme Court held that the High Court could not condone the delay because no sufficient cause arose before the limitation expired, and that the High Court erred in disturbing the trial court’s acquittal since the trial judge’s findings were reasonable and the evidence was untrustworthy. Consequently, the appeal was allowed, the High Court order set aside and the trial court’s acquittal restored.

Issues considered

The adequacy of "sufficient cause" to condone delay in filing an appeal beyond the limitation period under the Limitation Act, 1963.
Whether a High Court may interfere with an order of acquittal and what approach it must adopt in exercising appellate jurisdiction.
Whether the additional evidence (blood‑stained slipper, diary) presented by the State was sufficient to overturn the trial court’s finding of untrustworthy evidence.

Legislation cited

Code of Criminal Procedures. 154
Indian Penal Code, 1860s. 302, s. 326
Limitation Act, 1963s. 5, s. Art.114
Supreme Court (Enlargement of Criminal Appellate Jurisdiction) Act, 1970s. 2

Subjects

criminal appeallimitation periodcondonation of delayacquittalpresumption of innocenceevidence reliabilityappellate jurisdictionIPC 302IPC 326Criminal Procedure

Judgment

) 509

AJITSINGH THAKURS!NGH & ANR. A
v.
STATE OF GUJARAT
January 9, 1981
[R. S. SARKARIA AND R. S. PATHAK, JJ.] B
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.
r
limitation Act 1963, Art, 114 & S. 5-De/ay in filing, appeal against order c
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 a chaw! belonging to the first appellant. The prosecution alleged that on D
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 E
was admitted. as an indoor patient.
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 p
r t h e 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 a revision petition filed by one of the
brothers of the deceased the High Court declared that the case waa a fit case
where the State Government should file an appeal. Thereafter, the State G
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:
HEID: l(i) There was no sufficient cause for the State not filing the H
appeal within time, and tho High Court erre<l' in condoning the delay.

•
[512 F-H]

- ---;i:i:· ~-
(
510 SUPREME COURT REPORTS [1981] 2 S.C.R.

A (ii) A 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
B 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 a 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 -t
(ii) The approach to be adopted by the High Court v1hen exercising its
c appeUate powers in a case of appeal against an order of acquittal has been
defined in a 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, a 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
D an appellate court in disturbing a finding of fact arrived at by a Judge who had
the advantage of seeing the witnesses". The approach has been endorsed by
this Court repeatedly and in a 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
E
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. a 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
F 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 a blood·
stained slipper and a 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
G diary belonged to him. Nor is there sufficient proof that tbe slipper i3 his.
(
[515 BJ
3 The trial court wrote a 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.
H 329 of 1979.
From the Judgment and Order dated 9-4-1979 of the Gnjarat High
Court in Criminal Appeal No. 270/76. '1
)
AJIT SINGH V. GUJARAT (Pathak, J.) 511

Rajandra Prasad Singh, M/s. K. G. Vakharia, P. H. Parekh and A
Raian Karanjawala for the Appellants.
T. U. Mehta, M. N. Shroff and Himantika Wahi for the
Respondent.

B
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 C
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-
der of Manilal and with causing injuries to Parmabhtl, Bhulabhai and D
Natwarlal. The prosecution case is that Manila!, Bhufabhai and
Bhikabhai wcro three brothers residing in a 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
E
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 F
the appellants. Parrnabhai, who had emerged from !us room, was
also attacked and given a 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 a kirpan blow.
Mohan Singh is alleged to have wielded a 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 a complaint
made by Bhulabhai.

-..---
(
512 SUPREME COURT REPORTS [1981] 2 S.C.R.

A 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
B 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
·C 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 a decision not to me an appeal and it allowed the
D period of limitation to lapse. Subsequently, on certain observations
made by the High Court while considering a revision petition by
Bhulabhai that it was a 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
E three months after limitation had expired. A 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 a 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
·G 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 a 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.
AJJT SINGH v. GUJARAT (Pathak, J.) 513

It is pointed out that the High Court could have sent for the A
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 B
before the High Court. The trial court wrote a careful judgment,
exhaustively considering all the evidence and on painstaking analysis
.reached conclusions which, in our opinion, are pre-eminently rea
sonable and support the order of acquittal. It found that the evidence
did not establish that the injury suffered by Bhulabhai could have
�
· , resulted from a kirpan, that the panch witnesses to the recovery of c
the two kirpans did not support the prosecution, that of the six eye
witnesses one of them, Ramiben, widow of Manila!, was not present
on the scene at all, that all 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 D
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 "sar
darjis" had come to the chaw! and had injured two persons with a
E
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 cir
cumstance that four bicycles were seized by the pnlice at the scene,
F
which is inconsistent with the prosecution case that three persons, the
accused, were involved. As regards the complaint filed by Bhula
bhai, the trial court has found that it could not be admitted in
f 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 G
trial court also adverted to the fact that the police did nc..t 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
a single independent witness has come forward to support the prose
cution. The eye-witnesses produced are either related or members .
514 SUPREME COURT REPORTS [1981] 2 S.C.R.
f
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 a running war between them in the matter of
payment of rent, and disputes had arisen concerning ownership of the
B 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
C 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
D against an order of acquittal. The approach to be adopted by the
High Court when exercising its appellate powers in such a case has
been defined in a 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)
E the presumptioh of innocence in favour of the accused, a 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 a finding of fact
arrived at by a Judge who had the advantage of seeing the witnesses."
F
The approach has been endorsed by this Court repeatc.Jly, and in a
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 a matter
G 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 be1ow 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."
e
(I) A.I.R. 1934 P.C. 227.
(2) [1979] 2 SCR. 94.
AJIT SINGH v. GUJARAT (Pathak,!.)

• 515

'fhe legal position is well settled and, indeed, has been adverted A
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 a course not warranted by law. It has taken into
particular regard a few considerations whi<;h seemed to it to assume
importance. It has referred to the recovery of a bloodstained slipper
and a diary from the scene of the offence, and has inferred that they B
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
c
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. D
These are the reasons which persuaded us to make the order
disposing of the appeal.

N.V.K. Appeal allowed.

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