Holding

The Supreme Court held that the High Court erred in reversing the trial court’s acquittal and reinstated the acquittal of the accused.

Summary

The accused Mahtab Singh and his son were acquitted by the trial court of murder under s.302 r/w s.34 IPC and of an offence under the Arms Act, on the ground that the prosecution failed to prove its case beyond reasonable doubt. The High Court reversed the acquittal, relying on the testimony of two eye‑witnesses despite contradictions, and on the prompt filing of the FIR. The Supreme Court held that the High Court erred in overturning the trial court’s judgment because the evidence was unreliable, key witnesses were not examined, and the prosecution’s case was fraught with doubts, making the trial court’s view both possible and plausible. Consequently, the appeal was allowed and the acquittal reinstated. The Court reiterated that an appellate court may not disturb a judgment of acquittal unless it is convinced that no two views of the evidence are possible.

Issues considered

The High Court’s power to reverse a trial court’s acquittal under Sections 378 and 386 of the Cr.P.C.
Whether the prosecution proved the charge of murder under s.302 r/w s.34 IPC beyond reasonable doubt.
The reliability and credibility of the eye‑witnesses (PW‑1 and PW‑2).
The effect of non‑examination of a material witness (R) and non‑production of the lantern on the prosecution case.
Whether the appellate court must find that no two views of the evidence are possible before setting aside an acquittal.

Legislation cited

Arms Act, 1959s. 25, s. 4
Code of Criminal Procedure, 1973s. 378, s. 386
Indian Penal Code, 1860s. 302, s. 34

Subjects

acquittalappellate reviewreasonable doubtwitness credibilitymurdersection 302 IPCsection 34 IPCArms ActCriminal Procedure Codeevidence appraisal

Judgment

[2009] 5 S.C.R. 848

A MAHTAB SINGH & ANR.
v.
STATE OF U.P.
(Criminal Appeal No. 168 of 2006)
APRIL 13, 2009
B
[S.B. SINHA, DR. MUKUNDAKAM SHARMA AND
R.M. LODHA, JJ.]

Code of Criminal Procedure, 1973 - ss.378 and 386 -
c Judgment of acquittal - Reversed by High Court in appeal -
Propriety of- Held: On facts, not proper- Very genesis of the
crime was doubtful and full of suspicion - Testimony of PWs
did not conform with collateral circumstances and probabi/11ies
- PWs were also interested witnesses - False implication of
D accused was not ruled out - Important witness though
available was not examined - Trial court had meticulously
examined the entire evidence on record and concluded that
prosecution failed to prove charges against accused beyond
reasonable doubt - View taken by trial court was possible as
E well as plausible - High Court erred in reversing the judgment
of acquittal recorded by trial court - Penal Code, 1860 - s.
302 rlw s.34-Arms Act, 1959 - ss. 4 and 25.

According to the prosecution, at 9 pm in the night,
while returning from the betel shop of one 'R', PW1 and
F his brother met appellant no.1 and his son appellant no.2,
whereupon PW1 's brother demanded money owed to him
--
by appellant no.1 but the latter started rebuking PW1 's
brother and asked appellant no.2 to kill him, and that
thereafter appellant no.2 caught hold of PW1 's brother
G while appellant no.1 stabbed him with a knife due to
which PW1 's brother fell down and subsequently died at
the hospital.

The appellants were charge-sheeted under s.302 rl
H 848
MAHTAB SINGH & ANR. v. STATE OF U.P. 849

w s.34 IPC and under s.4 r/w s.25 of the Arms Act, 1959 A
but the Trial Court acquitted them holding that the
prosecution had failed to prove the charges against them
beyond reasonable doubt. On appeal, the High Court set
aside the judgment of acquittal and convicted the
appellants under s.302 r/w s.34 . IPC with life B
imprisonment. Appellant no.1 was also convicted under
s.4 r/w s.25 of the Arms Act, 1959. Hence the present
appeal.

Allowing the appeal, the Court
c
HELD:1.1. PW-1 has admitted in his deposition that
R's shop was hardly 2-3 steps away from the place of
occurrence. But strangely, despite availability, R's
statement was neither recorded under Section 161 Cr.P.C.
nor he was tendered in examination before the Court. D
According to prosecution case, a lantern was burning at
R's shop and it was from the light of that lantern that PW-
1 and PW-2 could see the culprits. The Investigating
Officer (PW-6), even did not seize the lantern from R's
shop. The omission on the part of PW-6 in not recording E
the statement of 'R' and not seizing the lantern from his
shop is not innocuous; rather the very genesis of the
crime has been rendered doubtful and full of suspicion.
The trial court considered this aspect as one of the main
reasons in not believing the prosecution case and F
acquitted the accused. However, the High Court ignored
and overlooked this aspect altogether. Non-examination
of 'R' in the circumstances is destructive of the
substratum of the prosecution story. [Para 10] [858-C-F]

1.2. The High Court failed to consider a very material G
aspect that despite the fact that police station was
situated close and visible from the place of incident, yet
PW-1 did not go immediately to police station to report
but he first went to have a written report prepared and
then went to the police station with written report. The H
850 SUPREME COURT REPORTS [2009] 5 S.C.R.
\ ..

A first version of the incident could have been reported at
the police station within five minutes of its occurrence.
The fact that PW-1 took 45 minutes in reporting the
incident at the police station rather creates doubt about
the truthfulness of the prosecution case and does not rule
B out false implication of the accused against whom PW-1
had grudge due to some civil dispute between them.
[Para 11] [858-G-H; 859-A-B]

1.3. The evidence of PW-1 about sufficient light from
the electric pole and from the lantern at Balbir's shop is
C again highly doubtful. The Investigating Officer (PW-6) in
his testimony stated that neither in FIR nor in his
statement PW-1 told him about the electric pole at the
place of incident. PW-6 admitted that electric pole has not
been shown in sketch prepared by him. About the light
D from the lantern at the shop of Balbir, although the said
lantern is said to have been seized by PW-6, but
surprisingly that lantern was not produced during the trial
before the Court. PW-6 also admitted that PW-1 did not
tell him that it was a moonlit night. In these
E circumstances, the evidence of PW-1 that he witnessed
the incident further becomes doubtful as admittedly he
was sitting under thatched roof about 40-45 paces away
from the place of incident. [Para 12] [859-C-E]

F 1.4. It is true that the evidence of PW-1 being brother
of the deceased could not have been justifiably thrown
out as an interested witness but in the backdrop of totality
-
of his evidence, his testimony could not have been safely
relied upon and the trial court cannot be said to have
G committed any error in this regard. The vital omissions
in his testimony also shake the trustworthiness of this
witness. [Para 12] [859-F]
•
1.5. The evidence of PW-2 is no better. His very
presence at the time of incident is not only doubtful but
H also highly unnatural. He is not the resident of the village
c MAHTAB SINGH & ANR. v. STATE OF U.P. 851
•.J

where the incident occurred. It does not stand to reason A
~. that in the night at about 9.00 P.M. he would bring his
foodgrain for grinding. He was unable to tell how much
foodgrain he had brought for grinding. The most
surprising aspect is that although he claims to have been
present at the time of incident, he neither went along with B
deceased when he was taken to Primary Health Centre
after the incident nor he accompanied PW-1 to police
station for lodging the report. He left the place of
occurrence within 10 minutes of the incident for his
village. The version of PW-1 and PW-2, insofar as infliction c
of knife injury by appellant no.1 to deceased is concerned,
is also not uniform. PW-1 in his deposition stated that
appellant no.1 stabbed deceased from the back side

- ...
while the version of PW-2 is that appellant no.1 inflicted
knife injury to deceased from the front. Pertinently, PW-2
is also co-brother of deceased. [Para 13) [859-G-H; 860-
A-CJ
D

1.6. The testimony of PW-1 and PW-2 does not
conform with collateral circumstances as well as
probabilities. The circumstances brought on record show E

- that reliance on their testimony is not safe. Their
testimony is shrouded with grave suspicion and serious
doubts. [Para 14) [860-D]

2. The trial court meticulously examined the entire F
.- evidence available on record and then reached the
conclusion that the prosecution has failed to prove the
charges against the accused beyond reasonable doubt.
The High Court did not keep the well settled principles
in mind and reversed the judgment of acquittal recorded
G
by the trial court when the view taken by the trial court
was possible as well as plausible. The High Court, thus,
.. seriously erred in disturbing the judgment of acquittal and
'
recording the finding of guilt against the accused. [Paras
15 and 19) [860-E;863-D)
H
852 SUPREME COURT REPORTS [2009] 5 S.C.R.

'"
A Kalyan Singh v. State of M.P. (2006) 13 SCC 303; K.
Prakashan v. P.K. Surenderan (2008) I SCC 258; Ghurey Lal
,•
v. State of Uttar Pradesh (2008) 10 SCC 450; Shea Swarup
v. King Emperor AIR 1934 PC 227; Surajpal Singh v. State,
AIR 1952 SC 52; Tulsiram Kanu v. State, AIR 1954 SC 1;
B Madan Mohan Singh v. State of U.P, AIR 1954 SC 637; Aher
Raja Khima v. State of Saurashtra, AIR 1956 SC 217; M.G.
Agrawal v. State of Maharashtra, AIR 1963 SC 200; Noor
Khan v. State of Rajasthan, AIR 1964 SC 286; Khedu
Mohton v. State of Bihar (1973) 2 SCC 450; Shivaji Sahabrao
c Bobade v. State of Maharashtra (1973) 2 SCC 793; Lekha
Yadav v. State of Bihar (1973) 2 SCC 424; Bishan Singh v.
State of Punjab (1974) 3 SCC 288; Umedbhai Jadavbhia V.
State of Gujarat (1978) I SCC 228; Tota Singh v. State of
Punjab (1978) 2 SCC 529; Ram Kumar v. State of Haryana
D
(1995) Supp. (I) SCC 248, Bhagwan Singh V. State of M.P.
(2002) 4 SCC 85; C. Antony v. K.G. Raghavan Nair (2003) I
... -
SCC 1; State of Kamataka v. K. Gopalakarishna (2005) 9
SCC 291 and State of Goa v. Sanjay Thakran (2007) 3 SCC
755, relied on.

E Case Law Reference:

(2006) 13 sec 303 Para 16 relied on

(2008) 1 sec 258 Para 17 relied on
-
(2008) 10 sec 450 Para 18 relied on
F
AIR 1934 PC 227 Para 18 relied on
....
AIR 1952 SC 52 Para 18 relied on

AIR 1954 SC 1 Para 18 relied on
G
AIR 1954 SC 637 Para 18 relied on

AIR 1956 SC 217 Para 18 relied on ~

AIR 1963 SC 200 Para 18 relied on
H AIR 1964 SC 286 Para 18 relied on
MAHTAB SINGH & ANR. v. STATE OF U.P. 853
,I

(1973) 2 sec 450 Para 18 relied on A
(1973) 2 sec 793 Para 18 relied on
,..
~ (1973) 2 sec 424 Para 18 relied on
(1974) 3 sec 288 Para 18 relied on B
' (1978) 1 sec 228 Para 18 relied on
(1978) 2 sec 529 Para 18 relied on
(1995) Supp. (I) SCC 248 Para 18 relied on
c
(2002) 4 sec 85 Para 18 relied on
(2003) 1 sec 1 Para 18 relied on
(2005) 9 sec 291 Para 18 relied on
(2007) 3 sec 755 Para 18 relied on D
l
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
No. 168 of 2006.

From the Judgment & Order dated 27.5.2005 of the High
E
Court of Judicature at Allahabad in Govt. Appeal No.1219 of .
2001.

Sarvesh Bisaria and Anil Nag for the Appellant.

_l
R.K. Das, S.N. Pandey and Chandra Prakash Pandey for F
the Respondents.

The Judgment of the Court was delivered by

R.M. LODHA, J. 1. The judgment of acquittal passed by
the IVth Additional Sessions Judge, Farrukhabad on December G
20, 2000 in Session Trial Nos. 48/91 and 49/91 came to be
·-. overturned by the Division Bench of High Court of Judicature
at Allahabad vide its judgment and order dated May 27,-2005.
High Court found both accused guilty of the offence punishable
under Section 302 read with 34 1.P.C. and sentenced them to H
854 SUPREME COURT REPORTS (2009] 5 S.C.R.
I,

A life imprisonment. Accused Mahtab Singh was found guilty of
an offence under Section 4/25 Arms Act, 1959 as well and
sentenced to six months rigorous imprisonment on this count.
Aggrieved, the accused are in appeal by special leave.

2. Briefly put, the prosecution case is : Ganga Singh
8
(deceased) and his brotherVinod (PW 1) owned a small Flour
Mill at village Kampil. On September 28, 1990 at 9.0oP:M.,
while returning from the betel shop of Rajveer after purchasing
bidi, a few steps away, at Tiraha Qunction of three roads),
Mahtab Singh (A-1) and Jaipal (A-2) - father and son - met
C him. Ganga Singh demanded money due from Mahtab Singh.
Mahtab Singh, however, rebuked him. Ganga Singh asked
Mahtab Singh as to why he was rebuking when money was
due and payable by him. Hearing this, Mahtab Singh asked
his son Jaipal to catch and kill Ganga Singh. Jaipal caught hold
D of Ganga Singh; Mahtab Singh gave a knife blow to Ganga
Singh due to which Ganga Singh fell down. Vinod (PW-1) and
Ratiram (PW-2) who were sitting under the thatched roof near
Flour Mill and one Asarfilal rushed towards the spot. On seeing
them, Mahtab Singh and Jaipal ran away. Ganga Singh was
E sent to Primary Health Centre at Kayamganj with Asarfilal,
Balbir, Shyam Singh and other family members. Vinod got the
report written from one Charan Singh and went to Kampil police
station. Based on that, First Information Report was registered
under Section 307 IPC. Dr. G.K. Singh (PW-5), Medical
F Superintendent, Primary Health Centre, Kayamganj sent an
intimation at about 10.30 P.M. to the police station, Kampil
about the death of Ganga Singh. The case was, thus, converted
to Section 302 l.P.C.

G 3. Singh Rampati Ram (PW-6), Sub-inspector, Kampil
police station started investigation on September 29, 1990. He
prepared the sketch map and also took one lantern in his
possession. The challan of dead body was prepared and photo
of dead body was also taken. The autopsy of dead body was
conducted by Dr. Manohar Singhal, (PW-4). On September 29,
H
MAHTAB SINGH & ANR. v. STATE OF U.P. 855
,·I [R.M. LODHA, J.]

1990, at about 4.00P.M., A-1 was arrested. On his disclosure A
statement, blood stained knife, shirt and bandi are said to
have been recovered from his house. Then, another case under
Section 4/25 of the Arms Act, 1959 was registered against A-
1. The investigation of the case under Section 4/25 of the Arms
Act was done by Sub-Inspector B.D. Chaudhary (PW-8). A-2 B
was also arrested on October 6, 1990.

4. After completion of investigation, two chargesheets
came to be filed. One was filed against A-1 and A-2 under
Section 302/34 IPC for the murder of Ganga Singh. The other
chargesheet was filed against A-1 under Section 4/25 of the C
Arms Act. Both the Session Trials uncer Section 302 read with
Section 34 IPC and under Section 4/25 of the Arms Act were
taken up together.

5. The trial court was of the opinion that prosecution failed D
.l to prove the charges against the accused persons beyond
reasonable doubt. The trial court acquitted the accused mainly
for the following reasons:

(i) The testimony of PW-1 and PW-2 suffers from E
significant contradictions. While PW-1 stated in his
evidence that Mahtab Singh stabbed Ganga Singh with a
knife from back side, the deposition of PW-2 was that
Mahtab Singh inflicted knife injury to Ganga Singh was
from front side.
l F
(ii) Both the eye witnesses are interested witnesses. PW-
1 is a real brother of deceased and PW-2'is a deceased's
co-brother.

(iii) The identification of the accused persons by PW-1 and G
PW-2 in the dark night was highly improbable and doubtful.
No evidence much less· reliable evidence of butning
lantern and light from the electric bulb was produced. No
evidence that it was moonlit night.

(iv) Rajveer from whose shop Ganga Singh'purchased bidi H
''
856 SUPREME COURT REPORTS [2009) 5 S.C.R.

A has not been examined by prosecution; even his
statement under Section 161 Cr.P.C. was not recorded.
The burning lantern from his shop was not seized by the
investigating officer.

(v) The lantern which was seized from the shop of Balbir
B
was not produced before the Court.

(vi) The presence of PW-2 was highly unnatural. He is
resident of Nagala Kulu. His statement that he came to
Ganga Singh's Flour Mill for grinding at night (9.00 P.M.)
c does not inspire confidence as the Flour Mill is situated in
different village. His conduct of leaving the place of
occurrence immediately after the incident makes his
presence at the time of incident highly doubtful. PW-2
neither accompanied Ganga Singh to the Primary Health
D Centre nor accompanied PW-1 to the police station.

(vii) Asarfilal who was present at the time of incident and
who accompanied Ganga Singh to Primary Health Centre
has not been examined although his statement u/s 161
Cr.P.C. was recorded.
E
(viii) The recovery of knife, shirt and bandi (all blood
stained) from the house of A-1 at 4.30 P.M. immediately
after his arrest at 4.00 P.M. on 29.09.1990 is highly doubtful
as police raided the house of A-1 from 6.00 AM. to 3.30
F P.M. on September 29, 1990 number of times and l
offending article was not found. No memo of disclosure
statement of A-1 prepared.

6. The High Court, in appeal, however, formed entirely
different opinion. The High Court principally recorded the
G
following reasons for upsetting the judgment of acquittal:

(i) The evidence of PW-1 and PW-2 was clinching and
.-
could not have been rejected. The contradictions in their
evidence were insignificant.
H
MAHTAB SINGH & ANR. v. STATE OF U.P. 857
[R.M. LODHA, J.]

(ii) The FIR was lodged barely 45 minutes after the incident A
; the distance of police station being one furlong from
place of incident and the presence of PW-2 was
mentioned in the FIR itself.

(iii) PW-1 and PW-2 were sitting under the thatched roof
.. near the Flour Mill and there being no obstruction between
B
that place and the place of incident which was about 40
paces away, it was not improbable for PW·1 and PW-2
to watch the incident as lantern was burning at the shop
of Balbir (8 paces away). There was no possibilitylof
mistaken identity, as A-1 and A-2 were not unknown to
c
" PW-1 and PW-2.

(iv) Non-production of Asarfilal has been explained by PW-
1 that he had crossed over to the side of the accused and
''
...; did not want to support the prosecution case . D
\.
(v) The recovery of blood stained knife and clothes from
the house of A-1 was not liable to be rejected as recovery
was proved by public witness PW-7.
7. The core question that must be answered is: whether E
the prosecution story is worth credence and whether the
prosecution has sufficiently proved its case against the accused
beyond reasonable doubt.

8. Dr. Manohar Singhal (PW-4) conducted autopsy of the F
1 dead body on September 29, 1990 at about 3.45 P.M. He
found the following ante-mortem injury on the dead body of
Ganga Singh :

Stab wound 3 cm x 1.5 cm chest cavity deep over left side
of neck, 7 cm below and medial to interior angle of left G
scapula and 8 cm outer to the mid line. Obliquely placed.
->.. Upper angle sharp. Margins clean cut and inverted.
PW-4 has deposed that Ganga Singh had died due to shock
H

.
858 SUPREME COURT REPORTS [2009] 5 S.C.R.

A and haemorrhage as a result of ante-mortem injury sustained
by him.

9. From the autopsy report and the testimony of PW-4, it
can reasonably be held that death of Ganga Singh was
"c'~hotnicitlal.
B·~ -i- ""· .
•··
.,,
..,,; j
•
.·;; .. '''i L 10. •Tbe inci~enJ_oc9~rr~.d on September 28, 1990 at 9.00
·10rP.M. Ganga ~ingh ..(<;l~se~s~d) had gone to betel shop of
iO RajveerJo pyrch_asebidi. While he was returning, only few steps
· • ,away, theJncident i~ said to h~ye occurred,. As a m~tter of fact,
C PW-1 has admitted in his deposition that Rajveer's shop was
.
hardly 2-3 steps away from the place of occurrence. But
'.
'· strangely, 1despite·availability, Rajveer's statementwas neither
1
recoidea under Section J61 Cr!P.C. nor he was tendered in
examination:before the Court. According to prosecution case, ·'
D• .. a• lantern
... "I•"'-
was
. • "
burning at Rajveer's shop and it was from the
~ 1

light ofthat lanfern'ltllat'PW-1 'and PW-2 could see the culprits.
~ "''the '1n.Jesflgatirlg f}frajef (PW-6), even did. not seize the lantern
1

from Rajveer's shop: The omission on the part of PW 6 in not
:1 1, 3 ,tre~9rdjpgthe,statement of Rajv~er and not seizing the lantern
E1' frgm his snop is not innocuous; rather t~e very genesis of the
1·-h.. :9.fi!l]e ~?~been. ~en~ered <;t?ub~yl an~)Hll of suspicion. The trial
court considered this aspect as orie"of the main reasons in not
believing the prosecution case' and'
acquitted the accused.
c;r- 'However,,- theJ;!tgh Court ignored and overlooked this aspect
-
Fi; aft6gether!• ln.co,ur ,view,. non.-examination of Rajveer in the l
u <'circumstances is destructive of the substratum Of the
prosecution story.

· · ''"J '11: One of the main reasons given by the1 High Court in
8
~ : •upsetting thejudgment of acquittal is that FIR was lodged barely
G1,·45 miriutes after the· incjdent; the distance ot' ROliqe station
being hardly one furlong from the place of occurrence. High
, Court, however, failed to c~nsider a very materiai aspect that
' : c · despit~· the fact that police station was situated close and
visible from the place of incident, yet PW-1 did not go
H
#
MAHTAB SINGH & ANR. v. STATE OF U.P. 859
[R.M. LODHA, J.] C08
immediately to police station to report but he first went to A
Charan Singh to have a written report prepared and then w~ntd 1...
to the police station with written report. The first version ofJhIDl
incident could have been reported at the police station.withirrn
five minutes of its occurrence. The fact that PW~1 tod~ 45~ij
minutes in reporting the incident at the police stationt Fathe:r.ii B
j
creates doubt about the truthfulness of the prosecution ca8ecand~i 8
does not rule out false implication of the accused againstwtromJt
PW-1 had grudge due to some civil dispute betweer.iJthem.erH
•1'1i 2s 1stoani
.. 12. The evidence of PW-1 about sufficient lig~t}[:P!Jh~~~
electric pole and from the lantern at Balbir's ~h9P,1 ~!~9~i,ljb C,.
highly doubtful. The Investigating Officer (PW-6) i.n;!)j~!e~ti,r;n~OYit 0
stated that neither in FIR nor in his statement P'&':i1n19.lcf1 oim~
about the electric pole at the place of incident.f;?Y\l-6;~~miff~ 1
that electric pole has not been shown in sketch prepared by
him. About the light from lantern at the shop bf Baloir; although D
the said lantern is said to have been seize(!; by1P.W~6J.b1Jt~ 0
surprisingly that lantern was not produced durihg thetrialbeferi:f
the court. PW-6 also admitted that PW-1 did hoHell'hjm:that-it'
was a moonlit night. In these circumstances1!the evideho~of
PW-1 that he witnessed the incident further becomes doubtful E
as admittedly he was sitting under thatgh gd 1r66faSbut?.f0-45 3
1

paces away from the place of incident.}t~1fifCJ&'f~flhe eiiiderte€
of PW-1 being brother of the deceaskff2cfultii nof'have ·t>J~ti·
justifiably thrown out as an interJ~Wcr'WhR~ss·:OLt1nL'fhe
backdrop of totality of his evidence,1 il'!\9HC::P?~_:>jg~f.e~ 1 vir,y;. his F
testimony could not have been safely relieg,,,uof:!B2c.~J1?~h~ 1 ~f!Ci~ =i
court cannot be said to have committed any error in this regard.
The vital omissions in his .,testimo.nyg'als1ll1Tshake the
trustworthiness of this witness. "'' •'> 1 .10ir•r10 i.1e1: <'1:..,c·:
1 G ~::i~·;rf'.~ --:.~c .. n pnib;:;~ t.J G
13. The evidence of PW-2 is., no•-..
better.-His
.... .....-.-•. :"..oil
~·
ve!Ypresence ,...
1 ~··::;_11vJ;.;; (~I

at the time of incident is nqt·~Q!y, 2c;t.o,u~~!';l!,-,bH! ~!5i~.,:~ighly
unnatural. He is not the resident,:;0f;;\/Hlag~ ~~n:ipjl ;"~he~e the
incident occurred; he resides at Village Kullu Nagla. It does not
stand to reason that in the night at about ~]O}:> ~M.· h,~'.l~~ul~ H
H
860 SUPREME COURT REPORTS [20091 5 S.C.R.

A bring his foodgrain for grinding. He was unable to tell how much
foodgrain he had brought for grinding. The most surprising
aspect is that although he claims to have been present at the
time of incident, he neither went along with Ganga Singh when
he was taken to Kayam Ganj Primary Health Centre after the
B incident nor he accompanied PW-1 to police station for lodging
the report. He left the place of occurrence within 10 minutes of
the incident for his village. The version of PW-1 and PW-2,
insofar as infliction of knife injury by Mahtab Singh to deceased
Ganga Singh is concerned, is also not uniform. PW-1 in his
c deposition stated that Mahtab Singh stabbed Ganga Singh
from the back side while the version of PW-2 is that Mahtab
Singh inflicted knife injury to Ganga Singh from the front.
Pertinently, PW-2 is also co-brother of Ganga Singh.

14. All in all, the testimony of PW-1 and PW-2 does not
D conform with collateral circumstances as well as probabilities.
The circumstances brought on record show that reliance on their
testimony is not safe. Their testimony is shrouded with grave
suspicion and serious doubts.
E 15. The trial court meticulously examined the entire
evidence available on record and then reached the conclusion
that the prosecution has failed to prove the charges against the
accused beyond reasonable doubt.

16. In Kalyan Singh v. State of M.P1., one of us (S.B. 1_

F Sinha, J.) observed:

"The High Court while dealing with the matter, in our
considered opinion, failed to apply the proper tests in
deciding a case where a judgment of acquittal has been
G recorded. The views of the learned trial Judge cannot be
said to be wholly unsustainable. It is now well known that
if two views are possible, the appellate court shall not

1. (2006) 13 sec 303.
H
MAHTAB SINGH & ANR. v. STATE OF U.P. 861
[R.M. LODHA, J.]

ordinarily interfere with the judgment of acquittal. We do A
not, however, mean to lay down the law that the High Court,
in a case where a judgment of acquittal is in question,
would not go into the evidence brought on record by the
prosecution or by the State but we would like to point out
" that even if the High Court reversed the judgment of B
, acquittal recorded by the trial court, it is incumbent on the
High Court to arrive at the conclusion that no two views are
possible."

17. The aforesaid legal position has been reiterated in K. C
Prakashan v. P.K. Surenderan2 wherein it was said:

"It is now trite that if two views are possible, the appellate
court shall not reverse a judgment of acquittal only because
another view is possible to be taken. The appellate court's
...
jurisdiction to interfere is limited. (See M.S. Narayana D
:i Menon and Mahadeo Laxman Sarane v. State of
Maharashtra.) The High Court furthermore has not met the
reasons of the learned trial Judge. It proceeded on the
premise that the appellant had not been able to discharge
his burden of proof in terms of Section 139 of the Act E
without posing unto itself a further question as to how the
said burden of proof can be discharged. It furthermore did
not take into consideration the legal principle that the
standard of proof upon a prosecution and upon an
j accused is different." F
18. In Ghurey Lal v. State of Uttar Pradesh, 3 this Court
while dealing with the scope of exercise of power by appellate
Court against judgment of acquittal under Sections 378 and 386
Cr.P.C., considered a long line of cases viz., Sheo Swarup v.
King Emperor"; Surajpa/ Singh v. State 5 ; Tulsiram Kanu v. G

2. c2008) 1 sec 258.
_,
3. (2008) 1o sec 450.
4. AIR 1934 PC 227.
5. AIR 1952 SC 52.
H
862 SUPREME COURT REPORTS [2009] 5 S.C.R.

A State6 ; Madan Mohan Singh v. State of U.P. 1 ; Atley v. State
of U.P. 8 ; Aher Raja Khima v. State of Saurashtra 9 ; M.G.
Agarwal v. State of Maharashtra 10 ; Noor Khan v. State of
Rajasthan11; Khedu Mohton v. State of Bihar12 ; Shivaji
Sahabrao Bobade v. State of Maharashtra 13 ; Lekha Yadav v.
B State of Bihar14; Bishan Singh v. State of Punjab 15 ; Umedbhai
Jadavbhai v. State of Gujarat16 ; Tota Singh v. State of
Punjab 11 ; Ram Kumar v. State of Haryana 18 ; Bhagwan Singh
v. State of M.P. 19 ; C. Antony v. K. G. Raghavan Nair0; State of
Karnataka v. K. Gopalakarishna 21 ; State of Goa v. Sanjay
C Thakran 22 ; and culled out the following principles:

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

6. AIR 1954 SC 1.
7. AIR 1954 SC 637.
8. AIR 1955 SC 807.
9. AIR 1956 SC 217.
10. AIR 1963 SC 200.
11. AIR 1964 SC 286.
12. (1970) 2 sec 450.
13. (1973) 2 sec 793.
14. (1973) 2 sec 424.
15. (1974) 3 sec 288.
16. (1978) 1 sec 228.
11. (1987) 2 sec 529.
18. (1995) Supp.(1) sec 248.
19. (2002) 4 sec 85.
20. (2003) 1 sec 1.
21. (2005) 9 sec 291.
22. (2007) 3 sec 755.
MAHTAB SINGH & ANR. v. STATE OF U.P. 863
[R.M. LODHA, J.)

2. The accused is presumed innocent until proven guilty. A
The accused possessed this presumption when he was
before the trial court. The trial court's acquittal bolsters the
presumption that he is innocent.

3. Due or proper weight and consideration must be given
8
to the trial court's decision. This is especially true when a
witness' credibility is at issue. It is not enough for the High
Court to take a different view of the evidence. There must
also be substantial and compelling reasons for holding that
the trial court was wrong."
c
19. We agree. The aforesaid principles must be kept in
mind by the appellate court before it ventures to overturn trial
court's judgment of acquittal. Unfortunately in the instant case,
the High Court did not keep the well settled principles in mind
and reversed the judgment of acquittal recorded by the trial court D
when the view taken by the trial court was possible as well as
plausible. The High Court, thus, seriously erred in disturbing the
judgment of acquittal and recording the finding of guilt against
the accused.
E
20. We, accordingly, allow the appeal and set aside the
judgment dated May 27, 2005 impugned in the present appeal.
Mahtab Singh is already on bail, his bail bonds are cancelled.
Jaipal is directed to be released forthwith unless required in
j any other case.

8.8.8. Appeal allowed.