MURUGESAN AND ORS.versusSTATE THROUGH INSPECTOR OF POLICE

                    [2012) 13 S.C.R. 1


                 MURUGESAN AND ORS.                            A
                                v.
       STATE THROUGH INSPECTOR OF POLICE
           (Criminal Appeal No. 53 of 2009)
                    OCTOBER 12, 2012                           B
      [P. SATHASIVAM AND RANJAN GOGOi, JJ.]

     Penal Code, 1860 - ss. 1208, 147, 148, 332 and 302
rlw. ss. 3411091149 - Prosecution under - Of 23 accused -
Acquittal of all the accused by trial court - High Court C
convicting 19 of the accused ulss. 1208 and 302 rlw. ss. 341
149 - Some of the accused also convicted u/s. 332 rlw s. 149
- Two convicts died- On appeal by the remaining 17 convicts,
held: Conviction by High Court not justified - The view taken
by the trial court was a possible view, and could not have been D
interdicted by the High Court - The conclusions reached by
High Court were of fragile nature - The evidence of the two
eye-witnesses, the FIR and the dying declaration were not
trustworthy - Acquittal order passed by trial court confirmed.
                                                               E
     Code of Criminal Procedure, 1973 - s. 378 - Appeal
against acquittal - Power of High Court - Held: Reversal of
acquittal can be done by the High Court only if conclusions
recorded by the trial court do not reflect a possible view - So
long as the view taken by the trial court is not impossible to F
be arrived at and reasons therefor, relatable to the evidence
and materials on record, are disclosed, any further scrutiny
in exercise of the power under s.378 is not called for-Appeal.

     Dying Declaration - Efficacy of - Certification by the
doctor regarding the condition of the deceased must be G
carefully balanced with all other surroundings facts and
circumstances - Evidence Act, 1872 - s. 32.


                                1
                                                               H
                       ..   ~
    2       SUPREME COURT REPORTS             [2012] 13 S.C.R.

A        Appeal- To Supreme Court u/s.379 Cr.P.C. and u/s. 136
    of Constitution of India - Difference between -Explained -
    Code of Criminal Procedure, 1973 - s. 379 - Constitution of
    India, 1950 - Article 136.
     Words and Phrases - Expression 'possible view' -
8 Meaning of.

        The prosecution case was that a land dispute
  between D-2 and A-1 had led to the murder of A-1 S's
  brother for which D-1, D-2 and D-3 were arrayed as
c accused and they were on bail. It was the further case of
  the prosecution that another case was also pending
  against D-1 and D-2 in respect of an incident of bomb
  attack on the rival party. In that case D-1 and D-2 were
  arrested and brought to the court by police constables
0 PW5 and PW7, for execution of their bail bonds. PWs 1,
  2, 3 and 4 alongwith D-3 had come to meet D-1 and D-2
  in the court complex. On the same day, A-14, A-15 and
  A-16, who were also under arrest in another case, were
  brought to the court for further remand. While the other
  accused persons had come to the court complex to meet
E A-14, A-15 and A-16, the said three accused exhorted the
  other accused persons to kill D-1 and D-2, at which they
  inflicted fatal injuries on D-1, D-2 and D-3.
        D-1 had run towards the Police Station near the court
F complex and made a statement (Ex P-1 ), on the basis of
  which FIR was registered. In hospital, D-1 made a Dying
  Declaration on the certification of the Medical Officer (PW-
  21 ). While the Dying Declaration was being recorded, D-
  1 slipped into coma and died thereafter. D-2 and D-3 had
G died on way to the hospital. The police constables (PWs
  5 and 7) were eye-witnesses and they submitted a report
  (Ex P-2) in this regard.
      All the 23 persons arrayed as accused in the instant
  case (A-1 to A-23) were charged u/ss. 1208, 147, 148, 332
H and 302 r/w. ss. 34/109/149 IPC. The trial court acquitted
   MURUGESAN AND ORS. v. STATE THROUGH                   3
          INSPECTOR OF POLICE
all the accused of all the charges. High Court set aside A
the acquittal of A-1 to A-19 and convicted them u/ss. 1208
and 302 r/w s. 34/149 IPC. Some of the accused were also
found guilty u/ss. 148 and 332 r/w. s. 149 IPC. A-6 and A·
11 died in the meanwhile. Hence the present appeal by
the remaining 17 convicts (appellants).                    B

    Allowing the appeal, the Court

     HELD: 1.1 The power of the High Court extends 'to a
review of the entire evidence on the basis of which the
order of acquittal had been passed by the trial court· and C
thereafter to reach the necessary conclusion as to
whether order of acquittal is required to be maintained or
not. An appellate court, however, must bear in mind that
in case of acquittal, there is double presumption in
favour of the accused. Firstly, the presumption of O
innocence is available to him under the fundamental
principle of criminal ]urisprudence that every person shall
be presumed to be innocent unless he is proved guilty
by a competent court of law. Secondly, the accused
having secured his acquittal, the presumption of his E
innocence is further reinforced, reaffirmed and
strengthened by the trial court. If two reasonable
conclusions are possible on the basis of the evidence on
record, the appellate court should not disturb the finding
of acquittal recorded by the trial court. [Paras 14, 16] [15- F
G-H; 16-A; 18-E-F]

     Sheo Swarup v. King Emperor AIR 1934 PC 227 (2);
Tulsiram Kanu v. State AIR 1954 SC 1; Balbir Singh v. State
of Punjab AIR 1957 SC 216; M.G. Agarwal v. State of
Maharashtra AIR 1963 SC 200: 1963 SCR 405; Khedu G
Mohton v. State of Bihar (1970) 2 SCC 450: 1971
(1) SCR 839; Sambasivan v. State of Kera/a (1998) 5 SCC
412: 1998 (3) SCR 280; Bhagwan Singh v. State of M.P.
(2002) 4 SCC 85; State of Goa v. Sanjay Thakran (2007) 3
SCC 755: 2007 (3) SCR 507; Chandrappa and Ors. v. State H
    4       SUPREME COURT REPORTS              [2012) 13 S.C.R.


A of Kamataka 2007 (4) SCC 415: 2007 (2) SCR 630 - relied
  on.

        1.2 The inhibition to interfere must be perceived only
    in a situation where the view taken by the trial court is
   not a possible view. The use of the expression "possible
8
   view" is conscious and not without good reasons. The
   said expression is in contradistinction to expressions
   such as "erroneous view" or "wrong view" which, at first
   blush, may seem to convey a similar meaning though a
C fine and subtle difference would be clearly discer~ible. A
   possible view denotes an opinion which can exist or be
   formed irrespective of the correctness or otherwise of
   such an opinion. A view taken by a court lower in the
   hierarchical structure may be termed as erroneous or
   wrong by a superior court upon a mere disagreement.
D But such a conclusion of the higher court would not take
   the view rendered by the subordinate court outside the
  arena of a possible view. The correctness or otherwise
  of any conclusion reached by a court has to be tested
  on the basis of what the superior judicial authority
E perceives to be the correct conclusion. A possible view,
  on the other hand, denotes a conclusion which can
  reasonably be arrived at, regardless of the fact where it
  is agreed upon or not by the higher court. The
  fundamental distinction between the two situations have
F to be kept in mind. So long as the view taken by the trial
  court can be reasonably formed, regardless of whether
  the High Court agrees with the same or not, the view
  taken by the trial court cannot be interdicted and that of
  the High Court supplanted over and above the view of
G the trial court. [Paras 25 and 27) [24-G; 25-A-D-H; 26-A]
        Oxford English Dictionary - referred to.

      1.3. The reversal of the acquittal can be done by the
  High Court only if the conclusions recorded by the trial
H court did not reflect a possible view. A consideration on
    MURUGESAN AND ORS. v. STATE THROUGH                 5
           INSPECTOR OF POLICE
the basis on which the trial court had founded its order A
of acquittal in the present case clearly reflects a possible
view. There may, however, be disagreement on the
correctness of the same. But that is not the test. So long
as the view taken is not impossible to be arrived at and
reasons therefor, relatable to the evidence and materials B
on record, are disclosed, any further scrutiny in exercise
of the power under Section 378 CrPC is not called for.
[Paras 25 and 28] [24-G; 26-A-B]

      2.1 An appeal to this Court against an order of the
High Court affirming or reversing the order of conviction C
recorded by the trial court is contingent on grant of leave
by this Court under Article 136 of the Constitution.
However, if an order of acquittal passed by the trial court
is to be altered by the High Court to an order of conviction
and the accused is to be sentenced to death or to D
undergo life imprisonment or imprisonment for more than
10 years, leave to appeal to this Court has been dispensed
with and Section 379 Cr.P .C. provides a statutory right of
appeal to the accused in such a case. The aforesaid
distinction, therefore, has to be kept in mind and due E
notice must be had of the legislative intent to confer a
special status to an appeal before this Court against an
order of the High Court altering the acquittal made by the
trial court. [Para 17] [19-A-C]
                                                             F
      State of Rajasthan v. Abdul Mannan 2011 (8) SCC 65:
2011 (7) SCR 1099 - relied on.
    2.2 The conviction of the accused appellants
recorded by the High Court under the different provisions
of the IPC and the sentences imposed cannot be G
sustained. To prove the charge of criminal conspiracy u/
s. 1208 IPC, the prosecution had examined PWs 15, 16
and 17, who did not support the prosecution case in any
manner at all. The view taken by the trial Judge in
                                                            H
    6       SUPREME COURT REPORTS              [2012] 13 S.C.R.


A acquitting the accused was a possible view. As against
    the same, the High Court came to the conclusion that,
    notwithstanding the evidence of PWs 15, 16 and 17, the
    charge of c,rimlnal conspiracy has been established as
    the pro,eecution had succeeded in proving that the
s accvsed persons (except A-14, A-15 and A-16) had come
    t.~ the place of occurrence armed with dangerous
    weapons and at the mere call of the said accused, they
    had attacked 0-1, 0-2 and 0-3 with the weapons that they
    had brought. The conclusion of the High Court is not
C - argreeable. Firstly, if the conclusion recorded by the trial
    court was a possible conclusion, the High Court ought
    not to have ventured further in the matter. Secondly, the
    aforesaid exercise, did not also occasion a correct
    conclusion inasmuch as the presence of the accused at
    the spot armed with weapons and responding to the call
0 of A-14, A-15 and A-16 to attack the deceased, even if
    assumed, in the absence of any further evidence, cannot
    establish a prior arrangement/agreement or a meeting of
    minds amongst the accused to commit the offence of
    murder so as to sustain a charge of criminal conspiracy
E under Section 1208 IPC. [Paras 32, 19 and 20] [28-0-E;
    20-C, E-G; 21-A-C]

      2.3 The plea of alibi set up on behalf of A-4 and A-12
  on the basis of the evidence of OWs 1, 2 and 3 was
F accepted by the trial court by holding that the defence
  evidence tendered in the case was established. Reading
  the evidence of DWs 1, 2 and 3 and the documents
  exhibited in this regard (Ex. 0-4, 0-5, 0-8, 0-9, 0-10) it is
  possible to take a view that aforesaid two accused were
G not present at the place of occurrence at the relevant
  time. The exercise undertaken by the High Court,
  overlooks the basic principle of law in the matter of
  exercise of jurisdiction while hearing an appeal against
  an order of acquittal. Therefore the manner in which the
H
    MURUGESAN AND ORS. v. STATE THROUGH                    7
           INSPECTOR OF POLICE
High Court had dealt with this aspect of the case, cannot       A
be approved. [Para 21) (21-D-F; 22-A-B]

     2.4 So far as the conviction of the accused appellants
under Section 302 and the other provisions of the IPC are
concerned, the conclusions reached by the High Court
                                                                8
in the present case are of fragile nature. The view taken
by the High Court on the aspects of the evaluation of the
evidence of PW1, PW2, PW3 and PW4 and the evidence
of PW5 and PW7 is not acceptable. The evidence of PW-
1, PW-2, PW-3 and PW-4, at best, shows the presence of
the convicted accused and the deceased at the place of          C
occurrence on the day of the incident. Not mentioning the
name of any of the accused in the report submitted to the
c_ourt i.e. Ex. P-2, particularly, when according to PW-5 and
PW-7;-the accused persons were known to them is a vital
lacuna which cannot be explained by confining the               D
scope of the said report as has been done by the High
Court. At the same time, the narration of the names of
several of the accused in the examination of PW-5 and
PW-7 in court, would amount to an improvement or an
exaggeration on the part of the prime witnesses of the          E
prosecution thereby casting a serious doubt on their
reliability. The failure on the part of PW-5 and PW-7 to use
the fire arms issued to them despite an assault committed
by as many as 23 persons resulting to the death of three,
as the prosecution has alleged, is both mysterious and          F
inexplicable. So is the registration of the FIR under
Section 302 IPC at 3.15 p.m. when the deceased persons
were still alive. [Paras 29, 30 and 31] [26-F-H; 27-A-E-G;
28-A-B]
    2.5 The efficacy of the dying declaration (Ex. P-4)         G
when the maker thereof had slipped into a coma, even
before completing the statement, would have a serious
effect on the capacity of D-1 to make such a statement.
The certification made by PW-21 with regard to the
                                                                H
    8       SUPREME COURT REPORTS             (2012] 13 S.C.R.


A · condition of the deceased is definitely not the last word.
    Though ordinarily and in the normal course, such an
    opinion should be accepted and acted upon by the court,
    in cases, where the circumstances so demand such
    opinions must be carefully balanced with all other
8 surrounding facts and circumstances. [Para 31) [28-B-D]
                        Case Law Reference:
        AIR 1934 PC 227 (2)      Relied on            Para 15
        AIR 1954 SC 1            Relied on            Para 15
c
        AIR 1957 SC 216          Relied on            Para 15
        1963 SCR 405             Relied on            Para 15
        1971 (1) SCR 839         Relied on            Para 15
D       1998 (3) SCR 280         Relied on            Para 15
        (2002) 4 sec 85          Relied on            Para 15
        2007 (3) SCR 507         Relied on            Para 15
        2007 (2) SCR 630         Relied on            Para 16
E
        2011 (7) SCR 1099        Relied on            Para 17
        CRIMINAL APP ELLATE JURISDICTION : Criminal Appeal
    No. 53 of 2009.
F        From the Judgment & Order dated 04.09.2008/19.09.2008
    of the Madurai Bench of Madras High Court in Criminal Appeal
    No. 713 of 2000.
        V. Kanagaraj, V.G. Pragasam, S.J.            Aristotle,
    Praburamasubramanian for the Appellants.
G
        Guru Krishna Kumar, AAG, 8. Balaji, Prasana Venkat,
    Veeramani for the Respondent.
        The Judgment of the Court was delivered by
H       RANJAN GOGOi, J. 1. This appeal, under Section 379
    MURUGESAN AND ORS. v. STATE THROUGH                        9
    INSPECTOR OF POLICE [RANJAN GOGOi, J.)

of the Code of Criminal Procedure, 1973 is against the order        A
of the High Court of Madras reversing the acquittal of the
appellants and convicting and sentencing each one of them
under different Sections of the Indian Penal Code (hereinafter
shall be referred to as 'IPC'). All the accused persons have
been convicted under Section 120 B of the IPC and sentenced         B
to undergo rigorous imprisonment for a period of seven years
each. The accused appellants have also been found guilty under
Section 302 of IPC for their individual acts or constructively
under Section 34/149 IPC for commission of the said offence.
They have been accordingly sentenced to undergo rigorous            c
imprisonment for life. Some of the appellants have also been
found guilty of the offences under Section 148 and Section 332
read with Section 149 IPC for which sentence of rigorous
imprisonment of three years have been imposed. Aggrieved
the present appeal has been filed.
                                                                    D
     2. For the sake of clarity reference to the accused is
hereinafter being made in the chronological order arranged in
the proceedings of the trial and the three deceased, i.e.,
Veeraperumal, Karumpuli and Madaswamy are being referred
to as D-1, D-2 and D-3 respectively.                                E
      The case of the prosecution, in short, is that there was a
 land dispute between Karumpuli (D-2) and his family and A-1,
Thirumani, and his party. There were civil litigations between
the parties over the said property. According to the prosecution,
on account of the aforesaid dispute, the younger brother of the     F
accused No.15 was murdered and in the said case D-1, D-2
and D-3 were arrayed as accused. At the relevant point of time,
the three deceased persons were on bail. There was another
case pending against D-1 and D-2 in respect of an incident of
a bomb attack on the rival party. In connection with the said       G
case, the aforesaid two deceased who were arrested were
brought to the court of the Judicial Magistrate, Vilathikulam on
the day of the occurrence, i.e. 22.09.1991 for execution of the
bail bonds etc. so as to enable them to be released on bail.
Thiru Bagavati (PW-1), Alagar (PW-2), Periyasami (PW-3) and         H
    10       SUPREME COURT REPORTS               [2012] 13 S.C.R.


A Kalimuthu (PW-4) along with D-3 had come to meet D-1 and
   D-2 in the court complex. On the same day, A-14, A-15, and
  A-16 who were also under arrest in another case were brought
  by the police to the court complex for purpose of further remand.
  The other accused persons had come to see A-14, A-15, and
s A-16. Both the groups, including the deceased and the accused
  who were brought from jail, were engaged in their respective
  conversations. According to the prosecution, at a point of time
  between 2.00 p.m. and 3.00 p.m., A-14, A-15 and A-16 asked
  the other members of the accused party who had come to meet
c them to finish off D-1 and D-2. On being so instigated,
  according to the prosecution, the other members of the
  accused party inflicted fatal injuries on D-1, D-2 and D-3. It is
  the further case of the prosecution that D-1, on being inflicted
  injuries by the accused persons, ran towards the Police Station,
  situated near the court complex and made a statement (Ex. P-
0
  1) based on which the FIR (Ex. 22) was registered by PW-27.
  Thereafter, the FIR was sent to the Court of Judicial Magistrate,
  Vilathikulam which was received at about 5.00. p.m. on the
  same day.
E       The injured D-1 was shifted to the Government Hospital
  and on an intimation being sent by PW-20 Dr. Rajaram (Raj
  Mohan), Assistant Civil Surgeon attached to Government
  Hospital, the learned Judicial Magistrate (PW-6) came to the
  hospital to record the dying declaration of the injured,
F Veeraperumal. According to the prosecution, while his
  statement was being recorded, D-1, slipped into a coma and,
  thereafter, died at about 4.07 p.m. The dying declaration (Exh
  P-4) was recorded in the presence of Paulsama, Medical
  Officer (PW-21) who had certified that the injured (D-1) was in
G a fit condition to make the statement. It is the further case of
  the prosecution that the other injured namely, Karumpulli and
  Madasamy were also brought to the hospital but had died on
  the way.
      It is further alleged by the prosecution that D-1 and D-2
H were brought to the court complex from the jail premises by
    MURUGESAN AND ORS. v. STATE THROUGH                        11
    INSPECTOR OF POLICE [RANJAN GOGOi, J.]
Police Constables Sankaranarayanan (PW-5) and                       A
Shanmugaraj (PW-7). Both the aforesaid police constables,
according to the prosecution, were eye-witnesses to the
occurrence and they had submitted a report to the Judicial
Magistrate, Vilathikulam (Ex. P-2) in this regard. The
prosecution has further alleged that in the course of the attack    B
by A-1 Thirumani, A-5 had also sustained injuries for which A-
5 had filed a complaint and he was medically examined. The
prosecution also claims that at the instance of A-7, five aruvals
were recovered.
       3. On the completion of the investigation, charge sheet C
 was submitted against all the accused under different Sections
 of the IPC. The offences alleged being triable by the Court of
 Sessions, the case was committed for trial to the Court of the
 learned Sessions Judge, Tuticorin. The learned trial court
 framed charges against the present appellants (17 in number)       o
 and six others under Sections 120 B, 147, 148, 332 and 302
 read with Section 34/109/149 of the IPC. The accused having
 pleaded not guilty were tried. In the trial held, 30 witnesses were
 examined by the prosecution who had also exhibited a large
 number of documents besides as many as 20 material objects. E
 Three witnesses were examined on behalf of the defence and
 as many as 10 documents were also exhibited. The learned
trial Judge by the judgment and order dated 16.04.1988 held
 that the charges levelled against the accused persons have not
been proved beyond all reasonable doubt. Accordingly, all the F
23 accused were acquitted. On an appeal being filed by the
 State, the High Court by the impugned judgment and order
dated 04-09-2008/19-09-2008 had set aside the acquittal of
A-1 to A-19 and convicted them under different Sections of the
IPC. The acquittal ordered by the learned trial court in respect
of A-20, A-21, A-22, and A-23 was, however, maintained by G
the High Court. Of the 19 accused who have been convicted
by the High Court, A-6 and A-11 have died in the mean time.
Consequently, it is the 17 accused persons against whom the
order of conviction continues to be effective who have instituted
the present appeal.                                                  H
    12      SUPREME COURT REPORTS                [2012] 13 S.C.R.


A       4. A reading of the judgment dated 16.04.1998 passed by
  the learned trial court indicates that the learned court did not
  consider it prudent to act on the evidence of PW-1 inasmuch
  as it was found that there are certain innovations in the evidence
  tendered by the said witness who is also closely related to at
B least two of the deceased persons. PW-2, PW-3 and PW-4 not
  having supported the prosecution case and having been
  declared hostile, the learned trial court thought it proper not to
  place any reliance whatsoever on the testimony of the said
  witnesses. The evidence of PW-5 and PW-7, the Police
c constables who had escorted D-1 and D-2 to the court complex
  from the prison, was elaborately considered by the learned trial
  court before coming to the conclusion that the evidence of the
  two aforesaid witnesses did not inspire the confidence of the
  court. The detailed reasons which had persuaded the trial court
0 to take the above view will be noticed in the discussions that
  will follow.

       5. Coming to Ex. P-1, (complaint lodged by D-1 in the
  police station immediately after the incident) and the formal FIR
  lodged on that basis (Ex. P-22) the learned trial court was of
E the opinion that the said documents do not accurately reflect
  the situation as claimed to have taken place in view of the fact
  that FIR under Section 302 IPC was registered at 3.15 pm when
  the victims of the alleged assault were still alive.

F       6. In so far as Ex. P-2, i.e., the report lodged by PWs-5
  and 7 before the Judicial Magistrate is concerned, the learned
  trial court was of the view that the involvement of any of the
  accused have not been mentioned in the said report which
  renders the same open to grave suspicion and doubt, besides
G affecting the oral testimony of PW-5 and PW-7 tendered in court
  later i.e. after five years wherein the names of the alleged
  attackers, i.e., the accused have been mentioned with complete
  certainty and precise accuracy. The dying declaration (Ex. P-
  4) of D-1 was also considered unsafe to be relied upon in view
H
     MURUGESAN AND ORS. v. STATE THROUGH                       13
     INSPECTOR OF POLICE [RANJAN GOGOi, J.]

 of the fact that the names of only three of the accused have       A
 been recorded in the dying declaration in contrast to the names
 of 11 accused that finds mention in Ex. P-1 and that charge
 sheet was eventually filed against 23 accused persons.
     7. The learned trial court also considered the evidence of
                                                                  8
DW-1, DW-2, and DW-3 to hold that the said evidence proved
and established the presence of A-4 in the office of the Sub-
Registrar and A-12 in ITI, Thoothukudi rather than at the place
of the occurrence at the time of the incident. The learned trial
court, on the said finding, held the prosecution case to be false
to the extent disproved by the defence evidence. It is on the C
aforesaid broad basis that the learned trial court thought it fit
to come to the conclusion that in the present case the
involvement of any of the accused has not been proved beyond
reasonable doubt. Consequently, the learned court thought it
proper to acquit all the accused persons from all such charges D
that had been levelled against them by the prosecution.
       8. Specifically in so far as the charge of criminal
 conspiracy under Section 120 B IPC is concerned, the learned
 trial court took into account the evidence of A-15, A-16 and A- E
 17, all of whom denied what the prosecution had alleged,
 namely, that on the day previous to the incident i.e. 21.09.1991,
 there was a meeting in the village where all the accused
 persons (except A-14, A-15 and A-16) had planned and
 conspired to murder D-1 and D-2 on the next day when they
were to be brought to Court. In this regard, the learned trial court F
also took into account the statement made by the learned
Public Prosecutor virtually admitting that, on the evidence
adduced, no case of criminal conspiracy have been made out
against any of the accused. In so far as A-20 to A-23 are
concerned the learned trial court specifically came to the G
conclusion that no evidence whatsoever had been adduced by
the prosecution to show the presence of any of the aforesaid
accused persons at the time and place of occurrence.
    9. The very elaborate judgment of the learned trial court       H
    14      SUPREME COURT REPORTS                 [2012) 13 S.C.R.


A has been considered in an equally elaborate and exhaustive
  discourse by the High Court in the appeal filed by the State of
  Tamil Nadu. In so far as the charge under Section 1208 is
  concerned, the High Court was of the view that the materials
  on record had established that all the accused persons (except
B A-14, A-15 and A-16) had come to the court complex armed
  with dangerous weapons which was indiscriminately used on
  the victims merely at the call of A-14 to A-16. The said evidence,
  according to the High Court, conclusively proved the
  commission of the offence under Section 120 B of the IPC. The
c High Court was of the view that such a conclusion is the
  inevitable result of the process of inference by which proof of
  commission of the offence of crimlnal conspiracy was required
  to be reached in the present case.

        10. In so far as the other offences are concerned, the High
D Court, after noticing the evidence adduced by the prosecution
  witnesses and the several documents brought on record, took
  the view that PW-2, PW-3 and PW-4, though were declared
  hostile, had supported the prosecution, at least to the extent that
  the three deceased persons and all the convicted accused were
E present in the court complex on the date and at the time when
  the occurrence is alleged to have taken place. Reliance to the
  aforesaid extent on the evidence tendered by the hostile
  witnesses, according to the High Court, is permissible in law
  and therefore the aforesaid part of the evidence could not be
F discarded in toto. The High Court, for the reasons set out in
  the impugned judgment, came to the conclusion that the
  evidence tendered by PW-5 and PW-7 is trustworthy and
   reliable. While the detailed reasons in this regard will be noticed
  in the subsequent paragraphs of this order along with the
G reasons set out by the learned trial court for taking the opposite
  view, once the aforesaid conclusion i.e. that PW-5 and PW-7
  are reliable and trustworthy was reached by the High Court, the
   prosecution case had assumed an entirely different complexion.
   Proceeding further, the High Court also considered the
H evidentiary worth of the documents exhibited by the prosecution
      MURUGESAN AND ORS. v. STATE THROUGH                       15
      INSPECTOR OF POLICE [RANJAN GOGOi, J.]
 as Ex.P-1, Ex.P-2 and Ex.P-4 and held the said documents to         A
 be aiding the prosecution case. The doubts expressed by the
 learned trial court with regard to the said documents were
 answered by the High Court to be of no consequence for
 reasons that we will shortly notice and consider.
      11. Coming to the defence evidence, the High Court was         8
of the view that the evidence tendered by DW-1, DW-2, DW-3
did not conclusively prove the plea of alibi advanced on behalf
of A-4 and A-12, inasmuch as such evidence did not establish
the presence of the aforesaid two accused at the places
claimed by them. However, in so far as A-20 to ·A-23 are             C
concerned the High Court agreed with the findings of the
learned trial court. Accordingly, while maintaining the acquittal
of the aforesaid accused persons, i.e. A-20 to A-23, the High
Court was of the view that the acquittal of all the other accused
should be reversed and they are liable to be convicted for           D
different offences, details of which have already been noticed.
Thereafter, upon hearing each of the accused persons, the
sentences in question, as already noted, were awarded.
      12. We have heard Shri V. Kanagaraj, learned senior
counsel for the appellants and Shri Guru Krishna Kumar, AAG          E
for the State. We have given our anxious consideration to the
submissions made on behalf of the rival parties and we have
carefully considered the oral and documentary evidence
adduced by the parties in the course of the trial.
                                                                     F
     13. Before proceeding any further it will be useful to recall
the broad principles of law governing the power of the High
Court under Section 378 Cr.PC, while hearing an appeal
against an order of acquittal passed by a trial Judge.
     14. An early but exhaustive consideration of the law in this    G
regard is to be found in the decision of Sheo Swarup v. King
Emperor1 wherein it was held that the power of the High Court
extends to a review of the entire evidence on the basis of which

1.   AIR 1934 PC 227 (2).                                            H
    16      SUPREME COURT REPORTS                 [2012] 13 S.C.R.


A the order of acquittal had been passed by the trial court and
  thereafter to reach the necessary conclusion as to whether order
  of acquittal is required to be maintained or not. In the opinion
  of the Privy Council no limitation on the exercise of power of
  the High Court in this regard has been imposed by the Code
B though certain principles are required to be kept in mind by the
  High Court while exercising jurisdiction in an appeal against an
  order of acquittal. The following two passages from the report
  in Sheo Swarup (supra) adequately sum up the situation:

         "There is in their opinion no foundation for the view,
c        apparently supported by the judgments of some Courts in
         India, that the High Court has no power or jurisdiction to
         reverse an order of acquittal on a matter of fact, except in
         cases in which the lower Court has "obstinately blundered,"
         or has "through incompetence, stupidity or perversity"
D        reached such "distorted conclusions as to produce a
         positive miscarriage of justice," or has in some other way
         so conducted itself as to produce a glaring miscarriage
         of justice, or has been tricked by the defence so as to
         produce a similar result.
E        Sections 417, 418 and 423 of the Code give to the High
         Court full power to review at large the evidence upon which
         the order of acquittal was founded, and to reach the
         conclusion that upon that evidence the order of acquittal
         should be reversed. No limitation should, 'be placed, upon
F        that power, unless, it be found expressly stated in the
         Code. But in exercising the power conferred by the Code
         and before reaching its conclusions upon fact, the High
         Court should and will always give proper weight and
         consideration to such matters as (1) the views of the trial
G        Judge as to the credibility of the witnesses; (2) the
         presumption of innocence in favour of the accused, a
         presumption certainly not weakened by the fact that he has
         been acquitted at his trial; (3) the right of the accused to
         the benefit of any doubt; and (4) the slowness of an
H        appellate Court in disturbing a finding of fact arrived at by
      MURUGESAN AND ORS. v. STATE THROUGH                     17
      INSPECTOR OF POLICE [RANJAN GOGOi, J.]
      a Judge who had the advantage of seeing the witnesses.        A
      To state this however is only to say that the High Court in
      its conduct of the appeal should and will act in accordance
      with rules and principles well known and recognized in the
      administration of justice.
                                                                    B
                                (page 229 of the report)"
     15. The principles of law laid down by the Privy Council in
Sheo Swarup (supra) has been consistently followed by this
Court in a series of subsequent pronouncements of which
reference may be illustratively made to the following:              c
      Tulsiram Kanu v. State2, Balbir Singh v. State of Punjab 3,
      M. G. Agarwal v. State of Maharashtra4, Khedu Mohton v.
      State of Bihar6, Sambasivan v. State of Kerala 6, Bhagwan
      Singh v. State of M.P. 7 and State of Goa v. Sanjay
      Thakran 8 .                                                   0

     16. A concise statement of the law on the issue that had
emerged after over half a century of evolution since Sheo
Swarup (supra) is to be found in para 42 of the report in
Chandrappa & Ors. v. State of Kamataka 9 • The same may,            E
therefore, be usefully noticed below:

      "42. From the above decisions, in our considered view, the
      following general principles regarding powers of the
      appellate court while dealing with an appeal against an
      order of acquittal emerge:                                    F

             (1) An appellate court has full power to review, re-
2.   AIR 1954 SC 1
3:   AIR 1957 SC 216.
4.   AIR 1963 SC 200.                                               G
5.   (1970) 2 sec 450.
6.   (1998) 5 sec 412.
7.   c2002) 4 sec 85.
8.   (2007) 3 sec 755.
9.   2001 (4) sec 415.                                              H
    18   SUPREME COURT REPORTS               [2012] 13 S.C.R.

A         appreciate and reconsider the evidence upon which
          the order of acquittal is founded.
          (2) The Code of Criminal Procedure, 1973 puts no
          limitation, restriction or condition on exercise of
B         such power and an appellate court on the evidence
          before it may reach its own conclusion, both on
          questions of fact and of law.
          (3) Various expressions, such as, "substantial and
          compelling reasons", "good and sufficient grounds",
c         "very strong circumstances", "distorted conclusions",
          "glaring mistakes", etc. are not intended to curtail
          extensive powers of an appellate court in an appeal
          against acquittal. Such phraseologies are more in
          the nature of "flourishes of language" to emphasise
D         the reluctance of an appellate court to interfere with
          acquittal than to curtail the power of the court to
          review the evidence and to come to its own
          conclusion.
          (4) An appellate court, however, must bear in mind
E
          that in case of acquittal, there is double
          presumption in favour of the accused. Firstly, the
          presumption of innocence is available to him under
          the fundamental principle of criminal jurisprudence
          that every person shall be presumed to be innocent
F         unless he is proved guilty by a competent court of
          law. Secondly, the accused having secured his
          acquittal, the presumption of his innocence is further
          reinforced, reaffirmed and strengthened by the trial
          court.
G
          (5) If two reasonable conclusions are possible on
          the basis of the evidence on record. the appellate
          court should not disturb the finding of acquittal
          recorded by the trial court."
H                                          (emphasis is ours)
    MURUGESAN AND ORS. v. STATE THROUGH                         19
    INSPECTOR OF POLICE [RANJAN GOGOi, J.]
     17. Another significant aspect of the law in this regard         A
which has to be noticed is that an appeal to this Court against
an order of the High Court affirming or reversing the order of
conviction recorded by the trial court is contingent on grant of
leave by this Court under Article 136 of the Constitution.
However, if an order of acquittal passed by the trial court is to     B
be altered by the High Court to an order of conviction and the
accused is to be sentenced to death or to undergo life
imprisonment or imprisonment for more than 10 years, leave
to appeal to this Court has been dispensed with and Section
379 of the Code of Criminal Procedure, 1973, provides a               c
statutory right of appeal to the accused in such a case. The
aforesaid distinction, therefore, has to be kept in mind and due
notice must be had of the legislative intent to confer a special
status to an appeal before this court against an order of the
High Court altering the acquittal made by the trial court. The
                                                                      0
issue had been dealt with by this Court in State of Rajasthan
v. Abdul Mannan 10 in the following terms, though in a different
context:
      "12. As is evident from the above recorded findings, the
      judgment of conviction was converted to a judgment of           E
      acquittal by the High Court. Thus, the first and foremost
      question that we need to consider is, in what circumstances
      this Court should interfere with the judgment of acquittal.
      Against an order of acquittal, an appeal by the State is
      maintainable to this Court only with the leave of the Court.    F
      On the contrary, if the judgment of acquittal passed by the
      trial court is set aside by the High Court, and the accused
      is sentenced to death, or life imprisonment or
      imprisonment for more than 10 years, then the right of
    · appeal of the accused is treated as an absolute right           G
      subject to the provisions of Articles 134(1 )(a) and
      134(1)(b) of the Constitution of India and Section 379 of
      the Code of Criminal Procedure, 1973. In light of this, it is
      obvious that an appeal against acquittal is considered on
10. 2011 (8) sec 65.                                                  H
    20        SUPREME COURT REPORTS                  [2012] 13 S.C.R.


A        slightly different parameters compared to an ordinary
         appeal preferred to this Court."

         18. Having dealt with the principles of law that ought to be
    kept in mind while considering an appeal against an order of
    acquittal passed by the trial court, we may now proceed to
8
    examine the reasons recorded by the trial court for acquitting
    the accused in the present case and those that prevailed with
    the High Court in reversing the said conclusion a.id in convicting
    and sentencing the accused appellants.

C         19. Insofar as the charge of criminal conspiracy under
    Section 1208 IPC is concerned, there is no doubt and dispute
    that to prove the said charge the prosecution had examined
    PWs 15, 16 and 17 who did not support the prosecution case
    in any manner at all. In fact, each of the aforesaid three
o   witnesses categorically denied that they had made any
    statement before the Investigating Officer with regard to any
    agreement amongst the accused on 21.09.1991 to commit the
    murder of D-1 and D-2 on the next day when they were to be
    brought to the court. In fact it was noted by the learned trial court
E   that the public prosecutor has virtually conceded that the
    evidence on record did not establish the charge of criminal
    conspiracy against any of the accused. The learned trial Judge,
    therefore, acquitted all the accused of the said charge. The view
    taken by the learned trial Judge was definitely a possible view.
    As against the same, the High Court came to the conclusion
F   that, notwithstanding the evidence of PWs 15,16 and 17, the
    charge of criminal conspiracy has been established as the
    prosecution had succeeded in proving that the accused persons
    (except A-14, A-15 and A-16) had come to the place of
    occurrence armed with dangerous weapons and at the mere
G   call of the said accused, they had attacked D-1, D-2 and D-3
    with the weapons that they had brought. In this regard, the High
    Court relied on the fact that it is an established proposition of
    law that direct evidence of criminal conspiracy would rarely be
    forthcoming and a conclusion in this regard has to be, largely,
H   inferential.
     MURUGESAN AND ORS. v. STATE THROUGH                        21
     INSPECTOR OF POLICE [RANJAN GOGOi, J.]
      20. On a careful consideration of this aspect of the case,      A
we find ourselves unable to agree with the conclusion of the
High Court. Firstly, if the conclusion recorded by the learned
trial court was a possible conclusion, the High Court ought not
to have ventured further in the matter. Secondly, the aforesaid
exercise, in our considered view, did not also occasion a             B
correct conclusion inasmuch as the presence of the accused
at the spot armed with weapons and responding to the call of
A-14, A-15 and A-16 to attack the deceased, even if assumed,
in the absence of any further evidence, cannot establish a prior
arrangement/agreement or a meeting of minds amongst the               C
accused to commit the offence of murder so as to sustain a
charge of criminal conspiracy under Section 1208 IPC.
     21. Before going into the main issue in the case, namely,
the culpability of any or all the accused under Section 302 IPC
either on the basis of constructive liability under Sectior. 34/149   D
IPC or on the basis of the individual acts of the accused, an
incidental aspect of the case with regard to the plea of alibi set
up by A-4 and A-12 can be conveniently dealt with at this stage.
The plea of alibi set up on behalf of the aforesaid two accused
on the basis of the evidence of DWs - 1, 2 and 3 was accepted         E
by the learned trial court by holding that the defence evidence
tendered in the case had established that at the time of the
occurrence A-12 was in the ITI, Tuticorin whereas A-4 was in
the office of the Sub-Registrar, Tuticorin. Reading the evidence
of DWs - 1, 2 and 3 and the documents exhibited in this regard        F
(Ex. D-4, D-5, D-8, D-9, D-10) it is possible to take a view that
aforesaid two accused were not present at the place of
occurrence at the relevant time. The High Court answered the
aforesaid issue by stating that as it was admitted by DW-1 in
cross-examination that a student could leave the college after        G
being marked present in the attendance register and as the
sale deed (Ex. D-5) claimed to have been executed by A-4 in
Tuticorin at the time of the incident did not specify the time of
execution, the plea of alibi set up by A-4 and A-12 was not
satisfactorily proved.
                                                                      H
    22       SUPREME COURT REPORTS               [2012] 13 S.C.R.


A      The exercise undertaken by the High Court, once again,
  overlooks the basic principle of law that this Court has
  repeatedly emphasized in the matter of exercise of jurisdiction
  while hearing an appeal against an order of acquittal passed
  by the trial court. We are, therefore, unable to accord our
B approval to the manner in which the High Court had dealt with
  this aspect of the case.

       22. This would now require us to consider the main issue
  in the case, namely, the liability of the accused appellants under
  the provisions of IPC other than those dealt with in the
C discussions that have preceded.

       The trial court considered it prudent to view the testimony
  of PW-1 with great care and circumspection as the said
  witness is the younger brother of one of the deceased. The
D learned trial court also took into account the fact that PW-1,
  though examined as an eye witness, could not specifically say
  as to which accused had assaulted which particular deceased
  and the weapon(s) used. That apart, the learned trial court took
  into account the fact that PW-1 had sought to implicate the
E acquitted A-20 to A-23 who, admittedly, were not present at the
  place of occurrence as stated by the investigating officer of the
  case examined as PW-30.
       The learned trial court while considering the evidence of
  PW-2, PW-3, and PW-4, took into account the fact that all the
F said witnesses are closely related to the deceased and that
  they were declared hostile by the prosecution. Specifically, it
  was noticed by the learned trial court that PW-2 had stated that
  immediately after incident had occurred he had run away from
  the place and had mingled with the crowd. PW-2 had further
G stated that he had not seen who had hacked whom. PW-3, it
  was noticed by the learned trial, had stated that he had returned
  to the place of the incident after taking lunch and, therefore, he
  did not see the occurrence. On the other hand, PW-4 had
  stated that the assault was committed by a group of men and
H had not named any particular accused. In such circumstances
    MURUGESAN AND ORS. v. STATE THROUGH                         23
    INSPECTOR OF POLICE [RANJAN GOGOi, J.]
the learned trial court came to the conclusion that the conviction    A
of any of the accused under Section 302 IPC either for their
individual acts or on the principle of constructive liability under
Section 34/149 IPC would not be warranted on the basis of the
evidence of PWs 1 to 4.
                                                                      8
      23. The learned trial court, thereafter, proceeded to
examine the evidence of PW-5 and PW-7, the police
constables who had escorted D-1 and D-2 to the court
complex. On such consideration, the learned trial court came
to the finding that the evidence of PW-5 regarding pelting of
stones on him and PW-7 by some of the accused was                     C
unacceptable as no resultant injuries are recorded in the wound
certificates (Ex. P-15 and P-16). In this regard, the learned trial
court also noticed that the injuries mentioned in the aforesaid
wound certificates were caused by aruval and knife and ,further,
that neither PW-5 nor PW-7 had informed the doctor about any          D
injuries being caused by pelting of stones. The apparently false
involvement of A-20 to A-23 in the incident made by PWs - 5
and 7; the wrong identification of several of the accused made
in court by PW-5 and PW-7; the absence of any test
identification parade are the other circumstances that was taken      E
note of by the learned trial court to arrive at the conclusion that
the evidence of PW-5 and PW-7 is not reliable. The injuries on
PW-5 claimed to have been caused by an aruval was also
found by the learned trial court not to be free from doubt or
ambiguity. This is because, according to PVv-5, he had tried          F
to prevent the blow dealt with the aruval by A-17, which fell on
the 'rifle but' carried by him and had also injured him on the
left hand. The rifle carried by PW-5, however, was not exhibited
in the trial. Moreover, according to the prosecution, D-1 was
examined at about 3.25 p.m and PW-5 and PW-7 were                     G
examined between 4.05 and 4.15 p.m. PW-5 in his deposition
had, however, stated that he along with PW-7 was treated
around 5.45 - 6.00 p.m. and at that time D-1 was also in the
hospital undergoing treatment. All these facts were duly taken
note of along with the oral and documentary evidence adduced
                                                                      H
I




        24       SUPREME COURT REPORTS                  (2012) 13 S.C.R.


    A by the prosecution to show that D-1 had died at 4.07 PM.
              24. Apart from the above inconsistencies which were
        considered by the learned trial court to be grave and severe,
        the fact that the FIR registered at 3.15 p.m. was so registered,
        inter alia, under Section 302 IPC though, admittedly, the
    6
        deceased persons were alive at that time was also taken note
        of by the learned trial court as being a significant aspect of the
        case which required an explanation from the prosecution which
        was not forthcoming. The discrepancies between Ex. P-1
        wherein 11 accused were named and Ex. P-2 where none of
    C   the accused were named and the contents of Ex. P-4 where
        only three accused were named were duly taken note of by the
        learned trial court apart from the fact that in Ex. P-2 it had been
        stated that 4-5 persons from outside had come and committed
        the assault. The prosecution had alleged that A-5 had received
    D   cut injuries on his forehand and 4 of his fingers had been
        severed due to an aruval blow aimed by A-1 on D-1 which fell
        on A-5. The fact that the FIR filed with regard to injuries caused
        to A-5 by A-1 had ended in a closure report had also been
        considered by the leaned trial court. The non-examination of
    E   any disinterested witnesses though several such persons had
        witnessed the incident is an additional circumstance that was
        relied upon by the learned trial court to come to the conclusion
        that the accused appellants should be exonerated of the
        charges levelled against them.
    F
            25. In the above facts can it be said that the view taken by
      the trial court is not a possible view? If the answer is in the
      affirmative, the jurisdiction of the High Court to interfere with the
      acquittal of the accused appellants, on the principles of law
    G referred to earlier, ought not to have been exercised. In other
      words, the reversal the acquittal could have been made by the
      High Court only if the conclusions recorded by the learned trial
      court did not reflect a possible view. It must be emphasized that
      the inhibition to interfere must be perceived only in a situation
      where the view taken by the trial court is not a possible view.
    H The use of the expression "possible view" is conscious and not
    MURUGESAN AND ORS. v. STATE THROUGH                       25
    INSPECTOR OF POLICE [RANJAN GOGOi, J.]
without good reasons. The said expression is in A
contradistinction to expressions such as "erroneous view" or
''wrong view" which, at first blush, may seem to convey a similar
meaning though a fine and subtle difference would be clearly
discernible.
                                                                  B
     26. The expressions "erroneous", "wrong" and "possible"
are defined in the Oxford English dictionary in the following
terms:
     "erroneous            wrong;incorrect.
     wrong                 1. not correct or true, mistaken
                                                                   c
                            2. unjust.dishonest or immoral
     possible              1. capable of existing, happening,
                           or being achieved.
                           2. that may exist or happen, but        D
                            that is not certain or probable."
     27. It will be necessary for us to emphasize that a possible
view denotes an opinion which can exist or be formed
irrespective of the correctness or otherwise of such an opinion. E
A view taken by a court lower in the hierarchical structure may
be termed as erroneous or wrong by a superior court upon a
mere disagreement. But such a conclusion of the higher court
would not take the view rendered by the subordinate court
outside the arena of a possible view. The correctness or F
otherwise of any conclusion reached by a court has to be tested
on the basis of what the superior judicial authority perceives
to be the correct conclusion. A possible view, on the other hand,
denotes a conclusion which can reasonably be arrived at
regardless of the fact where it is agreed upon or not by the
higher court. The fundamental distinction between the two G
situations have to be kept in mind. So long as the view taken
by the trial court can be reasonably formed, regardless of
whether the High Court agrees with the same or not, the view
taken by the trial court cannot be interdicted and that of the High
                                                                    H
    26       SUPREME COURT REPORTS               [2012] 13 S.C.R.


A   Court supplanted over and above the view of t~e trial court.
         28. A consideration on the basis on which the learned trial
    court had founded its order of acquittal in the present case
    clearly reflects a possible view. There may, however, be
    disagreement on the correctness of the same. But that is not
8
    the test. So long as the view taken is not impossible to be
    arrived at and reasons therefor, relatable to the evidence and
    materials on record, are disclosed any further scrutiny in
    exercise of the power under Section 378 Cr.P.C. was not called
    for.
c
       29. However, as the High Court had embarked upon an
  in-depth consideration of the entire evidence on record and had
  arrived at conclusions contrary to those of the trial court, the
  discussions now will have to centre around the basis disclosed
o by the order of the High Court for reversing the acquittal of the
  accused appellants. The grounds that had prevailed upon the
  High Court to hold that the commission of the offence of criminal
  conspiracy under Section 120 B IPC have been proved by the
  prosecution in the present case have already been noticed. Our
E reasons for disagreeing with the said view of the High Court
  have also been indicated hereinabove. Similarly, the reasons
  for our disagreement with the conclusion of the High Court that
  the defence evidence adduced in the case did not satisfactorily
  establish the plea of alibi put forward by A-4 and A-12 have
  also been indicated. The aforesaid aspects of the case,
F therefore, would not need any further dilation and it is the
  reasons for the conviction of the accused appellants under
  Section 302 and the other provisions of the IPC will be required
  to be noticed by us.
G      30. The High Court has concluded that the evidence of
  PW-1, PW-2, PW-3 and PW-4 have supported the prosecution
  case to a certain extent and the said fact could not have been
  ignored only because PW-2, PW-3 and PW-4 were declared
  hostile. Even if the aforesaid reasoning of the High Court is to
H be accepted what would logically follow there from is that the
    MURUGESAN AND ORS. v. STATE THROUGH                      27
    INSPECTOR OF POLICE [RANJAN GOGOi, J.]

evidence of PW-1, PW-2, PW-3 and PW-4, at best, shows the A
presence of the convicted accused and the deceased at the
place of occurrence on the day of the incident. In so far as the
evidence of PW-5 and PW-7 is concerned, the High Court was
of the view that the failure to mention the names of any of the
convicted accused in Ex. P-2 can be explained by the fact that B
PW-5 and PW-7 must have been in a state of shock and,
furthermore, Ex. P-2 was a report to the Magistrate, not of the
incident as such, but a report of what had happened to the
prisoners who were brought by PW-5 and PW-7 from the jail
for production in the court. llhe errors on the part of PW-5 and . c
PW-7 in identifying some of the accused in Court have been
understood by the High Court to be on account of the long lapse
of time between the incident and date of their examination in
Court (5 years). The absence of any Test Identification Parade,
according to the High Court, did not materially affect the 0
prosecution case, as PW-5 and PW-7 had stated in their
evidence that the accused used to frequently come to police
station in connection with other cases in which they were
involved.
     31. We find it difficult to agree with the view taken by the E
High Court on the above aspects of the case. Not mentioning
the name of any of the accused in the report submitted to the
court i.e. Ex. P-2, particularly, when according to PW-5 and PW-
7, the accused perso11s were known to them is a vital lacuna
which cannot be explained by confining the scope of the said F
r~port as has been done by the High Court. At the same time,
the narration of the names of several of the accused in the
examination of PW-5 and PW-7 in court, in our view, would
cease to be a mere discrepancy with reference to the earlier
version of the witnesses as mentioned in Ex. P-2. The same G
would amount to an improvement or an exaggeration on the part
of the prime witnesses of the prosecution thereby casting a
serious doubt on their reliability. PW-5 and PW-7 are supposed
to be members of a disciplined force. The lacuna in Ex. P-2
(absence of any names) cannot be reasonably understood to H
    28       SUPREME COURT REPORTS               [2012) 13 S.C.R.


A   be on account of any shock suffered by the witnesses due to
    the incident. The failure on the part of PW-5 and PW-7 to use
    the fire arms issued to them despite an assault committed by
    as many as 23 persons resulting to the death of three, as the
    prosecution has alleged, is both mysterious and inexplicable.
B   So is the registration of the FIR under Section 302 IPC at 3.15
    p.m. when the deceased persons were still alive. The efficacy
    of the dying declaration (Ex. P-4) when the maker thereof had
    slipped into a coma even before completing the statement
    would have a serious effect onif:he capacity of D-1 to make such
c   a statement. The certification made by PW-21 with regard to
    the condition of the deceased is aefinitely not the last word.
    Though ordinarily and in the normal course such an opinion
    should be accepted and acted upon by the court, in cases,
    where the circumstances so demand such opinions must be
0   carefully balanced with all other surrounding facts and
    circumstances. All the above, in our view, demonstrates the
    fragile nature of the conclusions reached by the High Court in
    the present case.

         32. For the above reasons, we hold that conviction of the
E   accused appellants recorded by the High Court under the
    different provisions of the IPC and the sentences imposed
    cannot be sustained. We accordingly allow this appeal, set
    aside the judgment and order dated 04.09.2008/19.09.2008
    passed by the High Court of Madras and confirm the order of
F   acquittal dated 16.04.1998 passed by the learned trial court.
    The accused appellants, if in custody, be released forthwith
    unless required in any other case.

    K.K.T.                                        Appeal allowed.