N Criminal Appeal No 329 of 1979
From the Judgment and Order dated 9 4 1979 of the Gujarat High Court in Criminal Appeal No 27076
511 Rajandra Prasad Singh Ms K G Vakharia P H Parekh and Ratan Karanjawala for the Appellants
T U Mehta M N Shroff and Himantika Wahi for the Respondent
The Judgment of the Court was delivered by PATHAK J
This appeal preferred under the  is directed against the judgment and order of the High Court of Gujarat setting aside the judgment and order of acquittal passed by the trial court and convicting and sentencing the appellants for offences under section 302 read with section 34 Indian Penal Code and under section 326 read with section 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 murder of Manilal and with causing injuries to Parmabhai Bhulabhai and Natwarlal
The prosecution case is that Manilal Bhulabhai and Bhikabhai were three brothers residing in a chawl belonging to the appellant Ajit Singh that on 9th April 1975 Manilal drew his salary from the factory where he worked and at about 645 pm on returning to his room in the chawl he was met by the appellants and Mohan Singh
They demanded payment of rent but Manilal 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 this Manilal started running away pursued by the three accused and headed towards the room of Parmabhai
Further kirpan blows were inflicted on him there by the appellants
Parmabhai who had emerged from his room was also attacked and given a kirpan blow
Manilal 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 Natwarlal on the head with it
All three accused are said to have run away from the place then leaving their bicycles behind
Manilal was removed to the hospital and declared dead
Parmabhai was admitted as an indoor patient
Shanabhai telephoned the police control room and informed them of the incident and the Gomtipur Police Station recorded a complaint made by Bhulabhai
512 The three accused were tried by the learned Additional Sessions Judge Ahmedabad Rural who after considering the evidence on the record acquitted the accused by his judgment and order dated 15th October 1975
On 26th April 1976 the State filed an appeal in the High Court and prayed for condonation of the delay in filing it
The High Court condoned the delay considered the appeal on its merits and allowed it against Ajit Singh and Balwant Singh
They were convicted under section 302 read with section 34 of the Code and sentenced to imprisonment for life
They were also convicted under section 326 read with section 34 of the Code but no separate sentence was passed thereunder
The appeal against the acquittal of Mohan Singh was dismissed
At the outset it is urged by learned counsel for the 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 file an appeal and it allowed the 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 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 after limitation had expired that the case was fit for appeal by the State Government
Now it is true that a party is entitled to wait until the last day of limitation for 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 limitation which may further delay the filing of the appeal
But that the limitation 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 Court erred in condoning the delay
513 It is pointed out that the High Court could have sent for the record in the exercise of its revisional jurisdiction and examined the case
That is quite another matter and raises other questions
We are concerned here with the question whether the delay in filing the appeal could have been condoned
But quite besides this there was also no merit in the appeal filed before the High Court
The trial court wrote a careful judgment exhaustively considering all the evidence and on painstaking analysis reached conclusions which in our opinion are pre eminently reasonable and support the order of acquittal
It found that the evidence did not establish that the injury suffered by Bhulabhai could have resulted from a kirpan that the panch witnesses to the recovery of the two kirpans did not support the prosecution that of the six eyewitnesses one of them Ramiben widow of Manilal was not present on the scene at all that all the eye witnesses had indulged in palpable falsehood in attempting to implicate Mohan Singh when plainly he was not there the State appeal against his acquittal was dismissed by the High Court that there were material contradictions between the different eye witnesses concerning the sequence of events the exact places where the blows were struck and the role played by each accused that the information given by one eye witness Shanabhai to the police control room mentioned merely that four or five sardarjis had come to the chawl and had injured two persons with a 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 was already dark when the incident took place and there were no municipal lights within the limits of the chawl
The trial court has further adverted to the circumstance that four bicycles were seized by the police at the scene which is inconsistent with the prosecution case that three persons the accused were involved
As regards the complaint filed by Bhulabhai the trial court has found that it could not be admitted in evidence under section 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 was drawn up
The trial court also adverted to the fact that the police did not record the statement of the remaining eye witnesses that very night
The Prosecuting 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 other people but not a single independent witness has come forward to support the prosecution
The eye witnesses produced are either related or members 514 of the same community members of other communities also lived in the chawl 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 property and criminal proceedings had been taken
At this point it is relevant to note that Ajit Singh used to employ one Shivram for collecting rents
In all the circumstances the trial court observed that when the witnesses could not identify the four or five Sardarjis who had come to the chawl they put their heads together and decided to involve Ajit Singh and his two sons
Holding that the evidence was untrustworthy and it would be highly unsafe and hazardous to convict the accused on such testimony the trial court gave them the benefit of doubt and acquitted them
We may observe that the High Court had before it an appeal 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 vs The King the Privy Council declared that the High Court must give proper weight and consideration 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 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 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 Ganesh Bhavan Patel  Anr
vs State of Maharashtra to which one of us Sarkaria J was party it was also observed Where two reasonable conclusions can be drawn on the evidence on record the High Court should as a matter of judicial caution refrain from interfering with the order of acquittal recorded by the Court below
In other words if the main grounds on which the Court below has based its order acquitting the accused are reasonable and plausible and cannot be entirely and effectively dislodged or demolished the High Court should not disturb the acquittal
 515 The legal position is well settled and indeed has been adverted to by the High Court
But after specifically referring to it the High Court appears to have overlooked the limitations imposed on it and has embarked on a course not warranted by law
It has taken into particular regard a few considerations which 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 belong to Ajit Singh
We are not satisfied that the connection has been truly established
The papers found in the diary do not necessarily 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 integrality of the evidence alone can ensure whether the accused are guilty
We are satisfied that the High Court erred in interfering with the judgment of the trial court
The appeal must therefore be allowed the judgment and order of the High Court set aside and the judgment and order of the trial court restored
These are the reasons which persuaded us to make the order disposing of the appeal
NVK Appeal allowed


Summary:
The two appellants who were father and son alongwith another son who was acquitted were charged with the offence of committing the murder of the deceased and of causing injuries to his two brothers all of whom were residing in a chawl belonging to the first appellant
The prosecution alleged that on the fateful day the appellants demanded payment of rent from the deceased and refusal to make immediate payment infuriated the second appellant who inflicted two kirpan blows on him
When the deceased started running to the room of his brothers he was pursued and further kirpan blows were inflicted on him
His brothers were also attacked by the three accused
After the incident all the accused ran away from the place leaving their bicycles behind
The deceased succumbed to his injuries in the hospital and one of his brothers was admitted as an indoor patient
The three accused were tried by the Addl
Sessions Judge
As there were material contradictions in the eye witnesses  account of the sequence of events the exact places where the blows were struck and the role played by each accused and the seizure of four bicycles by the police at the scene being inconsistent with the prosecution case that three persons the accused were involved the Sessions Judge held the evidence to be 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 because the State Government saw no case on the merits for an appeal
However in a revision petition filed by one of the brothers of the deceased the High Court declared that the case was a fit case where the State Government should file an appeal
Thereafter the State Government filed an appeal in the High Court and prayed for condonation of the delay in filing the appeal
The High Court condoned the delay considered the appeal on its merits and allowed it against the two appellants
The appeal against the acquittal of the third accused was dismissed
Allowing the appeal to this Court  HELD 1i There was no sufficient cause for the State not filing the appeal within time and the High Court erred in condoning the delay
512 F H 510 ii A party is entitled to wait until the last day of limitation for 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 limitation which may further delay the filing of the appeal
But that the limitation has been allowed to expire without the appeal being filed must be traced to a cause arising within the period of limitation
512 G 2i The High Court erred in interfering with the judgment of the trial court
515 D ii The approach to be adopted by the High Court when exercising its appellate powers in a case of appeal against an order of acquittal has been defined in a long line of cases
As long ago as 1934 the Privy Council declared that the High Court must give proper weight and consideration 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 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 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 acquitting 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 H Warren Ducane Smith vs The King AIR 1934 PC227  Ganesh Bhavan Patel  Anr
vs State of Maharashtra   referred to
iii The High Court after specifically referring to the aforesaid legal position overlooked the limitations imposed on it and embarked on 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 some of the material only omitting to consider in the process that the integrality of the evidence alone can ensure whether the accused are guilty
515A 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 belonged to the first appellant
This connection has not been properly established
The papers found in the diary do not necessarily show that the diary belonged to him
Nor is there sufficient proof that the slipper is his
515 B 3 The trial court wrote a careful judgment exhaustively considering all the evidence and on painstaking analysis reached conclusion which are preeminently reasonable and support the order of acquittal
513 B