ARUN versus STATE BY INSPECTOR OF POLICE, TAMIL NADU

Citation: [2008] 17 S.C.R. 279 · Decided: 11-12-2008 · Supreme Court of India · Bench: LOKESHWAR SINGH PANTA · Disposal: Case Partly allowed

Cited by 2 judgment(s) · see the full citation network in Lexace

Judgment (excerpt)

[2008] 17 S.C.R. 279 
ARLIN 
A 
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II. 
STATE BY INSPECTOR OF POLICE, TAMIL NADU 
(Criminal Appeal No. 1657 of 2007) 
DECEMBER 11, 2008 
91 
[LOKESHWAR SINGH PANTA AND B. SUDERSHAN 
REDDY, JJ.] 
;,1 
Penal Code, 1860 - ss. 302134 and 457(1) - Prosecution c 
under -
Of appellant-accused (A5) alongwith seven co-
accused - Allegation that A5 with A4 trespassing house of 
deceased armed with fire arms with intention to commit 
dacoity - In the process A-4 firing at the deceased resulting 
in his death -
Trial Court convicting A-4 uls 302 and A-5 
convicted uls 457(1) - Other co-accused acquitted of all the 
D 
charges - High Court convicting A-5 also u/s 302134 - On 
appeal, held: High Court should not have disturbed the order 
of acquittal of A-5 uls 302134 - It has not been proved beyond 
reasonable doubt that A-5 shared common intention with A-
4 or that he was armed with fire-arm - He cannot be made 
E 
constructively liable for the act of A-4 - Hence, acquitted 
under s.302134 - Conviction u/s 457(1) confirmed. 
~ 
Criminal Law - Appeal against acquittal - Appreciation 
of - Held: While appreciating appeal against acquittal, courts 
F 
... 
to keep in mind that there is double presumption in favour 
)..-
of the accused - When two views were possible and the one 
favourable to the accused has been taken into account for 
acquitting the accused, appellate court should not disturb 
such order - Appeal. 
G 
Appellant-accused (A-5) was prosecuted alongwith 
~ .., 
seven other co-accused ulss.120-B, 398, 449, 302/34 IPC 
and u/s 3 r/w s. 25(1-B)(a) of Arms Act. 
. 
.. 
279 
H 
280 
SUPREME COURT REPORTS 
[2008] 17 S.C.R. 
A 
The prosecution case was that pursuant to a 
conspiracy amongst all the accused, A-4 and A-5 with 
intention to commit robbery, entered the house of the 
deceased. Wife of the deceased wl:len enquired as to why 
they entered the house A-4 shout at the deceased, as a 
B result of which he later died. PW-1 and PW-2 (mother of 
the deceased) were the eye-witnesses to the incident. Trial 
Court found A-4 guilty of offence punishable u/s 302 IPC. 
Appellant-accused was found guilty u/ss. 398 and 457(1) 
IPC. He was acquitted of the charges u/ss.120-B, 449, 302 
c r/w s.34 IPC as well as under. the provis_ions of Arms Act 
giving a finding that A-5 did not t,respass into the house 
of the deceased alongwith A-4 with intention to kill the 
deceased. Rest of the accused were acquitted of all the 
charges. High Court reversing the judgment of trial court 
0 so far as appellant was concerned, convicted him also 
u/s 302 r/w s. 34 IPC, finding that A-5 alongwith A-4 
trespassed the house of the deceased in furtherance of 
their common intention to kill the deceased. Hence, the 
present appeal. 
E 
Partly allowing the appeal, the Court 
HELD: 1. It is true that appellate cou·rt has full power 
to review, re- appreciate and re
1-consider the evidence 
upon which the order of acqui~tal is founded and its 
F power lo review and re-appreciate the evidence and come 
to its own conclusion is not controlled by any provisions 
of Cr.P.C. An appellate court, however, must always bear 
in mind that in case of acquittal, there is double 
presumption in favour of the accused. Firstly, the 
G presumption of innocence is available to him under the 
fundamental principle of criminal' jurisprudence that every 
person shall be presumed to be innocent unless he is 
proved guilty by a competent c~urt of law. Secondly, the 
accused having secured his ac,quittal, the presumption 
of innocence is further reinforced, reaffirmed and 
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ARUN v. STATE BY INSPECTOR OF PO!}CE, TAMIL 
281 
NADU 
strengthened by the trial court. If two reasonable views 
are possible on the basis of the evidence on record and 
one favourable to the accused has been taken by the trial 
court, it ought not to be disturbed by the appellate court. 
[Para 18] [289-8, C, E] 
2.1. The accusations made against the appellant 
making him constructively liable for the criminal act of 
murder committed by A-4 with the aid of Section 34 IPC 
were not established. The High Court ought not to have 
disturbed the order of acquittal recorded by the trial court 
exonerating the appellant of the charge u/s. 302 r/w. s. 34 
IPC. [Paras 19 and 31] [289-F; 296-A] 
2.2. The case of the prosecution was that the 
appellant along with A-4 with an intention to commit the 
dacoity had trespassed into the house of the deceased, 
the deceased had re

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