DAMODARPRASAD CHANDRIKAPRASAD & ORS. versus STATE OF MAHARASHTRA

Citation: [1972] 2 S.C.R. 622 · Decided: 29-11-1971 · Supreme Court of India · Bench: A.N. RAY · Disposal: Dismissed

Cited by 1 judgment(s) · cites 2 · see the full citation network in Lexace

Judgment (excerpt)

622 
DAMODARPRASAD CHANDRIKAPRA.SAD & ORS. 
v. 
STATE OF MAHARASHTRA 
November 29, 1971 
[A. N. RAY AND D. G. PALEKAR, JJ.] 
Practice and Procedure-Appeal against acq11ittal-High Co11rt's power 
of interference. 
Evidence Act (I of 1872), s. 151-F.l.R. not prored through maker 
·If admissible. 
The High Court set aside an order of acquittal of the appellants on 
various charges and convicted them. One of the items of evidence on 
which the High Court relied was the first information report. Though it 
was not proved through its maker when he gave e\idence in the trial court. 
the High Court held it to be aclmissihle under s. 157 of the Evidence Act. 
In appeal to this Court, 
HELD : 
(I) The High Court was wrong in holding that the First 
Information Report would be admissible under s .. 157 of the Evidence Act. 
Under that section. it could not be used as substantive evidence but only 
to corroborate its maker. The &ppellants were also denied the opportunit1· 
of cross-examination on th~ First Tnformation Report. [627 A-DJ 
(2) The High Court, however, was correct in setting aside the order of 
ac4uitbl and convicting the appellants on the other evidence. [h39 D-0] 
Jn dealing with an appeal against acquittal the High Court can go inh, 
questions of law and fact and reach its own conclusion on evidence pro" 
sided it pays due regard to the principles for such review. These princi· 
ples are giving due regard to, the views of the trial Judge as to the credibi· 
lily of the witnesses, the presumption of ' innocence in 
favour of the 
accused, the right of the accused to any benefit of doubt and the slowneS< 
of an appellate court 'in disturbing the finding of fact arrived at by a Judge 
who had the advantage of seeing the witnesses. The appellate court in 
coming to its own conclusion should not only consider everv matter on 
record having a bearing on questions of fact and the reasons given by the 
trial court in support of the order of acquittal but should also express 
reasons for holding that the acquittal was not justified. If two conclusio"S 
can be reached with a plausible appearance of reason the court should 
lean in favour of that which leads to acquittal and not to that which leads 
to conviction. But once the appeUate court comes to the conclusion that 
the view of the trial court was unreasonable that itself would provide a 
reason for interference. [629 H; 630 A-E; 631 B-DJ 
In the present case. the High Court had kept in view the rules and 
principles of appreciation of evidence in setting aside the order of 
a.c· 
quittal. 
Jn such a case, this Court would not ordinarily interfere with the 
orcler of conviction passed bv 'the High Court in an appeal 
against 
on 
,,cqnittal, or., review 1hc evidence. [630 E: 63 I B-D] 
Harbans Singh and Am-. v. State of Punjah. [1962] Supp. l S.C.R. 
1()4 Senwat Singh & Ors. v. State of Rajasthan. 
[1961] 3 S.C.R. 120. 
Nih~l Singh & Ors. v. State of Puniab, [1964] 4 S.C.R. 5, State of Bom-
hav v. R11sy Mistry. A.I.R. 1960 S.C. 391 and La.rnw11 Ka/11 Nikalje '" 
State of Maharashtra, [1%81 3 S. C.R. 685. followed. 
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DAMODARPRASAD v. MAHARASHTRA (Ray, J.) 
623 
Khedu Mohton & Ors. v. State of Bihar, A.LR. 1971 S.C. 66 and 
S!ieo Swarup v .. King Emperor, 61 I.A. 398, referred to. 
CRIMINAL APPELLATE JURISDICTION : Criminal Appeal No. 
138 of 1968. 
Appeal by special leave from the judgment and order dated 
the June 10, 1968, ol the Bombay High Court in Criminal Appeal 
No. 667 of 1967. 
V. S. Desai, P. S. Nadkarni and Vi11ee1 Kumar, for the appel-
lants. 
S. K. Dholakia and B. D. Sharma, for the respondent. 
The Judgment of the Court was delivered by 
Ray, J. This is an appeal by special leave from judgment 
dated 10 June, 1968 of the High Court at Bombay setting aside the 
order of acquittal of the appellants and convicting them under sec-
tion 325 read with section 34 of the Indian Penal Code for ilaving 
assaulted and injured Choharjasing and sentencing each of the ap-
pellants to four years rigorous imprisonment and a fine of Rs. 1000 
each and six months rigorous imprisonment in default of payment 
of fine and further convicting the appellants under section 323 
read with section 34 of the Indian Penal Code for having assault-
e.d and injured Ramkeshwarsing and sentencing eaeh of the 
appellants to three months rigorous imprisonment. The sentences 
were to run concurrently. 
The appellants and another accused were charged

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