Md.Ankoos & Ors vs Pub.Pros.High Court Of A.P. (2009): Supreme Court on acceptance of case diary as an evidence.

 Md.Ankoos & Ors vs Pub.Pros.High Court Of A.P., 009 (84) AIC 255 (SC)

Before the Supreme Court of India.

Decided on: 6 November 2009

Author of the judgement: R Lodha

Bench: D.K. Jain, R.M. Lodha

Brief facts and procedural history-

Few cattle died in the village Thimmapur in 1997. The death of these cattle was due to sudden ill-health. The villagers of Thimmapur suspected that their cattle died due to sorcery practiced by some of the villagers.

Five persons were done to death in the intervening night of October 2 and 3, 2000 in village Thimmapur, District Warangal. The villagers suspected that deceased were practicing sorcery and due to that few deaths took place in the village. S. Venkateshwara Rao (PW-1) – Village Administrative Officer – on August 3, 2000, lodged a report about the incident at police station Sangam at about 6.00 a.m. Ch. Rajeshwar Rao (PW-20) – Inspector of Police – upon receipt of information immediately rushed to the scene of occurrence; conducted Inquest Panchnama over the dead bodies and sent the dead bodies to MGM Hospital, Warangal for post-mortem. PW-20 seized the kerosene drum (MO-1) at the scene of offense and took steps towards investigation and after collecting the evidence and on completion of the investigation, submitted charge-sheet against A-1 to A-78 before the Court of III Additional Judicial First Class Magistrate, Warangal who committed them to the court of sessions for trial. A-21 being juvenile was separated from the trial.

77 persons were sent up for trial for the offenses under Sections 148, 448, 307, 302, 120-B read with 109, IPC. The Court of 2nd Additional Sessions Judges at Warangal vide his judgment dated June 9, 2009, acquitted all of them.

In the appeal preferred by the State of Andhra Pradesh, High Court confirmed the judgment of acquittal of 59 accused but convicted nineteen persons for the offense punishable under Section 302 read with Section 149, IPC and sentenced them to undergo imprisonment for life vide judgment dated October 4, 2007. Their acquittal for other offenses was, however, confirmed. All these nineteen convicted persons preferred special leave petition in which leave has been granted and appeal has come up for hearing before us.


Is the High Court justified in reversing the judgment of acquittal and convicting the appellants for the offense punishable under Section 302 read with Section 149, IPC?


The Supreme Court has, time and again, dealt with the scope of the exercise of power by the Appellate Court against the judgment of acquittal under Sections 378 and 386, Cr.P.C. It has been repeatedly held that if two views are possible, the Appellate Court should not ordinarily interfere with the judgment of acquittal. This Court has laid down that Appellate Court shall not reverse a judgment of acquittal because another view is possible to be taken.

The appellate court may only overrule or otherwise disturb the trial court’s acquittal if it has “very substantial and compelling reasons” for doing so. A number of instances arise in which the appellate court would have “very substantial and compelling reasons” to discard the trial court’s decision. “Very substantial and compelling reasons” exist when:

(i) The trial court’s conclusion with regard to the facts is palpably wrong;

(ii) The trial court’s decision was based on an erroneous view of law;

(iii) The trial court’s judgment is likely to result in “grave miscarriage of justice”;

(iv) The entire approach of the trial court in dealing with the evidence was patently illegal;

(v) The trial court’s judgment was manifestly unjust and unreasonable;

(vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the ballistic expert, etc.

(vii) This list is intended to be illustrative, not exhaustive.

The appellate court must always give proper weight and consideration to the findings of the trial court. If two reasonable views can be reached–one that leads to acquittal, the other to conviction–the High Courts/appellate courts must rule in favor of the accused.

In the first place, High Court erred in accepting the evidence of PW-2 to PW-4 without adequately meeting the reasons given by the Trial Court for not accepting their evidence. Moreover, the supreme court held that the view of the Trial Court in not accepting the evidence of PW-2, PW-3 and PW-4 cannot be said to be erroneous. Secondly, and more importantly, the High Court committed a serious error of law in discarding the evidence of PW-20 on the basis of case diary summoned in the exercise of the power conferred on the Court under Section 172 of the Code.

A criminal court can use the case diary in the aid of any inquiry or trial but not as an evidence. This position is made clear by Section 172(2) of the Code. Section 172(3) places restrictions on the use of case diary by providing that accused has no right to call for the case diary but if it is used by the police officer who made the entries for refreshing his memory or if the Court uses it for the purpose of contradicting such police officer, it will be so done in the manner provided inSection 161 of the Code and Section 145 of the Evidence Act. Court’s power to consider the case diary is not unfettered.

In light of the inhibitions contained in Section 172(2), it is not open to the Court to place reliance on the case diary as a piece of evidence directly or indirectly.

The High Court, however, did not keep the aforesaid legal position in mind and erred in placing reliance upon the evidence of PW-2 to PW-4 by verifying their statements recorded under Section 161(3) of the Code from the case diary. It is here that the High Court fell into grave error in using the statements of PW-2 to PW-4 recorded under section 161(3)of the Code; particularly for contradicting PW-20 without affording any opportunity to him to explain the position. The course adopted by the High Court is impermissible in law as Section 172of the Code is not meant to be used for the purpose it has been used by the High Court i.e. to overcome the contradictions pointed out by the defense.

Another grave illegality vitiating the judgment of the High Court is a conviction of the appellants under Section 302 read with Section 149 IPC even though appellants have been acquitted of the offense under Section 148 IPC.

All 77 accused, vide charge No. 1, were charged to the effect that they were members of the unlawful assembly and in prosecution of the common object of such assembly, to commit the murder of D-1, D-2, D-3, D-4 and D-5, committed the offence of rioting by pouring kerosene and thereby committed an offence punishable under Section 148 IPC vide charge No.4, all the accused were charged that they committed murder by intentionally causing the death of D-1 to D-5 and thereby committed an offence punishable under Section 302 IPC. The Trial Court held that neither offense under Section 148 IPC nor under Section 302 IPC was established against the accused beyond any reasonable doubt. The High Court affirmed the finding of the Trial Court about the acquittal of the appellants under Section 148 IPC but convicted them of the offense punishable under Section 302 read with Section 149 IPC without there being any charge to this effect. Section 149 IPC creates constructive liability i.e. a person who is a member of the unlawful assembly is made guilty of the offence committed by another member of the same assembly in the circumstances mentioned in the Section, although he may have had no intention to commit that offence and had done no overt act except his presence in the assembly and sharing the common object of that assembly.

The legal position is also fairly well settled that because of a mere defect in language or in the narration or in form of the charge, the conviction would not be rendered bad if accused has not been affected thereby. But in a case such as the present one where the appellants have been expressly charged with the offense punishable under Section 148 IPC and have been acquitted thereunder, they cannot be legally convicted of the offense punishable under Section 302 read with Section 149 IPC. It is so because the offense of rioting must occur when members are charged with murder as the common object of the unlawful assembly.

Section 148 IPC creates liability on persons armed with deadly weapons and is a distinct offense and there is no requirement in law that members of the unlawful assembly have also to be charged under Section 148 IPC for legally recording their conviction under Section 302 read with Section 149 IPC. However, where an accused is charged under Section 148 IPC and acquitted, conviction of such accused under Section 302 read with Section 149 IPC could not be legally recorded.

In view of the aforesaid legal position, the appellants having been acquitted under Section 148 IPC by the Trial Court as well as the High Court, they could not have been legally convicted by the High Court under Section 302 read with Section 149 IPC.

It is also pertinent to mention that the prosecution came out with the case that the accused committed house-trespass by entering into houses of D-1 to D-5 and dragged them out with an intent to kill. Accordingly, all accused persons were charged under Section 448 IPC but all of them have been acquitted as the prosecution failed to establish the said offense against them. This again dislodges the material aspect of the prosecution case. Be that as it may, the view of the Trial Court in passing the judgment of acquittal is a possible view and cannot be said to be palpably wrong on facts or based on an erroneous view of law and, therefore, High Court was not justified in interfering with the judgment of acquittal. It is true that five persons were done to death in the dead of night in a ghastly manner and the whole incident is quite shocking but in the absence of cogent and reliable evidence against the appellants connecting them to crime, view of the Trial Court in passing the judgment of acquittal cannot be said to be unjustified.


The judgment of the High Court passed on October 4, 2007, is set aside. The appellants shall be released forthwith, if not required in any other case.


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