STATE Vs. CHONI YOHANNAN

JUDGEMENT

(1.) These two appeals are presented on behalf of the State by the Public Prosecutor from an order of acquittal made by the learned Sessions Judge of Quilon in S.C. No. 11 of 1124. There were two accused in the case. They are Choni Yohannan and Choni Chacko who are brothers. They were charged with the offence of murder under Ss. 301 and 104 of the Travancore Penal Code. The learned Sessions Judge has found the accused not guilty and has acquitted them and it is from this judgment of acquittal that the present appeals are preferred at the instance of the State in respect of each of the accused persons acquitted by the Court below.

(2.) In the course of arguments a question was raised as to the power of this court to interfere in an appeal from an order of acquittal as in the present case. The learned Public Prosecutor invited the attention of the court to the views expressed in the case reported in 1949 T.L.R. 191, which according to him are inconsistent with the provisions of law, and therefore deserve to be overruled. On going through this decision, we find that the observations made by the learned Judge who wrote the judgment in that case which are intended to limit the power of the High Court in an appeal like the present are obiter dicta and as such they have not the force of a decision which needs reconsideration. My learned brother was a party to that decision, but the judgment was written by the Judge with whom he was sitting. He did not share the views expressed in the obiter dicta; at the same time he did not feel called upon to express dissent, since the observations were, in his judgment really beside the point and not necessary for arriving at a decision in that case. He is in full agreement with the views that are expressed in this judgment.

(3.) We may state at the outset that the obiter dicta in the judgement in 1949 TLR 191 which purport to restrict the powers of this court to interfere in appeal from an order of acquittal are based upon an old decision of the Allahabad High Court reported in Empress of India v. Murari, ILR 4 All. 148. The views of Straight J. in that decision were adopted by the learned Judge who wrote the judgment in 1949 T.L.R. 191. These views did not prevail in Allahabad. They were dissented from and practically overruled by a Full Bench of that Court in the case reported in Emperor v. Sheo Janak Pandey, ILR 56 All. 354. The Full Bench held that although the Trial Court was in a better position to judge of the credibility of the witnesses examined before it and therefore great weight should be attached to its view, if the appellate court is fully convinced that the conclusion of the Trial Court was clearly wrong and was contrary to the weight of the evidence, it would be justified in setting aside the order of acquittal. It also held that to arrive at a different conclusion on a question of fact, the appellate court need not necessarily be satisfied that the Trial Court had been, in the words of Straight, J. "incompetent, stupid or perverse or has come to an unreasonable or distorted conclusion or has obstinately blundered." The question came up for consideration before the Judicial Committee of the Privy Council in AIR 1934 PC 227 when Lord Russel of Killonen adopted a similar view. Ss. 345, 346, 350 of the Travancore Code of Criminal Procedure are similar in wording to the corresponding sections of the Code of Criminal Procedure in India and consequently the views expressed in that decision may well apply to a case like the present arising in this State. The Board observes that the corresponding sections in the Criminal Procedure Code "give to the High Court full power to review at large the evidence upon which an 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 that power unless it be found expressly stated in the Code, but in exercising the power conferred by the Code and before reaching the 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 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". These views have been quoted with approval in a later decision of the Board reported in AIR 1950 PC 30 . There, as in the present case, the Trial Court disbelieved eight eye witnesses of the occurrence, but the High Court took the view that there was no reason for disbelieving their evidence, although there was certainly a suspicious uniformity in matters of detail in the evidence of all these witnesses. The Board held that in spite of this, there was much evidence on the record to show that it was the appellant who struck the fatal blow and that "the Judges of High Court are entitled to act upon this evidence and it is impossible to say that there has been any miscarriage of justice which would justify intervention by His Majesty in Council". In another decision of the Privy Council reported in 50 Calcutta Weekly Notes 1, Lord Thankerton in delivering the judgment of the Board adopted the views expressed by Lord Russel in Sheo Swaroop v. The King Emperor ( LR 61 IA 393 ). His Lordship referring to the judgment of Lord Russel, observed that "there really is only one principle in the strict use of the word laid down there. That is that the High Court has full power to review at large all 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". In these circumstances, we would like to make it clear that the obiter dicta in the judgment of Sanakaranarayana Iyer, J. in the case reported in 1949 TLR 191 should not be taken as describing correctly the powers of interference of the High Court in an appeal from an order of acquittal. The provisions of S. 346 of the Travancore Criminal Procedure Code expressly state that an appeal from an order of acquittal may lie on a matter of fact as well as on a matter of law. S. 350 describes the powers that can be exercised by the appellate Court. Cl. (a) says that it can "in an appeal from an order of acquittal, reverse such order and direct that further enquiry be made or that the case be retried or committed for trial as the case may be or find him guilty or pass sentence on him according to law". There is no restriction imposed upon the appellate court in dealing with an order of acquittal on a question of fact and consequently we have no hesitation in holding, with great respect, that the judgment of the Judicial Committee of the Privy Council pronounced by Lord Russel in the case reported in AIR 1934 PC 227 contains the principles that should guide our courts in considering whether a finding of acquittal should be reversed or not.