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2012 DIGILAW 474 (KAR)

State by Kudremukh Police v. Nagesha

2012-06-07

B.V.PINTO, DILIP B.BHOSALE

body2012
Judgment :- DILIP B. BHOSALE J. 1. This appeal by the State is directed against the Judgment and Order dated 26th Oct. 2006 rendered by Prl. Dist. & Sessions Judge, Chikmagalur, acquitting both the accused-respondents who were charged and tried for the offences punishable under sections 302 read with section 34 and 201 read with Section 34 IPC. It was on the allegations that the accused committed murder of Seshappagowda, assaulting him with wooden club on his head and concealed his body, tied with 2 stones, in the river with an intention of screening themselves from legal action. 2. The case of the prosecution briefly stated is that the deceased and the accused were in inimical terms. P.W.1 Smt. Savitha, P.W.5 Diwakara and C.W.10 Kumari Vanita are the wife, son and daughter of the deceased. The father of accused No.1 is maternal uncle of the deceased. All were residents of the same village. 2 Years prior to the occurrence there was a quarrel between the deceased and the father and uncle of accused no.1 on account of removal of fence put up by the deceased adjoining to their lands. Accused no.1 and his father also had quarrel with P.W.1 and her deceased husband over their cattle having grazed in their lands. A month prior to the occurrence a theft of sandal wood tree, next to the house of the deceased, had taken place and in that connection the deceased had filed a complaint against accused no.1, his brother Boba, one Shashidhara and Sundresha with the forest officials. On 2.9.2005, as usual, the deceased left his house for work at about 6.35 a.m. Thereafter, he did not return home. The family members of the deceased made efforts to trace the deceased. On 3.9.2005 at about 7.30 a.m. P.W.1 along with her son P.W.5 and maternal uncle C.W.15 went via the pathway running through the lands of Dayananda and Jayaramegwda in search of her deceased-husband. On their way they noticed a pen, keys, Titan watch, umbrella and hand kerchief (M.Os.1 to 5) of the deceased lying by side of the fence. Immediately P.W.1 went to Kudremukh Police Station and lodged missing complaint (Ex.P-1). On the basis thereof P.W.12 registered a case bearing Cr.No.22/2005. On 4.9.2005, P.W.12 visited the place from where M.Os.1 to 5 were found on the previous day, when he got a bundle containing cloths (M.Os.6 to 1). Immediately P.W.1 went to Kudremukh Police Station and lodged missing complaint (Ex.P-1). On the basis thereof P.W.12 registered a case bearing Cr.No.22/2005. On 4.9.2005, P.W.12 visited the place from where M.Os.1 to 5 were found on the previous day, when he got a bundle containing cloths (M.Os.6 to 1). Those were identified as that of the deceased by P.W.4 and his brother C.W.13. They were seized under the panchanama (Ex.P-2). The investigation was thereafter taken over by P.W.13. In the course of enquiry, P.W.1 raised suspicion against both the accused and so also against Boge Gowda, Srinivasa and Shashidhara. On 5.9.2005, P.W.13 secured the accused persons, one Boge Gowda, Srinivasa and Shashidhara to the Police Station. then the dead body of the deceased also was recovered at the instance of the accused from the river tied with two stones. He also secured presence of panchas P.W.2, C.W.1 and C.W.3 Sheshapa Shetty. In their presence he recorded statements of accused no.1 & accused No.2 (Exs.P-19 & P-20 respectively). Thereafter, recovery panchanama was drawn and a pair of chappals, small club, plastic rope, 2 stones, blue colour shirt, kakhi colour shirt, black colour tee-shirt (M.Os.12 to 20) of the deceased were seized. Inquest panchanama was also drawn (Ex.P-4). The dead body was thereafter sent for autopsy. He then completed the investigation and submitted a charge sheet against the accused. In the course of investigation, he had completed all formalities such as arrest of accused, getting a sketch of the scene of occurrence drawn, drawing of different panchanamas, recording of statements of several person, etc. The case was, thereafter committed to the Sessions Court and the following charges were framed against the accused which reads thus: “That, on 02.09.2005 at about 7.00 or 7.10 A.M. on the pathway situated in the garden land of one Dayananda at Samse, Mudigere Taluk in furtherance of your common intention, you committed murder by intentionally causing the death of Seshappagowda by assaulting him with club on his head and thereby committed the offence punishable under Sec.302 read with Sec.34 of I.P.C. and within the cognizance of this court of Session. That on the aforesaid date, time and place, knowing or having reason to believe that offence of murder in respect of said Seshappagowda, had been committed by you, punishable with death or imprisonment for life, did cause certain evidence of the said offence to disappear by throwing the dead body of Seshappagowda into Bhadra river, with intention of screening yourself from the legal punishment and thereby committed the offence punishable under Sec.201 r/w 34 of the I.P.C. and within the cognizance of the court of Session at Chikmagalur. 3. Defence propounded by the accused in the course of trial was of total denial. 4. The prosecution in the course of trial, examined as many as 13 witnesses and produced several documents including different panchanamas and autopsy report to bring home guilt of the accused. The prosecution case is upon circumstantial evidence. The circumstances brought on record, to connect the accused with the alleged murder and causing disappearance of the evidence are motive, recovery of MOs.12-20, and recovery of the dead body at the instance of accused. The trial Court having found that the alleged motive was weak and there exist lot of inconsistencies/discrepancies in the evidence of material witnesses held that the prosecution has failed to prove the charges levelled against the accused and proceeded to acquit them vide judgment and order dated 26th Oct. 2006. Hence this appeal is by the state against acquittal. 5. In this week, we have decided few appeals preferred by the State against the judgments of acquittal. Those appeals were awaiting hearing and final disposal for more than 6-7 years. The offences in most of the cases were committed in the last century. We are informed that still several such appeals are waiting in queue for hearing and final disposal. In the appeals, which we have disposed of, the arguments were advanced by learned counsel for the parties, more particularly, learned SPPs, on merits of the case without referring to or bearing in mind the principles laid down by High Courts and the Supreme Court to be considered or applied while dealing with the appeal against acquittal or the powers of appellate Court under Section 378 of Cr.P.C. As a result thereof, we did not get an assistance that we were looking for from learned counsel for parties, while dealing with the appeals against acquittal. It is true, that the power conferred by section 378 Cr.P.C. which deals with an appeal against an order of acquittal is as wide as the power to deal with an appeal against an order of conviction. However, while dealing with the former class of appeals, it is necessary to bear in mind the principles laid down by the Supreme Court. So far none of the lawyers appearing the appeals have made any reference to the principles laid down while arguing the appeals. In this backdrop, we deem it appropriate to consider what should be the circumstances in which appellate Courts, under Section 378 Cr.P.C., should exercise powers to interfere with the order of acquittal, irrespective of the passage of time, and what principles one should bear in mind while arguing such appeals? With this object in mind, we would like to survey the case law on the point settled over a period of time. 6. The first available decision on the point is of the Privy Council reported in SHEO SWARUP AND OTHERS v. KING EMPEROR AIR 1934 Privy Council 227 (2) while dealing with relevant section 417 of Cr.P.C. 1898 of appeal against acquittal, the Bench of five Hon’ble Judges observed as under: “It cannot be said that the High Court has not power of jurisdiction to reverse an order of acquittal on a matter of fact expect in cases in which the lower Court has “obstinately blundered”, or has “through incompetence, stupidity or perversity” reached such “distorted conclusions as to produce a positive miscarriage of justice,” or has in some other way so conducted or mis-conducted itself as to produce a glaring miscarriage or justice or has been tricked by the defence so as to produce a similar result.” (emphasis supplied) The Privy Council also observed in the said Judgment, that High Court should also give proper weight and consideration to such matters as the view of the trial Judge as to the credibility of the witnesses; presumption of innocence in favour of the accused certainly not weakened by the fact that he has been acquitted in his trial: the right of the accused to the benefit of any doubt; and the slowness of an appellate Court in disturbing a finding of fact arrived by a Judge who had the advantage of seeing the witness. From bare perusal of the observations made by the Privy Council, it is clear that it was firmly of the opinion that the order of acquittal should not be interfered with unless the Court has “obstinately blundered”, or has “through incompetence, stupidity or perversity” reached such distorted conclusions as to produce a positive miscarriage of justice. In NUR MOHAMED v. EMPEROR AIR (32) 1945 PC 151 the Privy Council observed thus: “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. Where the High Court judgment shows that they have been at pains to deal in detail with the reasons given by the Sessions Judge for disbelieving the group or witnesses, and they have dealt in detail with them, showing on the face of their judgment and there is no necessity to presume in this case that they have not done their duty, there is no ground for invoking the assistance of the Board on account of any miscarriage of justice or the like matter. The Board will always assume that a Court has followed the proper practice unless something appears which proves the contrary.” (emphasis supplied) From bare perusal of the observations made by the Privy Council in this Judgment, it is clear that it has reiterated the view expressed in SHEO SWARUP’s case maintaining that the High Court has full power to review the Judgment of acquittal and on proper re-appreciation of evidence by viewing the reasons given by the Sessions Judge, can always interfere with the order of acquittal. In SURAJPAL SINGH AND OTHERS v. THE STATE- AIR 1952 SC 52 the Supreme Court while dealing with the provisions of section 417 of the Cr.P.C. observed thus: “It is well established that in an appeal under S.417 the High Court has full power to review the evidence upon which the order of acquittal was founded but it is equally well-settled that the presumption of innocence of the accused is further reinforced by his acquittal by the trial Court, and the findings of the trial Court which had the advantage of seeing the witnesses and hearing their evidence can be reversed only for very substantial and compelling reasons.” (emphasis supplied) The Supreme Court, thus, though not referred to the aforementioned Judgments of the Privy Council, observed that the order of acquittal can be interfered with only for substantial and compelling reasons and that the High Court has full power to review the evidence in the case before it. In SANWAT SINGH AND OTHERS v. STATE OF RAJASTHAN- AIR 1961 SC 715 the three Judges Bench of the Supreme Court once again considered the provisions of Section 417 and 423 of Cr.P.C. and while reiterating the earlier position of law observed thus: “In an appeal against acquittal the appellate court has full power to review the evidence upon which the order of acquittal is founded. The principles laid down in Sheo Swarup’s case. AIR 1934 PC 227 (2) afford a correct guide for the appellate court’s approach, to a case in disposing of such an appeal and the different phraseology used in the judgments of the Supreme Court, such as (i) substantial and compelling reasons, (ii) good and sufficiently cogent reasons, and (iii) strong reasons, are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal in its arriving at a conclusion on those facts, but should also express those, reasons in its judgment, which lead it to hold that the acquittal was not justified. AIR 1934 PC 227 (2) AIR 1945 PC 151 and AIR 1952 SC 52 , Explained, Case law referred”. AIR 1934 PC 227 (2) AIR 1945 PC 151 and AIR 1952 SC 52 , Explained, Case law referred”. (emphasis supplied) In the above case, the Supreme Court made referent to the principles laid down in SHEO SWRAUP’s case by the Privy Council and observed that the said principles afford a correct guide for the appellate Courts’ approach in disposing of appeals against acquittal. Supreme Court however has toned down the language used by the Privy Council and used the phraseology such as “substantial and compelling reasons”, “good and sufficiently cogent reasons”, and “strong reasons”. Thus, it is clear that the Supreme Court has also reiterated the same principle but took out a harness of the words used by the Privy Council. It is true that the power of interfering with the order of acquittal is equal to that of interfering with the order of conviction and it can be done for substantial and compelling reasons or for sufficient and cogent reasons or for strong reasons. The question of the extent of powers of the High Court to deal with the order of acquittal was taken up by a five Judge’s Bench of the Supreme Court in M.G. AGARWAL v. STATE OF MAHARASHTRA- AIR 1963 SC 200 . The Supreme Court after surveying the old case law existing till then observed thus: “There is no doubt that the power conferred by clause (a) of S.423 (1) which deals with an appeal against an order of acquittal is as wide as the power conferred by clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court’s powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. In dealing with such appeals the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled to the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeal, its approach is governed by the overriding considering flowing from the presumption of innocence. Sometimes, the width of the power is emphasized, while on other occasions, the necessity to adopt a cautious approach in dealing with appeals against acquittals is emphasized, and the emphasis is expressed in different words or phrases used from time to time. But the true legal position is that, however circumspect and cautious the approach of the High Court maybe in dealing with appeals against acquittals, it is undoubtedly entitled to reach its own conclusions upon the evidence adduced by the prosecution in respect of the guilt or innocence of the accused”. AIR 1934 PC 227 (2) and AIR 1945 PC, 151, Ref. (emphasis supplied) In this Judgment also, the Supreme Court referred to the Judgments of the Privy Council in 1934 and 1945 cases. The Supreme Court then observed that the expression “substantial and compelling reasons” for reversing a Judgment of acquittal should not be construed as a formula which has to be rigidly applied in every case, and so it is not necessary before recording a Judgment of acquittal, the High Court must necessarily characterize the findings recorded therein as perverse. In DURGACHARAN NAIK AND OTHERS v. STATE OF ORISSA AIR 1966 SC 1775 the Supreme Court once again reiterated the aforementioned propositions of law, viz. the High Court’s power in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. The Supreme Court however, maintained that for justifiable interference with the order of acquittal, there must exist substantial and compelling reasons. InCAETANO PIEDADE FERNANDES ANDANTOHER v. UNION TERRITORY OFGOA, DAMAN & DIU, PANAJI, GOA- AIR 1977 SC 135 Supreme Court once again had an occasion to tackle this question. The Supreme Court however, maintained that for justifiable interference with the order of acquittal, there must exist substantial and compelling reasons. InCAETANO PIEDADE FERNANDES ANDANTOHER v. UNION TERRITORY OFGOA, DAMAN & DIU, PANAJI, GOA- AIR 1977 SC 135 Supreme Court once again had an occasion to tackle this question. The Supreme Court held that High Court in exercise of its appellate power should not disturb an acquittal merely because it thinks that another view is better or more preferable. The relevant observations of the Supreme Court read thus: “It is now well settled that though the Appellate Court has the same powers as the trial court of appreciating evidence and coming to its own conclusion on questions of fact, it should not interfere with an acquittal, unless it finds that the view taken by the trial Court is unreasonable or perverse. If the view taken by the trial Court is a reasonably possible view, the appellate court should not disturb an acquittal merely because it thinks that another view is better or more preferable”. (emphasis supplied) Thus, though the High Court has the power of re-appreciation of evidence on record in a trial Court, it cannot interfere with the order of acquittal merely because it takes a different view on re-appreciation of the evidence on record. In other words, where two views on appreciation of evidence are possible, and the trial court which has acquitted the accused has taken one view and if it is reasonably possible, the appellate Court is not expected to take another view on re-appreciation of evidence and should give benefit to the accused refraining from interfering with such acquittal. In TOTA SINGH AND ANOTHER Vs. STATE OF PUNJAB AIR 1987 SC 1083 the Supreme Court observed thus: “The mere fact that the Appellate Court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the Court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any Court acting reasonably an judiciously and is, therefore, liable to be characterized as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the Appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous”. (emphasis supplied) Similarly, in AWADHESH AND ANOTHER v. STATE OF MADHYA PRADESH- AIR 1988 SC 1158 the Supreme Court again stated that there are circumstances under which the High Court cannot be justified in interfering with the acquittal. The relevant observations read thus: “Although the powers of the High Court to reassess the evidence and reach its own conclusion are as extensive as in an appeal against the order of conviction, yet, as a rule of prudence, the High Court should always give proper weight and consideration to matters e.g. (i) the view of the trial judge as to the credibility of the witnesses, (ii) the presumption of innocence in favour of the accused a presumption certainly not weakened by the fact that he has been acquitted at the trial: (iii) the right of the accused to the benefit of any doubt, and (iv) 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. If on appraisal of the evidence and on considering relevant attending circumstances it is found that two views are possible, one as held by the trial Court for acquitting the accused, and the other for convicting the accused in such a situation the rule of the prudence should guide the High Court not to disturb the order of acquittal made by the trial Court. Unless the conclusions of the trial court drawn on the evidence on record are found to be unreasonable, perverse or unsustainable, the High Court should not interfere with the order of acquittal. In the instant case, the High Court did not hold that the view taken by the trial Court was not a possible view but re-appraised the evidence and took a different view and it explained the infirmities of the prosecution pointed out by the Sessions Judge. The High Court could be said to have disregarded the rule of judicial prudence in converting the order of acquittal to conviction”. (Crl. Appeal No.936 of 1983 of 03.09.1986 (MP) Reversed). It is relevant to notice the observations made by the Supreme Court in ASHOK KUMAR v. STATE OF RAJASTHAN AIR 1990 SC 2134 while dealing with the question from different angle. The relevant observations read thus: “Law is well settled. While caution is the watchword, in appeal against acquittal as the trial Judge has occasion of watch demeanour of witnesses and interference should be made merely because a different conclusion could have been arrived, the provision does not inhibit any restriction of limitation. Prudence demands restraint on mere probability or possibility but in perversity or misreading interference is imperative otherwise existence of power shall be rendered meaningless. Where the trial Judge apart from deciding the case on irrelevant considerations, criticizing the doctors without any basis, the most serious error of which he was guilty and which rendered the order infirm was that he misread the evidence and indulged in conjectural inferences and surmises. The High Court could not be said to have exceeded its power in setting aside order of acquittal.” In DHANNA, ETC., VS. STATE OF MADHYA PRADESH AIR 1996 SC 2478 the Supreme Court again reiterated the fact that the presumption of innocence of a person is only strengthened by the order of acquittal and the High Court should be very cautious in interfering. The High Court should legally interfere only if there is absolute assurance of guilt of the accused upon appreciation of evidence on record. The High Court should legally interfere only if there is absolute assurance of guilt of the accused upon appreciation of evidence on record. The relevant observations in this Judgment read thus: “Though the Code does not make any distinction between an appeal from acquittal and an appeal from conviction so far as powers of the appellate court are concerned, certain unwritten rules of adjudication have consistently been followed by judges while dealing with appeals against acquittal. No doubt, the High Court has full power to review the evidence and to arrive at its own independent conclusions whether the appeal is against conviction or acquittal. But while dealing with an appeal against acquittal the appellate court has to bear in mind, first, that there is a general presumption in favour of the innocence of the person accused in criminal cases and that presumption is only strengthened by the acquittal. The second is, every accused is entitled to the benefit of reasonable doubt regarding his guilt and when the trial court acquitted him he would retain the benefit in the appellate court also. Thus appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused, upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed”. (emphasis supplied) The Supreme Court in HRIRAM & ORS. V. STATE OF RAJASTHAN (2000) 9 SCC 136 once again expressed its view regarding the scope of High Court’s power on interference while hearing an appeal against an acquittal. The Supreme Court observed that: “the power of the High Court, while hearing an appeal against an acquittal, is as wide and comprehensive as in an appeal against a conviction and it has full power to re-appreciate the entire evidence, but if two views on the evidence are reasonably possible, one supporting the acquittal and the other indicating conviction, then the High Court would not be justified in interfering with the acquittal, merely because it feels that it would, sitting as a trial court, have taken the other view. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial judge. While re-appreciating the evidence, the rule of prudence requires that the High Court should give proper weight and consideration to the views of the trial judge. But if the judgment of the Sessions Judge was absolutely perverse, legally erroneous and based on a wrong appreciation of the evidence, then it would be just and proper for the High Court to reverse the judgment of acquittal, recorded by the Sessions Judge, as otherwise, there would be gross miscarriage of justice. (also see SUCHAND PAL vs. PHANI PAL (2003) 11 SCC 527) In BHAGWAN SINGH AND OTHERS Versus STATE OF M.P. (2003) 3 SCC 21 the Supreme Court after considering the provisions contained in section 378 of the Cr.P.C. observed that in an appeal against acquittal, the High Court is competent to re-appreciate the evidence to find out whether the trial Judge has mis-appreciated any part of the evidence and if appreciation of evidence made by the trial court is proper and the conclusions drawn are reasonable, the High Court is not expected to substitute its own view for that of the trial Judge on re-appreciation of the evidence. In STATE OF U.P. v. SATISH AIR 2005 SC 1000 the Supreme Court once again considered the provisions contained in section 378 of Cr.P.C. and in paragraph 25 thereof observed thus: “There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused really committed any offence or not. (See Bhagwan Singh and others v. State of Madhya Pradesh ( 2002 (2) Supreme 567 ); (Shivaji Sahabrao Bobade and another v. State of Maharashtra ( AIR 1973 SC 2622 ); (Ramesh Babulal Doshi v. State of Gujarat ( 1996 (4) Supreme 167 ); (Jaswant Singh v. State of Haryana ( 2000 (3) Supreme 320 ); Raj Kishore Jha v. State of Bihar and others ( 2003 (7) Supreme 152 ); State of Punjab v. Karnail Singh ( 2003 (5) Supreme 508 ) and State of Punjab v. Phola Singh another ( 2003 (7) Supreme 17 ). (emphasis supplied) The Supreme Court in GHUREY LAL v. STATE OF U.P. (2008) 10 SCC 450 considering the Judgment in Sheo Swarup’s case in paragraph 69 observed thus: “The principles for setting aside an order of acquittal have been crystallized in a large number of judgments of this Court. Sheo Swarup v. King Emperor is one of he earliest cases where circumstances which are relevant in setting aside a judgment of acquittal have been enumerated in detail.” The Supreme Court in BASYYA PRABHAYYA HALLUR Versus STATE OF KARNATAKA (2009) 17 SCC 55 after considering the Judgments right from SHENO SWARUP v. KING EMPEROR (supra) till its Judgment in CHANDRAPPA v. STATE OF KARNATAKA (2007) 4 SCC 415 observed in paragraph 12 as follows: “1. The appellate court may review the evidence in appeals against acquittal under Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can re-appreciate the entire evidence on record. It can review the trial court’s conclusion with respect to both facts and law. 2. The accused is presumed innocent until proven guilty. The accused possessed this presumption when he was before the trial court. The trial court’s acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. The trial court’s acquittal bolsters the presumption that he is innocent. 3. Due or proper weight and consideration must be given to the trial court’s decision. This is especially true when a witness’ credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that the trial court was wrong.” 7. Thus, the Supreme Court, over a period of time, has laid down the following principles to be observed while exercising the power of High Court under section 378 of Cr.P.C. of appeal against acquittal: (i) The findings of trial Court which had an advantage of seeing the witnesses and hearing their evidence, can be reversed only for very substantial and compelling reasons; good and sufficiently cogent reasons; and for strong reasons. (ii) The substantial and compelling reasons for reversing judgment of acquittal should not be construed as a formula which has to be rigidly applied in every case and so it is not necessary that before reversing Judgment of acquittal, the High Court must necessarily categorise the findings recorded therein as perverse; (iii) The powers of High Court in dealing with an appeal against acquittal are as wide as those which it has while dealing with an appeal against conviction. However, while dealing with an appeal against acquittal the appellate Court has to bear in mind that there is general presumption in favour of the innocence of an accused in criminal case and that presumption is only strengthened by the acquittal; (iv) Though the appellate Court has the same powers as the trial Court on appreciating evidence and coming to its own conclusion on questions of fact, it should not interfere with an acquittal, unless it finds that the view taken by the trial Court is unreasonable and perverse; (v) If the view taken by the trial Court, on its appreciation of evidence, is a reasonably plausible view, the appellate Court should not disturb an acquittal merely because it thinks that another view is better or more preferable. Unless the approach made by the trial Court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by it is such which could not have been possibly arrived at by any Court acting reasonably and judiciously; (vi) If it is found that two view are possible, the one as held by the trial Court for acquitting the accused, and the other which the appellate Court is inclined to take, the appellate Court should not disturb the order of acquittal made by the trial Court; (vii) the appellate court in appeals against acquittals has to proceed more cautiously and only if there is absolute assurance of the guilt of the accused upon the evidence on record, that the order of acquittal is liable to be interfered with or disturbed. 8. Keeping the aforementioned principle in view, we would now like to consider the instant appeal on merits and to see whether there exist strong and compelling reasons to interfere with the order of acquittal and whether there is absolute assurance of the guilt of the accused upon the evidence on record. 9. In the present case, the prosecution has relied upon only two circumstances to prove the charge of murder against the accused namely motive and recovery of Mos.12 to 20 and the dead body at the instance of the accused. 10. Ordinarily, failure of the prosecution to establish the motive does not necessarily mean that the entire prosecution case has to be thrown overboard, particularly when the evidence of eye witness is truthful and trustworthy. However, in a case of circumstantial evidence the motive goes a long way to prove the guilt of the accused. Motive would form one of the main links in the chain of circumstantial evidence. Therefore, absence of motive or failure on the part of the prosecution to prove alleged motive could be fatal in the cases based on circumstantial evidence and if it is not proved, the chain of circumstances cannot be said to have been complete. 11. It is also well settled that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. 11. It is also well settled that in a case resting on circumstantial evidence all the circumstances brought out by the prosecution, must inevitably and exclusively point to the guilt of the accused and there should be no circumstance which may reasonably be considered consistent with the innocence of the accused. Even in a case of circumstantial evidence the court requires to bear in mind the cumulative effect of all the circumstances and in a given case, weigh them as an integrated whole. Any missing link may be fatal to the prosecution case. The principles governing appreciation of evidence in cases dependent upon the circumstantial evidence are that each of the circumstances relied upon by the prosecution must be established by cogent, succinct and reliable evidence. The circumstance relied upon must be such as cannot be explained on any hypothesis except the guilt of the accused. In other words the circumstances must be of an incriminating character. All proved circumstances must provide a chain, no link of which must be missing and they must unequivocally point to the guilt of the accused and exclude any hypothesis consistent with his innocence. 12. It would be relevant to notice the observations made by the Supreme Court, while dealing with a case based on circumstantial evidence, in HUKAM SINGH v. THE STATE OF RAJASTHAN-1977 CRI.L.J. 639. The relevant observations read thus: “In case of circumstantial evidence, all the incriminating facts and circumstances should be fully established by cogent and reliable evidence and the facts so established must be consistent with the guilt of the accused and should not be capable of being explained away on any other reasonable hypothesis than that of his guilt. In short, the circumstantial evidence should unmistakably point to one and one conclusion only that the accused person and none other perpetrated the alleged crime. If the circumstances proved in a particular case are not inconsistent with the innocence of the accused and if they are susceptible of any rational explanation, no conviction can lie.” 13. In the present case the prosecution placed only two circumstances on record to prove the guilt of the accused, namely motive and recovery of incriminating articles and the dead body at the instance of the accused. The prosecution in order to prove the motive has relied upon the evidence of PW.1, 3 and 4. In the present case the prosecution placed only two circumstances on record to prove the guilt of the accused, namely motive and recovery of incriminating articles and the dead body at the instance of the accused. The prosecution in order to prove the motive has relied upon the evidence of PW.1, 3 and 4. Through these witnesses it is brought on record that two years prior to the alleged occurrence there was a quarrel between the deceased and the father and the uncle of accused No.1 on account of removal of fence put up by the deceased adjoining to their land. The quarrel had also ensued over cattle having grazed in their lands. Then, the prosecution has also tried to bring on record that about a month prior to the occurrence a theft of sandalwood tree grown next to the house of the deceased had taken place and in that connection the deceased had filed complaint with the forest officials against accused No.1, his brother and two others. So far as the quarrel that had taken place two years prior to the occurrence is concerned, the Court below after having considered the evidence of PW1 observed that the alleged motive cannot be stated to be a motive for committing murder of the deceased. While recording such finding the Court below has rightly taken into consideration that the prosecution has not brought any material/evidence on record to prove the quarrel on account of removal of fence. Admittedly, no complaint was lodged either by the deceased or by PW1 against accused No.1 or his brother or any other person in connection therewith. We do not find any reasons to take a view different from the one taken by the trial Court holding that the said quarrel which had taken place two years prior to the occurrence cannot be stated to be a motive against the accused to commit the offence of murder. It is interesting to note that PW3, the sister-in-law of the deceased, when was asked questions regarding the alleged quarrel over removal of fence, she stated that the said quarrel had taken place four years prior to the occurrence. Insofar as the incident of theft of sandalwood is concerned, according to PW1 a complaint was lodged against accused No.1 his brother Bobe and two others with the forest officials. Insofar as the incident of theft of sandalwood is concerned, according to PW1 a complaint was lodged against accused No.1 his brother Bobe and two others with the forest officials. PW10-Range Forest Officer stated in his evidence that he had received a complaint bearing FOC No.2/05-06 in their office against one Nagesh, Srinivas, Shashidar, Sundaresh and Bobegowda of Kattemane, Nellibeedu of Samse village. However, in the cross-examination, he specifically stated that no case had been registered against the accused. Then he stated that he had not recorded statement of any witness in the said case and had not drawn any panchanama. It is thus clear, the allegation of committing theft of sandalwood also cannot be stated to have been proved against the accused. The learned Sessions Judge while considering the motive also noticed inconsistencies in the evidence of PWs.1 and 3 and recorded a finding that in view of difference in the testimonies of these witnesses, the alleged theft of sandalwood tree cannot be believed. Thus, finding that the motive, in the present case, is too bleak, the Court below has held that this circumstance cannot be stated to have been proved by the prosecution beyond reasonable doubt. We do not find any reason to hold that the findings recorded by the Court below are perverse and/or unreasonable and cannot be arrived at on the basis of the evidence on record. 14. That takes us to consider the next circumstance namely recovery of articles of the deceased and his dead body at the instance of the accused. To prove this circumstance, the prosecution has placed reliance upon the evidence of PWs.2, 4, 6 and 13. PW2 is a panch witness. He has stated in his evidence that on 5.9.2005, PW3Sheshappa Shetty and CW6-H.R. Vishwanath were called by the police to the Police Station to act as panchas at about 6.45 a.m. At that time, the accused were also present in the police station. The accused led them and the police to the hanging bridge situated at Nellibeedu, then towards Ajjigadde Halla and then by the pathway passing through the land of Dayananda, and the Thadve, they pointed out the same as the place where they committed the murder. The accused led them and the police to the hanging bridge situated at Nellibeedu, then towards Ajjigadde Halla and then by the pathway passing through the land of Dayananda, and the Thadve, they pointed out the same as the place where they committed the murder. From there, the accused led the panchas and the police to the land situated beyond the house of Jayaramegowda and there they pointed out the place where they had hatched the plan to kill the deceased. Then the accused took them near Ajjigadde Halla and there accused No.2 produced slipper of the left leg of the deceased from underneath cardamom nursery which was in the land of Dayananda. Then, accused No.2 produced another slipper of the right leg of the deceased beyond Ajjigadde halla. About 15’ away from the said place accused No.2 produced a club. From the said place, accused Nos.1 and 2 led them to Bhadra river. After taking them to a distance of about a furlong, in the said river they pointed out the place where the body of the deceased was thrown after tying the same to a stone with a nylon rope. Thereafter, the Circle Inspector directed CWs.12 and the brother of the decease (P.W.13) to search for the dead body. The dead body was found at the said place. In the cross-examination, the evidence of this witness was challenged to prove that nothing was recovered at their instance. All the suggestions made and the questions put to the witness were however, denied by this witness. Though 3 persons were called to act as panchas for drawing the said panchanama (Ex.P-3), the prosecution chose to examine only P.W.2. It is pertinent to note that apart from P.W.2, two more witnesses were also with the police and the panchas all throughout from the hanging bridge till Bhadra river. P.W.2 however has not made any reference whatsoever to the presence of P.W.6 and P.W.4. 15. P.W.4 is a brother of the deceased. He was also summoned by the police along with Echalahole Raju. When he reached the police station, the accused, P.W.2 and C.W.3 were present along with the police. He does not make any reference to C.W.6 in his evidence. The police, thereafter, told him to go ahead and wait near the hanging bridge situated at Beliveedu and that they would follow them. When he reached the police station, the accused, P.W.2 and C.W.3 were present along with the police. He does not make any reference to C.W.6 in his evidence. The police, thereafter, told him to go ahead and wait near the hanging bridge situated at Beliveedu and that they would follow them. Accordingly, they went ahead and the police along with the panchas followed them. Then, he states in his evidence that the accused led them to a Government land situate beyond the house of Jayaramegowda, from there to the junction where the land of Jayaramegowda and Dayananda are demarcated and from there to Bhadra river, and there the accused pointed out where the dead body of the deceased was concealed by them. He then states that he and Echalahole Raju jumped into the river to search the dead body and accordingly, the dead body was found. This witness (P.W.4) in the charge sheet was shown as C.W.12. He does not state anything about the accused showing the place where they killed the deceased, the place where they hatched the conspiracy, finding of slippers, etc. Similarly, his presence (P.W.4’s) has not been mentioned by P.W.2 at all in his evidence. P.W.4 also has not made any reference to C.W.6-H.R. Vishwanatha stating that he was also with them from the hanging bridge to Bhadra river. 16. P.W.6 does not make any reference either to P.W.4 or to C.W.6 Vishvanatha. He had also gone near the hanging bridge and he accompanied the panchas and the police right from the hanging bridge to Bhadra river. He has given different sequence. P.W.2 also did not make any mention of P.W.6 stating that he was also present at the time of panchanama (Ex.P-3). Having considered the aforementioned inconsistencies in the evidence of these 3 material witnesses, the evidence of recovery of articles M.Os.12 to 20 and the dead body, becomes doubtful as has rightly been observed by the Court below. 17. Learned counsel for the defence vehemently submitted that there was a possibility of the accused having seen somebody else concealing the dead body in the river or somebody else having told to the accused that the dead body was concealed there. 17. Learned counsel for the defence vehemently submitted that there was a possibility of the accused having seen somebody else concealing the dead body in the river or somebody else having told to the accused that the dead body was concealed there. Neither the court below nor the prosecution tried to bring anything on record to show as to how the accused could lead the panchas and police to the Bhadra river and recover the dead body. In short he submitted that the evidence on record, in the absence of the other material/circumstances to connect the accused persons with the alleged incident of murder, it would be difficult to presume that the dead body was concealed by the accused. It is true that possibility of accused person having seen somebody else concealing the dead body and/or having been told by some other person about the location of dead body cannot be ruled out. It is equally true that the accused, in the present case, have not explained as to how they could lead the police and the panchas to Bhadra river and pointed out the place where the dead body was concealed. The question however is whether recovery of the dead body at the instance of the accused in the facts and circumstances of the present case could be treated as conclusive in nature to hold that it is compatible only with the guilt of the accused and wholly incompatible with his innocence. This evidence, in the absence of other evidence in support, would at the most show that the accused had a knowledge where the dead body was lying. It is true, this creates suspicion about complicity of the accused but suspicion cannot be allowed to take place of the proof. The prosecution has failed to bring other material on record to support their case. 18. In the circumstances of the case, the accused in our opinion are entitled to benefit of doubt. In any case, the order of acquittal cannot be converted into an order of conviction solely on the basis of the evidence discussed above. The Court below in paragraphs 20, 21 & 22 has considered the evidence of these witnesses in order to examine recovery of the articles and the dead body. In any case, the order of acquittal cannot be converted into an order of conviction solely on the basis of the evidence discussed above. The Court below in paragraphs 20, 21 & 22 has considered the evidence of these witnesses in order to examine recovery of the articles and the dead body. Though, we do not agree withal the reasons recorded by the trial Court, but that by itself would not render the conclusion arrived at, as perverse. The learned Judge in our opinion has not committed any manifest error of law in arriving at the conclusion recorded in the Judgment in respect of this circumstance. The view taken by the learned Judge is possible and it deserves no interference having regard to the principles laid down by the Supreme Court while dealing with appeals against acquittal. 19. Overall facts and circumstances of the case, thus, show that the prosecution miserably failed to establish the motive assigned for committing the alleged offence. The prosecution has further failed to prove recovery of incriminating articles and the dead body at the instance of the accused beyond reasonable doubt. In our opinion the findings recorded by the learned Judge cannot be called perverse. We do not find strong and compelling reasons to interfere with the order of acquittal made on proper appreciation of evidence on record. The jurisdiction of the Court as is seen in dealing with appeal against the order of acquittal is circumscribed by limitation that no interference is to be made with the order of acquittal unless the approach made by the lower Court to the consideration of evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the Court below is such which could not have been arrived at by any Court acting reasonably and judiciously and is therefore, liable to be categorised as perverse. In the result, we confirm the order of acquittal and dismiss the appeal. Bail bonds, if any, stand cancelled.