Case Comment on Split Verdict in Ganesh Shamrao Andekar & Anr. v. State of Maharashtra (2017)

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Ganesh Shamrao Andekar & Anr. v. State of Maharashtra (Judgment dated 30.04.2007 in Criminal Appeal No. 547 of 2007)

It is only in few cases where direct appeal is maintainable from the decision of the High Court to the Supreme Court. Section 379 of the Code of Criminal Procedure, 1973 is illustrative of one such instance wherein appeal lies to the Supreme Court, “if High Court reversed an order of acquittal of accused person and convicted him and sentenced him to death or imprisonment for life or to imprisonment for a term ten years or more.”

The law on the appreciation of evidence by the appellate court in reversing the acquittal order is no more res integra. The principles for ‘reversal of acquittal order’ may be summarized as hereunder:

  1. In appeal against acquittal the power of the High Court to review the evidence is unfettered.
  2. There is initial presumption of innocence in favor of the accused. This presumption is fortified when the trial court acquits the accused. High Court in such cases should reverse the acquittal with circumspection only when there are substantial and compelling reasons or there are good and cogent reasons with the High Court so as to declare the trial court order as manifestly erroneous, demonstrably unsustainable or palpably wrong. Thus, the trial court decision in such cases should not be interfered unless there are glaring mistakes or errors of fact or law in it
  3. Also, if two opinions emerge from the same facts then the appellate court must adopt the one in favour of accused.

(Per Swatenter Kumar J. in Govindaraju alias Govinda v. State & Anr. (2012) 4 SCC 722)

A recent instance is the case of Ganesh Shamrao Andekar in which Bombay High Court, in a matter under section 302 read with section 34 of the Indian Penal Code, 1860, reversed the verdict of the trial court and convicted the accused to undergo life imprisonment. The matter went to the Division Bench of the Supreme Court comprising of Prafulla C. Pant & Rohintan F. Nariman JJ. Their lordships in the matter gave a split verdict. While, J. Pant after appreciating the evidence confirmed the order of conviction by High Court on the ground that trial court judgment is perverse (para 19), on the other side, J. Nariman reasoned that there is nothing in the trial court order to warrant interference by the High Court.

Procedurally, when there is a conflict of opinion in Division Bench, the matter is listed by the Chief Justice of India before the three judge bench as it was done recently in the case of K. Anbazhagan v. State of Karnataka & Ors.  (Judgment dated 27.04.2015 in Criminal Appeal No.637 Of 2015)

It is manifest from the Division Bench judgment that there are two reasonably possible views apparent from the facts of the Ganesh Shamrao Andekar case, one is by Justice Pant and the other is by Justice Nariman. Therefore, without going into the merits of the case, it can be safely said that, since the split judgment demonstrates that there are two views, accused should be given the benefit of favourable view.

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To fortify the above contention one can rely on the ratio State of Rajasthan, Through Secretary, Home Department v. Abdul Mannan (2011) 8 SCC 65 wherein the division bench of Supreme Court observed,

“When an accused is acquitted of a criminal charge, a right vest in him to be a free citizen and this Court is very cautious in taking away that right. The presumption of innocence of the accused is further strengthened by the fact of acquittal of the accused under our criminal jurisprudence. The courts have held that if two views are possible on the evidence adduced in the case, then the one favourable to the accused, may be adopted by the court. However, this principle must be applied keeping in view the facts and circumstances of a case and the thumb rule is that whether the prosecution has proved its case beyond reasonable doubt.” (para 13) (emphasis supplied by me)

In the case at hand, there is no doubt that prosecution hasn’t proved the case ‘beyond reasonable doubt’ because, facts and evidences leaves much to say to safely upheld the guilt of the accused. But, Justice Pant has reduced the standard of ‘beyond reasonable doubt’ in reaching his plausible view. Justice Pant in para 16 of his judgment observes,

“…. This Court in State of Punjab Vs. Karnail Singh (2003) 11 SCC 271 (Para 12), has held that the prosecution is not required to meet any and every hypothesis put forward by the accused. It must grow out of the evidence in the case. If a case is proved perfectly, it can be argued that it is artificial, and where the case has some flaws inevitable because human beings are prone to err, it is argued that it is a doubtful story. Proof beyond reasonable doubt is a guideline, not a fetish. A judge does not preside over a criminal trial merely to see that that no innocent man is punished. A judge also presides to see that a guilty man does not escape. Both are public duties.”  (emphasis supplied by me)

Thus, the question which this ‘split judgment’ raises is more of jurisprudential than evidential.

It is based on the maintaining delicate balance between an age old theory which has governed the criminal law since centuries (let hundred accused go free but one innocent shall not be punished) and a theory which has evolved judicially from the experience of judges that (guilty man must not escape the clutches of law). While, the former is based on the ‘moral limits of the criminal law’, the latter is based on the ‘principles of prudence’.

Now, it will be for a reconstituted bench to settle the dispute jurisprudentially or evidentiary. The fear in adopting the latter approach would be that similar questions would keep on coming up if not finally settled, but, danger in the former approach is that it may take away much celebrated concept of ‘judicial flexibility’.

Actual judgment can be accessed here.

Chirag Balyan is an Assistant Professor of Law at Maharashtra National Law University Mumbai.

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