TaxTMI 
TaxTMI 
TaxTMI 
2020 (9) TMI 1187
X X X X Extracts X X X X
X X X X Extracts X X X X
....herein - original Accused to undergo life imprisonment for the offences punishable Under Section 302 read with 34, Indian Penal Code, the Appellants - original Accused have preferred the present appeal. 2. That the Appellants herein - original Accused were charged for the offences punishable Under Sections 302 read with 34, 392, 420 and 201, Indian Penal Code for having committed the murder of one Deepak. That the dead body of the deceased was found on 2.9.2010 near bypass Bihali Road, Chandigarh. That the dead body was seen by one Jashwinder Singh, PW4, who informed the police station, Bhunter. On receiving such information, the police came on the spot; recorded the statement of PW4; prepared Rukka and sent the same through Constable Pushparaj, PW2 to police station, Bhunter. FIR was registered by Head Constable Tara Chand. That the dead body was identified by the father of the deceased. The investigating officer, PW18 conducted the investigation. The dead body was sent for post mortem. SHO/SI Narayan received a secret information on 5.9.2010 that one vehicle (jeep) was lying at Chandigarh in abandoned condition. IO along with the other police officers went to Chandigarh and rec....
X X X X Extracts X X X X
X X X X Extracts X X X X
....eep. That on appreciation of evidence, the learned trial Court found that the prosecution withheld the material information with respect to the sniffer dogs and on appreciation of evidence found that the recoveries were made earlier and the panchnama of the same were prepared subsequently on which PW5 and PW6 put their signatures. Having found that the prosecution has failed to establish and prove the complete chain of events and that it was a case of circumstantial evidence, by a detailed judgment and order, the learned trial Court acquitted both the Accused for the offences for which they were tried. 2.2. On appeal by the State, by the impugned judgment and order, the High Court has reversed the judgment and order of acquittal passed by the learned trial Court and consequently has convicted the Accused for the offences punishable Under Sections, 302 read with 34, 392, 420 and 201, Indian Penal Code. By the impugned judgment and order, the High Court has sentenced the Appellants - original Accused to undergo life imprisonment for the offence Under Section 302 read with 34, Indian Penal Code. The High Court has also sentenced the Appellants to undergo rigorous imprisonment for a p....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ure statements of the Accused persons on 09.09.2010 was concocted one and to fill up the gaps in the prosecution case; (viii) that even the recovery of photographs, mobile phone of PW7 and the jeep from Chandigarh on 6.9.2010 is itself very doubtful, which came to be considered in detail by the learned trial Court; (ix) that even the conduct of Bhuntar police and the IO in not informing or taking help of the jurisdictional police and Chandigarh police while conducting investigation in those areas, as required Under Section 166(3) Code of Criminal Procedure and other lapses has made the entire prosecution case full of doubts and suspicious; (x) that even the IO has not tried to examine any independent witness of Chandigarh, though several people were there at the time of recovery; (xi) that even the recovery of mobile of PW7 is very doubtful. The IO never tried to find out the call details of recovered mobile. Even he did not look into call-log of the mobile himself in order to find out the contact details of the real culprits. Even the IO did not enquire that after robbing the mobile of PW7, who were the persons contacted by the miscreants; how was the mobile used by the Accuse....
X X X X Extracts X X X X
X X X X Extracts X X X X
....ndent - State of Himachal Pradesh. 4.1. It is submitted that in the present case the High Court has after re-appreciation of entire evidence on record, found the Accused guilty for the unnatural death of Deepak Kumar deceased. It is submitted that as such the re-appreciation of the entire evidence by the first appellate court is permissible; 4.2. It is submitted that the High Court, on re-appraisal of the entire evidence on record, has considered the following circumstances pointing to the guilt of the Accused: (a) recovery of jeep, mobile phone and photographs from Chandigarh (b) recovery of weapon of offence on the disclosure statement of Appellant No. 1 - Anwar Ali (c) recovery of crates on the disclosure statement of Appellant No. 1 - Anwar Ali (d) recovery of clothes of Accused (e) medical evidence (f) no defence evidence led 4.3. It is submitted that the High Court has given cogent reasons while considering the afore-stated circumstances against the Accused. It is submitted that the High Court has convicted the Accused on re-appreciation of the entire evidence on record, more particularly the deposition of PW1, PW3, PW4, PW5, PW11 and PW18. 4.4. Now so far as the su....
X X X X Extracts X X X X
X X X X Extracts X X X X
....he High Court has committed a grave error in interfering with the order of acquittal passed by the learned trial Court is concerned, it is submitted that in the present case of circumstantial evidence, the factum probandum or the primary fact stands established and having regard to the common cause and natural events and to human conduct and their relations, the complete chain of circumstances indicating the guilt of the Accused is established. Reliance is placed upon the decision of this Court in the case of G. Parshwanath v. State of Karnataka, (2010) 8 SCC 593 (paragraphs 22 to 24). Heavy reliance is also placed on the recent decision of this Court in the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436, paragraphs 30, 31, 31.1, 31.2, 31.3, 31.4 and 32 of the said decision. It is submitted that in the aforesaid decision, after considering the entire law on interference by the High Court with an order of acquittal, it is observed and held that once the appeal is entertained against the order of acquittal, the High Court would be entitled to re-appreciate the entire evidence independently and come to its own conclusion. However, ordinarily, the High Court would g....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P. (1975) 3 SCC 219, Shambhoo Missir v. State of Bihar (1990) 4 SCC 17, Shailendra Pratap v. State of U.P. (2003) 1 SCC 761, Narendra Singh v. State of M.P. (2004) 10 SCC 699, Budh Singh v. State of U.P. (2006) 9 SCC 731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State of A.P. (2009) 16 SCC 98 and Ram Singh v. State of H.P. (2010) 2 SCC 445) 13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy Council observed as under: (IA p. 404) ... the High Court should and will always give proper weight a....
X X X X Extracts X X X X
X X X X Extracts X X X X
....is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 6. In Ghurey Lal v. State of U.P. (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which the trial courts have acquitted the Accused, should bear in mind that the trial court's acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses. 17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court again examined the earlier judgments of this Court and laid down that: (SCC p. 374, para 20) 20. ... an order of acquittal should not be lightly interfered with even if the court believes that there is some evidence pointing out the finger towards the Accused. 18. In State of U.P. v. Banne (2009) 4 SCC 271, this....
X X X X Extracts X X X X
X X X X Extracts X X X X
....n v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P. (2009) 10 SCC 636). (emphasis supplied) 5.2.3. It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with. 5.3 In the recent decision of Vijay Mohan Singh (supra), this Court again had an occasion to consider the scope of Section 378 Code of Criminal Procedure and the interference by the High Court in an appeal against acquittal. This Court considered catena of decisions of this Court right from 1952 onwards. In paragraph 31, it is observed and held as under: 31. An identical question came to be considered before this Court in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before this Court, the High Court interfered with the order....
X X X X Extracts X X X X
X X X X Extracts X X X X
....l-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has....
X X X X Extracts X X X X
X X X X Extracts X X X X
....d by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the Accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State AIR 1952 SC 52; Wilayat Khan v. State of U.P. AIR 1953 SC 122) In our opinion, there is no substance in the contention raised on behalf of the Appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 31.4. In K. Gopal Reddy v. State....
X X X X Extracts X X X X
X X X X Extracts X X X X
....umstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, para 153) (i) the circumstances from which the conclusion of guilt is to be drawn should be fully established. The circumstances concerned "must" or "should" and not "may be" established; (ii) the facts so established should be consistent only with the hypothesis of the guilt of the Accused, that is to say, they should not be explainable on any other hypothesis except that the Accused is guilty; (iii) the circumstances should be of a conclusive nature and tendency; (iv) they should exclude every possible hypothesis except the one to be proved; and (v) there must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the Accused and must show that in all human probability the act must have been done by the Accused. A similar view has been reiterated by this Court in State of U.P. v.....
X X X X Extracts X X X X
X X X X Extracts X X X X
....tion would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the Accused and should exclude every hypothesis except the one sought to be proved. But this does not mean that before the prosecution can succeed in a case resting upon circumstantial evidence alone, it must exclude each and every hypothesis suggested by the Accused, howsoever, extravagant and fanciful it might be. There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the Accused and must show that in all human probability the act must have been done by the Accused, where various links in chain are in themselves complete, then the false plea or false defence may be called into aid only to lend assurance to the court. 6. Applying the law laid down by this Court in the aforesaid decisions to the facts of the case on hand, it is to be considered, whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Cour....
X X X X Extracts X X X X
X X X X Extracts X X X X
....nife and rope was recovered on 2.9.2010. In cross-examination, the IO admitted that he visited the spot from where the knife was recovered with sniffer dogs on 2.9.2010. He has also admitted in the cross-examination that this fact has not been mentioned in the FIR or in the statement of any witness. Thus, the prosecution and the IO suppressed the material facts. Even in the cross-examination, the IO has stated that the sniffer dog had done nothing on the spot. In the cross-examination, he has also specifically stated that "it is incorrect to suggest that the sniffer dog had traced the strings Ex. P52, knife Ex. P59 and vest Ex. P54. However, PW4 and PW5 in their deposition have categorically stated that the knife and rope were recovered on 2.9.2010. The aforesaid cannot be said to be minor contradictions. Therefore, the trial Court was justified in not believing the disclosure statements of the Accused and the recovery of the knife, rope etc. on 9.9.2010 as alleged by the prosecution. From evidence, it emerges that the knife, rope and vest were recovered on 2.9.2010 i.e., much prior to 8.9.2010 when the Accused were arrested. 7. Even the recovery of jeep from Chandigarh and recove....
X X X X Extracts X X X X
X X X X Extracts X X X X
.....P. v. Kishanpal (2008) 16 SCC 73, this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, paras 38-39) 38. ... the motive is a thing which is primarily known to the Accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime. 39. The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the Accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive for the Accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction. 26. This Court has also held that the absence of motive in a c....