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2022 (4) TMI 1563
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....political members of CPI (M) and NDF on 17.07.2002 at about 4:00 p.m. with the deceased and P.W. 8 as the CPI(M) members, and A-3 and A-10 as that of NDF. In the altercation the deceased had reportedly assaulted A-3. 3. Seeking to avenge, the Accused, being 16 in numbers, assembled at the family house of A-5 on the same day (i.e. 17.07.2002) at about 7:00 p.m. and hatched a conspiracy to take out the life of the deceased. In pursuance to the aforesaid decision, A-1 to A-13 went to the residence of the deceased on 18.07.2002 at about 9:30 p.m. in three material objects, namely, - (i) an auto-rickshaw, (ii) a motorbike, and (iii) a jeep, armed with deadly weapons like swords, knives, chopper, etc. While four of them (A-7, A-10, A-12, and A-13) waited outside, the others (A-1 to A-6, A-8, A-9, and A-11) barged in and indiscriminately attacked the deceased. In the process, they also exploded country bombs on two occasions. 4. The occurrence was witnessed by P.W. 1, the author of the First Information Report - Ext. P-1 and others. For the occurrence, which took place at about 9.30 p.m. on 18.07.2002, the registration of FIR/complaint was done in Crime No. 237/2002 at about 11.00 p.m. ....
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....ted them Under Section 427 Indian Penal Code and Section 3 of the Explosives Substances Act. The appeal filed by the State against the order of acquittal in favour of A-14 to A-16 was dismissed, while it was accordingly allowed by overturning the acquittal qua A-10 to A-13. As the legal battle against A-14 to A-16 attained finality, the convicted Accused have filed these appeals. EVIDENCE BEFORE THE COURT 10. P.W. 1 is the relative of the deceased who had seen the occurrence from inside the house, hiding behind the chairs. All the Accused are known to him. He attributed specific overt acts against a few Accused and identified a few of them. However, this witness could not identify A-11, not even named in Ext. P-1, i.e. first information report, despite being a known person. Similarly, he does not identify A-10. 11. P.W. 2 is the father of the deceased, who also took cover protecting himself by staying in a nearby room. Despite being an eye-witness and knowing the Accused, he wrongly identified A-10 as A-5. P.W. 2 also does not identify A-11 and A-12. 12. P.W. 3 is the maid-servant working at the residence of the deceased at the relevant point of time. She also wrongly identifie....
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....orious process. It took into consideration each and every aspect of evidence before rendering its decision. Perhaps, the only exercise not done was with respect to the recovery qua A-10 to A-13, particularly on the evidentiary value. 19. It found that A-2, A-4, A-5, A-8, and A-9 have clinching evidence staring at them. The evidence of eye-witnesses, as well as that of experts, was taken into account. The contentions regarding the delay in sending Ext.P-1 - first information report and the injuries suffered by A-8 and A-9 were duly considered. These two Accused took the same plea Under Section 313 Code of Criminal Procedure questioning, denying their existence at the place of occurrence. The case projected by the defense that the witnesses are either set up by the prosecution or interested in securing the conviction was not accepted by giving adequate reasoning. After concluding that there is insufficient evidence to support the charge attracting Section 120B of the Indian Penal Code, A-14 to A-16 were acquitted. 20. It acquitted A-10 to A-13 based on the inconsistencies in eye-witness statements. Two material objects, a motorbike and an auto-rickshaw were found unrelated to the o....
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....There is no evidence to corroborate his testimony that A11 has driven motor cycle towards the house of Ashraf. PW21 though narrated the presence of Accused Nos. 2, 4, 5, 8, 9, 11 and 13 he says that 4 Accused has broken the glasses of motor cycle and car. He also stated that A4 took A8 and A9 in front of the house were A11 and A 13 were present. No overt act stated against A 11. He could identify A2, A4, A5, A8 and A9, stated that A13 Kochansar exploded bomb. As per the prosecution records no Accused named Kochansar. The name of A13 is Ansarudheen. The prosecution failed to prove that A13 Ansarudheen is also known as Kochansar. Therefore the evidence of PW21, PW32 and PW46 that A13 exploded bomb at the yard of the house cannot be believed. The prosecution could not prove that impact of Explosion at the yard or nearby place. Hence it cannot be held that the Accused are guilty of offence Under Section 3 and 5 Explosive Substance Act. The above witnesses not properly identified A13. The above prosecution witnesses properly identified A2, A4, A5, A8 and A9. The prosecution evidence proved that the Accused Nos. 2,4,5,8 and 9 formed an unlawful assembly at the yard of the house committed....
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....f the Trial Court is a possible one. The High Court has committed an error in placing reliance upon recoveries. It did not go into the manner in which the recoveries have been made. Section 149 Indian Penal Code though being a substantive offence, is to be proved in the manner known to law. There must be a proof of common object. When the witnesses are not able to identify the Accused, the testimonies rendered would become highly doubtful. The learned Senior Counsel took us through the law laid down by this Court in Mohan @ Srinivas @ Seena @Tailor Seena v. State of Karnataka, wherein it was held that when after due examination and review of evidence, the Trial Court has passed an order of acquittal, the exercise of the power of the High Court as imposed by the code must be with circumspect. SUBMISSIONS ON BEHALF OF THE STATE 24. It is submitted that in the absence of any apparent illegality, the concurrent decisions rendered by the courts do not warrant any interference. Both the Courts below considered all the evidence, eye-witnesses, material objects and recoveries while also taking into account the scientific evidence. The motive has also been proved through the prior occurre....
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....quittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the Accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal. 21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity. 22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is exp....
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....ble 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. 14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri.) 586], this Court again had an occasion to consider the scope of Section 378 Code of Criminal Procedure and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under: 31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri.) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitti....
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.... 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 to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case. 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnitha....
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....es 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 [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : 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 [K. Gopal Reddy v. State of A.P.....
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....late court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the Accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence 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. 21. Further in the judgment in Murugesan [Murugesan v. State, (2012) 10 SCC 383 : (2013) 1 SCC (Cri.) 69] relied on by the learned Senior Counsel for the Appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. ....
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.... this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place. 24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the Appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the Appellant-Accused, the Appellant was not there in the office and office was open and people were moving out and in from the office of the Appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the....
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....rpose that the FIR be not ante-timed or ante-dated. The Magistrate must be immediately informed of every serious offence so that he may be in a position to act Under Section 159 Code of Criminal Procedure, if so required. The object of the statutory provision is to keep the Magistrate informed of the investigation so as to enable him to control the investigation and, if necessary, to give appropriate direction. However, it is not that as if every delay in sending the report to the Magistrate would necessarily lead to the inference that the FIR has not been lodged at the time stated or has been ante-timed or ante-dated or the investigation is not fair and forthright. In a given case, there may be an explanation for delay. An unexplained inordinate delay in sending the copy of the FIR to the Ilaqa Magistrate may affect the prosecution case adversely. However, such an adverse inference may be drawn on the basis of attending circumstances involved in a case. * Rajeevan v. State of Kerala, [(2003) 3 SCC 355] as hereunder: 12. Another doubtful factor is the delayed lodging of FIR. The learned Counsel for the Appellants highlights this factor. Here it is worthwhile to refer Thulia Kal....
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....ding a case which involves a question of delayed dispatch of the FIR to the Magistrate, cautioned that such delay would throw serious doubt on the prosecution case, whereas in Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 : 1994 SCC (Cri.) 1551 it was reminded by this Court that: (SCC p. 382, para 24) [T]he forwarding of the occurrence report is indispensable and absolute and it has to be forwarded with earliest dispatch which intention is implicit with the use of the word 'forthwith' occurring in Section 157 Code of Criminal Procedure, which means promptly and without any undue delay. The purpose and object is very obvious which is spelt out from the combined reading of Sections 157 and 159 Code of Criminal Procedure. It has the dual purpose, firstly to avoid the possibility of improvement in the prosecution story and introduction of any distorted version by deliberations and consultation and secondly to enable the Magistrate concerned to have a watch on the progress of the investigation. * State of Rajasthan v. Om Prakash, [(2002) 5 SCC 745] as hereunder: 9. There was delay of nearly 26 hours in lodging the FIR. The offence is alleged to have taken place at a....
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....ay in reporting the matter to the police has thus been fully explained. Delay in Recording the Statement Under Section 161 Code of Criminal Procedure: 28. The Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense. An inordinate and unexplained delay may be fatal to the prosecution's case but only to be considered by the Court, on the facts of each case. There may be adequate circumstances for not examining a witness at an appropriate time. However, non-examination of the witness despite being available may call for an explanation from the Investigating Officer. It only causes doubt in the mind of the Court, which is required to be cleared. 29. Similarly, a statement recorded, as in the present case, the investigation report is expected to be sent to the jurisdictional Magistrate at the earliest. A long, unexplained delay, would give room for suspicion. Precedents: * Shahid Khan v. State of Rajasthan, [(2016) 4 SCC 96] as hereunder: 20. The statements of PW 25 Mirza Majid Beg and PW 24 Mohamed Shakir were recorded after 3 days of the occurrence. No explanation is forthcoming as to why they were not examin....
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.... delay in registration of the 'F.I.R.' and further delay in recording the statements of the material witnesses, casts a cloud of suspicion on the credibility of the entire warp and woof of the prosecution story. xxx xxx xxx 47. All the infirmities and flaws pointed out by the trial Court assumed importance, when considered in the light of the all-pervading circumstance that there was inordinate delay in recording Ravji's statement (on the basis of which the "F.I.R." was registered) and further delay in recording the statements of Welji, Pramila and Kuvarbai. This circumstance, looming large in the back-ground, inevitably leads to the conclusion, that the prosecution story was conceived and constructed after a good deal of deliberation and delay in a shady setting, highly redolent of doubt and suspicion. Recovery Under Section 27 of the Evidence Act: 30. Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility Under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, Accused of an offense. Th....
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....scovered in consequence of the information received from the Accused. Such condition would afford some guarantee. We may additionally note that, the courts need to be vigilant while considering such evidence. 27. This Court in multiple cases has reiterated the aforesaid principles Under Section 27 of the Evidence Act and only utilised Section 27 for limited aspect concerning recovery (refer Pulukuri Kotayya v. King Emperor, (1946-47) 74 IA 65; Jaffar Hussain Dastagir v. State of Maharashtra, (1969) 2 SCC 872 : AIR 1970 SC 1934). As an additional safeguard we may note that reliance on certain observations made in certain precedents of this Court without understanding the background of the case may not be sustainable. There is no gainsaying that it is only the ratio which has the precedential value and the same may not be extended to an obiter. As this Court being the final forum for appeal, we need to be cognizant of the fact that this Court generally considers only legal aspects relevant to the facts and circumstances of that case, without elaborately discussing the minute hyper-technicalities and factual intricacies involved in the trial. * Navaneethakrishnan v. State, [(2018)....
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....lating to confessions is to be found generally in Sections 24 to 30 of the Evidence Act and Sections 162 and 164 of the Code of Criminal Procedure, 1898. Sections 17 to 31 of the Evidence Act are to be found under the heading "Admissions". Confession is a species of admission, and is dealt with in Sections 24 to 30. A confession or an admission is evidence against the maker of it, unless its admissibility is excluded by some provision of law. Section 24 excludes confessions caused by certain inducements, threats and promises. Section 25 provides: "No confession made to a police officer, shall be proved as against a person Accused of an offence". The terms of Section 25 are imperative. A confession made to a police officer under any circumstances is not admissible in evidence against the Accused. It covers a confession made when he was free and not in police custody, as also a confession made before any investigation has begun. The expression "Accused of any offence" covers a person Accused of an offence at the trial whether or not he was Accused of the offence when he made the confession. Section 26 prohibits proof against any person of a confession made by him in the custody of a ....
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....e statement of the Appellant to the effect that "he had hidden them (the ornaments)" and "would point out the place" where they were, is wholly admissible in evidence Under Section 27 or only that part of it is admissible where he stated that he would point out the place but not that part where he stated that he had hidden the ornaments. The Sessions Judge in this connection relied on Pulukuri Kotayya v. King-Emperor [(1946) 74 IA 65] where a part of the statement leading to the recovery of a knife in a murder case was held inadmissible by the Judicial Committee. In that case the Judicial Committee considered Section 27 of the Indian Evidence Act, which is in these terms: Provided that, when any fact is deposed to as discovered in consequence of information received from a person Accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. This Section is an exception to Sections 25 and 26, which prohibit the proof of a confession made to a police officer or a confession made while a person is in police custody, unless it is made in immedia....
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....d the manner in which it happened. The Trial Court found acceptance of the testimonies of the witnesses who saw the occurrence. The deposition was rendered by P.W. 1 after the registration of Exhibit P1. This would not materially alter the case of the prosecution. 34. Though A-8 and A-9 were injured, they have taken a plea that they were not present at the place of occurrence. The Trial Court was right in holding that the doctor's evidence and the evidence of the eye-witnesses would clearly explain the reasons behind the injury suffered. The Accused (A-8 and A-9) suffered the injury at the place of occurrence, which they denied. Thus, the said contention raised also deserves to be rejected. 35. We find that nothing has been elicited from the eye-witnesses insofar as the aforesaid Accused are concerned to impeach through their evidence. Merely because the witnesses are family members apart from being chance witnesses, their testimonies cannot be rejected. P.W.'s 4 and 21 are likely to be seen near the place of occurrence. P.W. 21 was working in the theatre nearby, and P.W. 4 was a neighbour. Though they would not have seen the occurrence from inside the house, their presen....
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....raw our analogical reasoning since the evidentiary arguments raised on behalf of the statements provided by these witnesses raise suspicion and are likely to mislead or, at any rate, not firm enough to support a seriously contested conclusion. Thus, to the Trial Court's decision, we give our approval. 39. The High Court placed its reliance also on the recovery coupled with the scientific evidence. We believe that such recoveries are expected to be proved if relied upon by the Court. As against P.W. 35, who signed the recovery mahazar, he was not even acquainted with the place and lived in a far distant area. Similarly, P.W. 33 is not a resident of the locality. Except for P.W. 4, the other witnesses have not identified the material object recovered. 40. P.W. 40, who signed the recovery mahazar qua A-11, turned hostile. Furthermore, the arrest of A-11 was made on 05.08.2002, while the recovery was made on 13.08.2002, creating a serious doubt. 41. For the recovery made from A-12 also, there is no confirmation from P.W. 1 to P.W. 3. P.W. 34, who signed a mahazar is also a CPI(M) party member. We may also hasten to add that P.W. 64, Investigating Officer, feigns ignorance of the....