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2022 (4) TMI 1563
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.... There was an altercation between the affiliated 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/complain....
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....d A-9 for offences Under Sections 460, 148, 302 read with 149 Indian Penal Code and further convicted 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-....
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.... TRIAL COURT 18. The Trial Court rendered its judgment as aforesaid by undertaking a thorough analysis through a laborious 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 inc....
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....dence shows that A4 was driving jeep towards the house of Ashraf and A5 was in the jeep. According to him he was relation with A5. 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.....
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....ll-merited judgment of the Trial Court by replacing its views with that of the Trial Court. What is required to be seen is whether the view of 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, ....
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....tisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal 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, ....
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....ingh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], 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. 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 acqui....
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.... order of acquittal though the High Court has rendered a well-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 rea....
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.... its own conclusion, of course, keeping in view the well-established Rule that the presumption of innocence of the Accused is not weakened but strengthened 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 [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., 1....
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....tail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate 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 Appella....
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....ng was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned Counsel for the Respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of 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 ....
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....e upon a large number of judgments including Shiv Ram v. State of U.P., (1998) 1 SCC 149 : 1998 SCC (Cri.) 278 : AIR 1998 SC 49 and Arun Kumar Sharma v. State of Bihar, (2010) 1 SCC 108 : (2010) 1 SCC (Cri.) 472 came to the conclusion that Code of Criminal Procedure provides for internal and external checks: one of them being the receipt of a copy of the FIR by the Magistrate concerned. It serves the purpose 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 ....
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.... hours in filing FIR in the instant case irrespective of the fact that the police station is situated only at a distance of 100 metres from the spot of incident is another factor sufficient to doubt the genuineness of the FIR. Moreover, the prosecution did not satisfactorily explain the delayed lodging of the FIR with the Magistrate. 15. This Court in Marudanal Augusti v. State of Kerala, (1980) 4 SCC 425 : 1980 SCC (Cri.) 985 while deciding 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 Procedur....
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....t of much consequence. It has been established that the father of the girl along with his brother came back to their house at 7 o'clock in the evening. The girl was unconscious during the day. PW 2 told her husband as to what had happened to their daughter. The police station was at a distance of 15 km. According to the testimony of PW 1 no mode of conveyance was available. The police was reported to the next day morning and FIR was recorded at 11.30 a.m. The delay 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. 2....
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....y not, be itself, amount to a serious infirmity in the prosecution case. But it may assume such a character if there are concomitant circumstances to suggest that the investigator was deliberately marking time with a view to decide about the shape to be given to the case and the eyewitnesses to be introduced. A catena of circumstances which lend such significance to this delay, exists in the instant case. xxx xxx xxx 29. Thus considered in the light of the surrounding circumstances, this inordinate 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 conclus....
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.... aforesaid Section should be seen with suspicion and it cannot be discarded only on the ground that it was made to a police officer during investigation. The court has to be cautious that no effort is made by the prosecution to make out a statement of the Accused with a simple case of recovery as a case of discovery of fact in order to attract the provisions of Section 27 of the Evidence Act. 26. The basic premise of Section 27 is to only partially lift the ban against admissibility of inculpatory statements made before the police, if a fact is actually discovered 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 ....
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....on great caution has to be exercised in resisting any attempt to circumvent, by manipulation or ingenuity of the Investigating Officer, the protection afforded by Section 25 and Section 26 of the Evidence Act. While considering the evidence relating to the recovery we shall have to exercise that caution and care which is necessary to lend assurance that the information furnished and the fact discovered is credible. * Aghnoo Nagesia v. State of Bihar, [(1966) 1 SCR 134] as hereunder: 9. Section 25 of the Evidence Act is one of the provisions of law dealing with confessions made by an Accused. The law relating 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 ....
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....confession to any other person made by him while in the custody of a police officer is protected by Section 26, unless it is made in the immediate presence of a Magistrate. These provisions seem to proceed upon the view that confessions made by an Accused to a police officer or made by him while he is in the custody of a police officer are not to be trusted, and should not be used in evidence against him. They are based upon grounds of public policy, and the fullest effect should be given to them. * K. Chinnaswamy Reddy v. State of A.P., [(1963) 3 SCR 412] as hereunder: 9. Let us then turn to the question whether the 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 ....
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.... time of occurrence. The Trial Court has considered this aspect, and as we find no infirmity in its reasoning, which is rendered by taking into consideration the other evidence available on record, including the deposition of the eye-witnesses, we are inclined to reject the said contention. 33. It is also contended that it would not be probable to make a reference in Ext. P1 about the registration number of vehicles which was known to P.W. 1 only the next day. Though not raised before the Trial Court, the said contention also deserves to be rejected for the reasoning aforesaid. The evidence available on record would suggest the place of occurrence and 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 injur....
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....t has adopted the principle of preponderance of probability as could be applicable to the civil cases to the case on hand when more scrutiny is warranted for reversing an order of acquittal. 38. The reasoning of the Trial Court for not going with the evidence of P.W. 21 and P.W. 46 as against A-11 and A-13 appears to be an acceptable one as it was extremely doubtful on the evidence rendered by the eye-witnesses who actually saw the occurrence from outside the house. Furthermore, these witnesses, P.W. 21 and P.W. 46, have given their statements Under Section 161 Code of Criminal Procedure only after nine days and two days delay subsequently. Therefore, we can draw 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....