Tag Archives: Acquittal

If Apex Court is of opinion that acquittal is not based on a reasonable view, then it may review entire material and there will be no limitation on Apex Court’s jurisdiction under Article 136 .

In State of Rajasthan Versus Islam and others [AIR 2011 SC 2317 : JT 2011 (6) SC 452 : (2011) 6 SCALE 389 : (2011) 6 SCC 343 : (2011) 2 SCC (Cri) 951]

When Supreme  Court exercises its jurisdiction under Article 136, it definitely exercises a discretionary jurisdiction but such discretionary jurisdiction has to be exercised in order to ensure that there is no miscarriage of justice. If the consideration by the High Court is misconceived and perverse as indicated above, there is nothing in law which prevents this Court from exercising its jurisdiction under Article 136 against an order of acquittal when such acquittal cannot be sustained at all, in view of the evidence of record.

15. The golden thread which runs through the administration of justice in criminal cases is that if two views are possible, one pointing to the guilt of the accused and the other to the 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 a conviction of an innocent.

16. The principle to be followed by appellate court considering an appeal against an order of acquittal is to interfere only when there are compelling and substantial reasons to do so.

17. Thus, in such cases, this Court would usually not interfere unless

a. The finding is vitiated by some glaring infirmity in the appraisal of evidence. (State of U.P. v. Sahai, AIR 1981 SC 1442 at paras 19-21)

b. The finding is perverse. (State of M.P. v. Bachhudas, (2007) 9 SCC 135 at para 10 and State of Punjab v. Parveen Kumar, (2005) 9 SCC 769 at para 9)

c. The order suffers from substantial errors of law and fact (Rajesh Kumar v. Dharamvir, (1997) 4 SCC 496 at para 5)

d. The order is based on misconception of law or erroneous appreciation of evidence (State of U.P. v. Abdul, (1997) 10 SCC 135; State of U.P. v. Premi, (2003) 9 SCC 12 at para 15)

e. High Court has adopted an erroneous approach resulting in miscarriage of justice (State of T.N. v. Suresh, (1998) 2 SCC 372 at paras 31 and 32; State of M.P. v. Paltan Mallah, (2005) 3 SCC 169 at para 8)

f. Acquittal is based on irrelevant grounds (Arunachalam v. Sadhanatham, (1979) 2 SCC 297 at para 4

g. High Court has completely misdirected itself in reversing the order of conviction by the Trial Court (Gaurishanker Sharma v. State of U.P., AIR 1990 SC 709)

h. The judgment is tainted with serious legal infirmities (State of Maharashtra v. Pimple, AIR 1984 SC 63 at para 75)

18. In reversing an acquittal, this Court keeps in mind that presumption of innocence in favour of the accused is fortified by an order of acquittal and if the view of the High Court is reasonable and founded on materials on record, this Court should not interfere.

19. However, if this Court is of the opinion that the acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on this Court’s jurisdiction under Article 136 to come to a just decision quashing the acquittal (See, (1985) 4 SCC 476 at para 45; (1996) 7 SCC 471 at para 4)

 

When the appellate court should interfere with the order of acquittal

The High Court did not even make any reference to him. It is a settled legal proposition that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse i.e. the conclusions of the courts below are contrary to the evidence on record or its entire approach in dealing with the evidence is patently illegal, leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case, the appellate court should interfere with the order of acquittal. While doing so, the appellate court should bear in mind the presumption of innocence of the accused and further that the acquittal by the courts below bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

(See: Babu v. State of Kerala (2010) 9 SCC 189; Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra, (2010) 13 SCC 657; Brahm Swaroop and Anr. v. State of U.P., AIR 2011 SC 280; S. Ganesan v. Rama Raghuraman and Ors., (2011) 2 SCC 83; V.S. Achuthanandan v. R. Balakrishna Pillai and Ors., (2011) 3 SCC 317; State of M.P. v. Ramesh and Anr., (2011) 4 SCC 786; Abrar v. State of U.P., (2011) 2 SCC 750; and Rukia Begum and Ors. v. State of Karnataka, (2011) 4 SCC 779)

 

Bannareddy & Ors. Vs. State of Karnataka & Ors.[ALL SC 2018 MARCH]

KEYWORDS:-Acquittal –

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DATE:- March 12, 2018

The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself.

  • motive becomes irrelevant in the presence of direct evidences
  • The trial court noted that the victims were trying to generate incriminating evidences against the accused-appellants.
  • prosecution case suffers from several contradictions and infirmities.

ACTS:-Section 148 read with Section 149 AND  S. 307, 341 of the Indian Penal Code

SUPREME COURT OF INDIA

Bannareddy & Ors. Vs. State of Karnataka & Ors.

[Criminal Appeal No. 382 of 2018 arising out of S.L.P. (CRL.) No. 9794 of 2017]

N.V. RAMANA, J.

1. Leave granted.

2. This appeal by special leave is directed against the judgment dated 29th November, 2017 passed by the High Court of Karnataka, Bench at Dharwad in Criminal Appeal No. 100108 of 2014.

3. Vide impugned judgment, the appellants were convicted in the following manner

i. Under Section 148 read with Section 149 of the Indian Penal Code (hereinafter “IPC”) were sentenced to undergo a simple imprisonment of 18 months and a fine of Rs. 3,000/-, in default of payment of fine they have to undergo further simple imprisonment for one month;

ii. Under Section 341 read with Section 149 of IPC were sentenced to undergo a simple imprisonment for a period of fifteen days and a fine of Rs. 200/- was imposed, in default of payment of fine they have to undergo further simple imprisonment for a period of one week;

iii. Under Section 504 read with Section 149 of the IPC and have to undergo simple imprisonment for a period of one year and a fine of Rs. 1000/- was imposed, in default of payment of fine they have to further undergo simple imprisonment for a period of fifteen days;

iv. Under Section 326 read with Section 149 of IPC, each of the accused were sentenced to further undergo simple imprisonment for a period of four years and shall pay a fine of Rs. 6000/-, in default of payment of fine to undergo simple imprisonment for a period of two months.

4. Before we delve into the merits and analysis of the case, it would be trite to refer to the Prosecution’s case. On 29.08.2008, when the village fair was ongoing, the accused no-2 (Dharmareddy) picked up quarrel with P.W.2 (Hemaraddi), wherein the second accused threatened to finish P.W.2 (Hemaraddi), but this was pacified with the intervention of the persons present there. On the same day when P.W.5 (Sanjeevareddy), P.W.2 (Hemaraddi) & P.W.3 (Lingareddy) were walking to the house, at around 09:30 pm, the accused persons armed with iron rods, clubs etc. approached them and started abusing them and restrained them.

Thereafter, they started assaulting the victims, viz. P.W.5 (Sanjeevareddy), P.W.2 (Hemaraddi) & P.W.3 (Lingareddy). Certain witnesses intervened and rescued the complainant and other victims immediately. As the P.W.2 and P.W.3 were injured, they were taken to Navalgund Government Hospital and later to KIMS Hospital, Hubli, thereafter they were transferred to the Sushruta Multi Speciality Nursing Home.

5. The complainant P.W.5, (Sanjeevareddy) gave a complaint to the police which was registered as Crime No. 194/2008 on 29.08.2008 against the accused under Sections 143, 147, 148, 323, 324, 341, 307, 504, 506 read with 149 of IPC. Thereafter in the morning of 30.08.2008, the clubs and iron rods were recovered from the possession of the accused-appellant Bannareddy in the presence of P.W.6 (Devareddy) and P.W.9 (Fakkirappa). On the same day the bloodstained cloths were recovered from the possession of the accused appellant no. 1 in the presence of panch witnesses. The bloodstained clothes were recovered from the possession of the injured Lingareddy in the presence of P.W.7 & P.W.8. Spot mazhar was conducted and sample of blood stained earth was collected for chemical analysis in the presence of mazhar witnesses.

6. The trial Court, after careful perusal of oral and documentary evidence available on record, by judgment dated 18.01.2014, came to the conclusion that the prosecution failed to prove the alleged offences against the accused beyond reasonable doubt. Hence, the accused were acquitted for the offences punishable under Sections 143, 147, 148, 341, 504 and 307 read with 149 of IPC.

7. Thereafter, the State preferred the appeal before the High Court in Criminal Appeal No.100108/2014 against the above order of acquittal passed by the trial Court, wherein the High Court, by reversing the order of acquittal passed by the trial Court, had convicted the accused under Sections 148, 341, 504 and 326 read with 149 of IPC. Therefore, being aggrieved by the above order of conviction, the accused appellants have approached this Court.

8. Before us, learned counsel appearing on behalf of the appellants contended that the prosecution case is full of contradictions and the material evidence available on record is highly inconsistent and the order of the High Court, reversing an order of acquittal, is unsustainable. Learned counsel has also apprised us about the existence of a compromise entered into between the parties, but it is not possible under law to give effect to the same and compound the offence as the offences charged are not compoundable under Section 320 of Cr.P.C.

9. Per contra, learned counsel appearing on behalf of the State supported the impugned judgment of the High Court convicting the accused-appellants.

10. Heard both the counsels. As the offences alleged are not compoundable, notwithstanding the fact that the parties have entered into a compromise, we will deal with the matter on merits.

11. Before we proceed further to peruse the finding of the High Court, it is relevant to discuss the power and jurisdiction of the High Court while interfering in an appeal against acquittal. It is well settled principle of law that the High Court should not interfere in the well reasoned order of the trial court which has been arrived at after proper appreciation of the evidence. The High Court should give due regard to the findings and the conclusions reached by the trial court unless strong and compelling reasons exist in the evidence itself which can dislodge the findings itself. This principle has further been elucidated in the case of Sambhaji Hindurao Deshmukh and Ors. vs. State of Maharashtra, (2008) 11 SCC 186, para 13, wherein this Court observed that:

“……The High Court will interfere in appeals against acquittals, only where the trial court makes wrong assumptions of material facts or fails to appreciate the evidence properly. If two views are reasonably possible from the evidence on record, one favouring the accused and one against the accused, the High Court is not expected to reverse the acquittal merely because it would have taken the view against the accused had it tried the case. The very fact that two views are possible makes it clear that the prosecution has not proved the guilt of the accused beyond reasonable doubt and consequently the accused is entitled to benefit of doubt.”

12. It is not in dispute that the presumption of innocence is further reinforced, reaffirmed and strengthened against the acquitted accused by the judgment in his favor. [Vide Rabindra Kumar Pal @ Dara Singh vs. Republic of India, (2011) 2 SCC 490 in para. 94].

13. In light of the above well settled principles, we would proceed to examine the evidence and analyze whether the intervention of the High Court in the order of the trial court was justified.

14. At first it is appropriate to have a glance at the statements of certain witnesses.

15. Siddappa Doddamani, P.W.1, stated that when he was near the temple on the date of the said incident, he saw the accused persons being armed with rods and clubs proceeded towards the victims’ house. Hence, he followed them out of curiosity, and saw the accused abusing the victims. During the said quarrel, the accused no.1 assaulted Sanjeevareddy on his shoulders & left leg with a club and accused no.7 (Ramappa) assaulted him with a club by giving a blow on his body.

The accused no-2 (Dharmareddy) and accused no.8 (Venkareddy) assaulted P.W.2 (Hemareddy) with an iron rod on his left shoulder and left hand. It was further stated that other accused persons also assaulted the victims. Thereafter he along with P.W.14 (Vardhamangouda), P.W.15 (Sunil), P.W.16 (Yallappa), P.W.4. (Shivareddy), P.W.13- (Manjureddy) & P.W.6 (Devareddy) intervened to rescue the victims. It is pertinent to note that, P.W.1 during his cross examination contradicted the above statements made in his examination-in-chief.

16. The victim P.W.2 (Hemareddy) stated that on 29.08.2008, the accused no.2 (Dharmareddy) abused him and threatened to kill him in the evening at around 5 pm near Hanuman Temple, but this was pacified by the intervention of P.W.4 (Shivareddy) and P.W.16 (Yellapa). But again at 9.30 p.m the said accused persons apprehended the victims near the house of P.W.14 (Vardhamangouda) and started abusing the victims in relation to the pending dispute between the parties.

Thereafter, the accused no.9 (Mallareddy) assaulted the complainant-P.W.5 (Sanjeevareddy) but not P.W.2 (Hemareddy). Accused no.1 (Bannareddy) also assaulted Sanjeevareddy on the left palm. Accused no.7 (Ramappa) assaulted Sanjeevareddy with a club on his head and other parts of the body. Accused no.3 (Hanamareddy) assaulted Lingareddy on his hands and head with an iron rod. The other accused persons were dragging the victims towards the other accused persons who were armed with clubs, who thereafter assaulted him on his head and body.

Accused no.1 (Bannareddy) assaulted Sanjeevareddy on his left hand and head with iron rod. P.W.11 (Maktumsab), P.W.16 (Yellapa Halawar), P.W.14 (Vardhamangouda), P.W.1 (Siddapa) along with others came to their rescue. He further stated that, as the victims had sustained injuries, his brother Venkatareddy shifted them to Navalgund General Hospital for treatment, thereafter they were transferred to the KIMS Hospital, after being discharged from there, they were admitted in Shushruta Hospital.

17. The trial court has rightly pointed out the contradictions in the statements given by P.W.1 and P.W.2 regarding the incident of assault and the participation of the accused persons. These contradictions are material ones and cannot be overlooked.

18. Similarly, after the perusal of the statements of P.W.3 and P.W.5 we note that, there exist contradictions with regard to the incident and the role played by the different accused persons. The trial court has correctly arrived at a conclusion on this aspect. Further, it is to be noted that, although the above witnesses have stated that there were several eye witnesses to the above incident who intervened to stop the assault, except P.W.1 (Siddappa) and P.W.13 (Manjureddy), other witnesses have turned hostile. Apart from the other victims, P.W.1 (Siddappa) remains the sole witness to the said incident, but it is to be noted that the statements given by all of them are not in conformity with each other, rather differ on material points regarding the commission of the act itself. In the light of this, it is not appropriate to place reliance on these statements.

19. Another major contradiction in the prosecution’s version, as rightly noted by the trial court, is the statement of P.W.14 (Vardhamangouda), who according to the eye witnesses had intervened in the said fight, as it was happening in the vicinity of his house. But, in clear contravention to the above version, P.W.14 states that he was out of station on the said date and on returning back to the village at night around 11.00 pm he came to know about the said incident.

20. Although motive becomes irrelevant in the presence of direct evidences, however, the prosecution has submitted that the accused and victims were from different political parties, and political rivalry may be the motive behind the assault. Although the victims were followers of P.W.14- (Vardhamangouda), who was the chairman of the panchayat at the time of incident, but surprisingly he has not supported the case of the prosecution. Further it is to be noted that, there existed prior enmity between the accused- appellants and the complainant victims regarding boundary of their land. The dispute has been continuing for the past 10-15 years which could not be resolved even with the intervention of the other villagers.

21. It is to be noted that certain actions of the victims were inexplicable drawing our suspicion specifically the behavior of the victim after the incident. It is an admitted fact that after the said incident the victims were taken to the Government Hospital, Navalgund. As P.W.5 (Sanjeevareddy) sustained simple injuries on his right shoulders thereby he was not referred for any further treatment. P.W.2 and P.W.3 having sustained injuries in their head were referred to the KIMS Hospital, Hubli for further treatment. But the trial court noted that no documents or certificate regarding the admission or treatment of the victims to this effect were placed on record.

The trial court rightly pointed out that P.W.19 (Dr. Mithun Sattur) who treated the victims both in the well reputed KIMS Hospital and later in Shushruta Hospital, admitted that KIMS Hospital is well equipped to treat the victims, then it is unclear why were the victims asked to shift to Shushruta Hospital. No documents were produced to clarify the same. The medical evidences produced by the victims prove that, they had not sustained any fatal injuries. In such circumstances, it is quite suspicious as to why were the victims shifted from KIMS Hospital to Shushruta Multi Speciality Hospital, particularly, P.W.5 (Sanjeevareddy), in spite of not being referred by any medical officer got himself admitted to KIMS Hospital and later to Shushruta Multi Speciality Hospital. The trial court thereby noted that the victims were trying to generate incriminating evidences against the accused appellants.

22. Coming further to address the guilt of the accused under Section 149, the prosecution has failed to establish the involvement of all the accused persons. Although the overt acts of certain accused such as accused no.1 (Bannareddy), accused no. 2. (Dharmareddy) have been mentioned in the statements of the victims and other witnesses. But no mens rea or actus reus could be attributed towards the rest of the accused persons to establish their guilt under Section 149 of the IPC.

23. The trial court has correctly observed that, the statements made by the mazhar witness regarding recovery of material cannot be relied on, as they have turned hostile. Even the recovery of the blood stained mud seems conspicuous considering the fact that, the given date of incident was admitted to be drizzly and thousands of devotees had come to witness the fair. In such circumstances, it is very unlikely that, the blood samples could have been collected the next day.

24. The High Court has relied upon the statement of P.W.3, wherein he stated that, rest of the accused were dragging the injured to assist the other accused persons with weapons to assault them. This allegation is very wide and made in vague manner, the same is not supported by any other evidence. It will not be appropriate to rely upon the evidence of victims solely to prove the culpability of the accused persons. Therefore the trial court has correctly held that, when any overt act could not be associated with these accused, provisions of Section 149 IPC will not be attracted.

25. The High Court has failed to take note of the fact that the panchas to the seizure pachanama have turned hostile. Although the investigating officer seized weapons which were identified by the victims and certain eyewitnesses, however, it is pertinent to note the all the witnesses have turned hostile except P.W.1 and P.W.13. Although P.W.1 (Siddappa) in his cross-examination stated that he could recognize the weapons in M.O.No.1 and No.2 as he has seen them, but contradicted his own statement by stating that he could not say any special features of the weapons used in the offence. Further P.W.13 also recognized the weapons as the same used in the assault.

But it must be noted that, P.W.13 seems to be an interested witness considering his relationship with P.W.3. In such circumstances, wherein the panch witnesses have turned hostile, it is not safe to rely upon the recovery of these weapons to substantiate the guilt of the accused persons. Further we are suspicious about the collection of blood samples, especially when it is an admitted fact that the incident took place on a mud road when it kept drizzling throughout and additionally thousands of devotees were present in the village attending the fair. In the light of such circumstances, the collection of blood samples seems unlikely.

26. In the present case, when the facts as to the incident and the role of the accused could not be proved beyond reasonable doubt, whether the motive behind the same is dispute regarding boundary wall or political rivalry becomes irrelevant.

27. Keeping in view the facts and circumstances of the case, we hold that the prosecution was not able to establish the guilt of the accused persons beyond reasonable doubt. Further, the High Court should not have re-appreciated evidences in its entirety, especially when there existed no grave infirmity in the findings of the trial court. There exists no justification behind setting aside the order of acquittal passed by the trial court, especially when the prosecution case suffers from several contradictions and infirmities.

No specific assertion could be proved regarding the role and involvement of the accused persons. Further, certain actions of the victim-respondents themselves are dubious, for instance admitting themselves later in a Multi-speciality hospital without proper cause. It has further come to our notice that respondents have already compromised and have executed a compromise deed to that extent, though the same is not the basis for our conclusion.

28. Therefore, we set aside the conviction order passed by the High Court and reaffirm the order of acquittal passed by the trial court. The appellants are to be released from custody forthwith.

29. The appeal is allowed accordingly. Pending applications, if any, shall also stand disposed of.

J. (N.V. RAMANA)

J. (S. ABDUL NAZEER)

New Delhi,

March 12, 2018

Sudhakar @ Sudharasan Vs. State represented by The Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu[ALL SC 2018 MARCH]

KEYWORDS:-MURDER-ACQUITTAL

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DATE:- March 12, 2018.

It is settled law that there cannot be any hard and fast rule that the evidence of interested witness cannot be taken into consideration and they cannot be termed as witnesses. But, the only burden that would be cast upon the Courts in those cases is that the Courts have to be cautious while evaluating the evidence to exclude the possibility of false implication. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness.

ACQUITTAL: -Insufficiency of evidence and lack of credibility on the trustworthiness of PWs 1 & 5

ACTS:-Section 302 IPC.

SUPREME COURT OF INDIA

Sudhakar @ Sudharasan Vs. State represented by The Inspector of Police, Srirangam Police Station, Trichy, Tamil Nadu

[Criminal Appeal No. 381 of 2018 arising out of Special Leave Petition (CRL) No. 9297 of 2016]

N.V. RAMANA, J.

1. Leave granted.

2. This appeal has been preferred against the judgment dated 23rd January, 2015 passed by the Madras High Court, Bench at Madurai in Criminal Appeal (MD) No. 298 of 2013 whereby the High Court concurred with the judgment of the trial court and dismissed the appeal preferred by the appellant-accused against his conviction under Section 302 IPC.

3. Facts of the case in brief, as advanced by the prosecution, are that the appellant herein is a habitual drunkard and used to live opposite to his grandmother’s house and always indulged in quarreling with her demanding money. The incident has taken place on 17th January, 2013 at about 6.30 p.m. The appellant was found strangulating the neck of his grandmother, namely, Mariyayee (deceased) with his hands. One Jayaraj-PW1 (son-in-law of the deceased), who was sleeping in the adjoining room, upon hearing the screams of the deceased, rushed to her and witnessed the crime being committed by the accused on his grandmother. The appellant then took surukupai (money bag) from the possession of the deceased and fled away from the spot.

4. Jayaraj-(PW 1) then hired an auto and took his mother-in-law to ABC hospital while informing about the incident to his wife Maruthayee (PW5) over phone, PW5 in turn also reached the hospital. The patient was admitted in the hospital at 7.30 p.m. and Dr. Mohammed Ghouse Khan (PW8) examined her and found that she was conscious but restless. However, Mariyayee had passed away at 7.55 p.m. Jayaraj (PW 1) lodged complaint at Srirangam Police Station at about 11.30 p.m. and basing on the same, Crime No. 22 of 2013 was registered against the appellant. PW15-Inspector of Police (Balusamy) sent the FIR (Ext.P12) to Court and inspected the place of occurrence. Subsequently, other formalities such as preparation of observation mahazar (Ext. P2), drawing of rough sketch (Ext. P13), holding of inquest were carried on and the body of the deceased was sent for postmortem. Meanwhile, the accused-appellant was taken into custody and after recording his confessional statement, police recovered surukupai (money bag) from his possession (M.O. 1).

5. Postmortem on the dead body of deceased Mariyayee was conducted by Dr. RVS Renuga Devi (PW 9) who found linear abrasions of varying lengths and contusion on the front of neck, fracture of thyroid cartilage and tracheal rings, bruising of anterior chest wall, fracture of left collar bone and manubrium stemi transversely at the level of 4th rib attachment with surrounding area bruising. Doctor expressed her opinion that the deceased appears to have died of compression of neck and chest wound.

6. The appellant-accused denied the charge of committing the offence and claimed to be tried. In order to bring home the guilt of the accused, prosecution has examined as many as 15 witnesses and marked 16 exhibits. While so, the accused in his defence examined his mother-in-law, Mala as DW1 and marked no documents. There were however two material objects, one is the surukupai (money bag) and the other is an amount of Rs.140/-, both have allegedly been recovered from the possession of the accused.

7. The trial court relying upon the evidences of prosecution witnesses, particularly PWs 1 and 5, came to the conclusion that often the accused used to quarrel with the deceased for fulfilling his demands of money and had the motive to commit the offence. In pursuance thereof, the accused came to the house of the deceased and strangulated her neck and then pushed her down, hence the deceased suffered asphyxia and injuries on her chest wall and ribs. It further held that medical evidence on record clearly establishes that the deceased had died due to compression of neck and chest wounds.

Therefore, the trial Court held that the trivial contradictions in the evidence of the witnesses will not affect the prosecution case and the appellant-accused was guilty of the offence of murder. The trial Court accordingly convicted the accused under Section 302, IPC and sentenced him to undergo life imprisonment and to pay a fine of Rs.1,000/-, in default, to further suffer rigorous imprisonment for a period of six months.

8. The aggrieved appellant approached the High Court in appeal which came to be dismissed with the observation that the conviction and sentence imposed by the learned trial judge is in consonance with the penal provisions and does not suffer from any infirmity. Hence, the accused is before us by way of this appeal.

9. We have heard learned counsel for the parties and perused the material on record.

10. Learned counsel appearing for the accused-appellant emphatically contended that the courts below have erred in convicting the appellant even though prosecution case was full of material irregularities and inconsistent depositions by the witnesses. The counsel pointed out that the Courts below committed manifest error while disbelieving the defence of alibi of the appellant that at the relevant time, the accused was not there at his grandmother’s house but he was in his mother-in-law’s house and police took him for enquiry from there on 17.1.2013 at 11 pm. The counsel submitted that the prosecution has not successfully established the motive part also.

But the Courts below laid basis on exaggerated versions of prosecution witnesses and convicted the appellant. All the prosecution witnesses, particularly PW 1 and PW 5, are interested witnesses as they had developed grudge on the family of the appellant in connection with sharing of properties and they want to get rid of him as they intend to grab the property of appellant. With that view in mind, PWs 1 and 5 implicated the accused in the offence which would disentitle him to inherit the joint family property.

11. It was further argued that there was no independent witness to the alleged crime and there was no satisfactory explanation for the delay in lodging complaint under Ext. P.1 and the delay in FIR reaching to the Judicial Magistrate. PWs 2, 3, 4 7 who were said to be the eyewitnesses, did not support the case of prosecution. It is also contended by the learned counsel that it was evidently represented by PW5-daughter of the deceased at the hospital that her mother (deceased) had fallen down in the house and therefore she was suffering from breathlessness, the said statement is duly authenticated with the Accident Register (Ext. P3) where it is mentioned as ‘history of fall’.

But later on before Court, PW5 denied of having said so and improved her statement thereby implicating the appellant in the crime. More stress has been laid on the aspect that as per postmortem report, on the body of the deceased, there were fractures over the rib and left collar bone as well as over manuburium sterni, which does not support the case of strangulation but supports the case of fall as stated by PW5 to the Doctor. Concluding his arguments, learned counsel submitted that despite all the discrepancies in the prosecution case, the Courts below went ahead and convicted the appellant and the judgment deserves to be set aside by this Court.

12. While advancing his arguments, learned counsel appearing for the State submitted that no case is made out by the appellant seeking interference of this Court while both the Courts below concurrently found him guilty. According to him, the accused, being a habitual drunkard, often used to quarrel with his grandmother (deceased) for money and for transfer of property. On the day of incident also, the accused picked up a quarrel with the deceased at about 11 am and PW1 sent him away peacefully. But in the evening, while PW1 was asleep in the house, the accused again entered and committed the offence.

The trial Court and High Court had rightly relied upon the consistent and categorical evidence of PW1, who happened to be the eyewitness to the incident, coupled with the corroboration of medical evidence, and by way of a reasoned order, convicted the accused. The recovery of surukupai (money bag) from the possession of the accused substantiates the commission of crime and the case of the prosecution. Though the accused tried to put forward the defence of alibi through DW1, the defence could not succeed in its effort and they did not put a single query or suggestion to the Investigating Officer in their endeavor to ascertain that the accused was picked up by the police from the house of DW1 and to falsify the prosecution case that the accused was arrested from the bus stand.

13. On a careful consideration of the matter in the light of submissions made on either side and after perusing the material available on record, the issue that falls for consideration is “whether both the Courts below were right in convicting the accused for the offence punishable under Section 302, IPC.”

14. The whole basis for the Courts below to convict the accused appears to be the version of the prosecution that the accused was arrested on 18.1. 2013 at about 11 a.m. at bus stand, in presence of PWs 11 and 12, and brushed aside the plea of alibi presented by the accused with due support by the evidence of DW1. It is worthwhile to note that both of these witnesses (PWs 11 & 12) in their examination-in-chief denied the prosecution story about their presence at the time of arrest and seizure of material objects from the possession of the accused and they turned hostile. This fact casts serious doubts on the veracity of prosecution story about the arrest of the accused.

15. Admittedly, at the time of alleged incidence, PW 5 (wife of PW1) and PW 6 (son of PWs 1 & 5) were not present near the alleged scene of offence. As regards the evidences of independent witnesses (PWs 2, 3 and 4), who were residents of the same street as that of the deceased and who were examined as ocular witnesses, PW 2 (tenant of PW 5) turned hostile and did not support the prosecution case. He deposed that on 17.1.2013 at 7 pm when he found some crowd in front of the house of deceased he rushed there and found the deceased in unconscious condition.

Then, he along with PWs 3 and 4 took the deceased to Srirangam Government Hospital and informed the same to PWs 1 & 5, they asked them to bring the deceased to ABC Hospital where PWs 1 & 5 joined them later on. In his cross examination, he stated that PW 1 was not present in Srirangam on the date of incident. PWs 3 and 4 also turned hostile and similar statements were made by them also. Another shortfall in the prosecution case is that PW1 deposed that he gave oral complaint to police, but a contrary statement was put forth by PW15-I.O. stating that he got a written complaint from PW1.

16. From the above stated facts, it emerges that the entire prosecution case rests on the evidences of PWs 1 and 5 who are closely related to the accused–appellant. The accused is none other than the son of PW 5’s brother and PW 1 is the husband of PW5 and PW6 is the son of PWs 1 & 5. Clearly, the relations between the accused-appellant and PWs 1 & 5 were strained over property issues and they were in inimical terms. Apparently, there was also a civil suit pending between them for partition of properties.

17. It would be appropriate to have a look at the legal position with regard to the evidence of related and interested witnesses. In Sarwan Singh v. State of Punjab, (1976 (4) SCC 369), para 10, this Court observed thus: “….. The evidence of an interested witness does not suffer from any infirmity as such, but the Courts require as a rule of prudence, not as a rule of law, that the evidence of such witnesses should be scrutinised with a little care. Once that approach is made and the Court is satisfied that the evidence of interested witnesses have a ring of truth such evidence could be relied upon even without corroboration.”

It is settled law that there cannot be any hard and fast rule that the evidence of interested witness cannot be taken into consideration and they cannot be termed as witnesses. But, the only burden that would be cast upon the Courts in those cases is that the Courts have to be cautious while evaluating the evidence to exclude the possibility of false implication. Relationship can never be a factor to affect the credibility of the witness as it is always not possible to get an independent witness.

18. Then, next comes the question ‘what is the difference between a related witness and an interested witness?’. The plea of “interested witness”, “related witness” has been succinctly explained by this Court that “related” is not equivalent to “interested”. The witness may be called “interested” only when he or she derives some benefit from the result of a litigation in the decree in a civil case, or in seeing an accused person punished. In this case at hand PW 1 and 5 were not only related witness, but also ‘interested witness’ as they had pecuniary interest in getting the accused petitioner punished. [refer State of U.P. v. Kishanpal and Ors., (2008) 16 SCC 73]. As the prosecution has relied upon the evidence of interested witnesses, it would be prudent in the facts and circumstances of this case to be cautious while analyzing such evidence. It may be noted that other than these witnesses, there are no independent witnesses available to support the case of the prosecution.

19. Now, it would be appropriate to consider whether the Courts below exercised the judicial discretion in evaluating the evidence of PW1 and PW5 while convicting the accused. It may be noted that there is nothing on record to support the version of PWs 1 & 5 that on earlier occasions also and particularly on the date of incident, the accused quarreled with his grandmother demanding money and to settle the house in his favor.

Further, it is on record that when the deceased was brought to the hospital, in the Accident Register, it was written as ‘history of fall’. According to the prosecution’s case, blood came out from the mouth and nose of the deceased, but there appears no seizure of bloodstained clothes of the deceased and chemical analysis. Thus, the inconsistent evidence by the alleged eyewitnesses as well as investigation agency would cause dent to the edifice on which the prosecution case is 14 built, and it adversely affects the substratum of the prosecution case.

20. We further find, to a certain extent, material infirmities, irregularities and contradictions in the prosecution case as also in the evidence of prosecution witnesses including the deposition of PWs 1 & 5, who are material witnesses. PW 1 in his cross examination categorically stated that his wife (PW 5) has filed a suit for partition against the accused and his family members whereas PW 5 in her cross examination denied the same. Likewise, there are contradictory statements of witnesses, primarily to the aspect of happening of incident, taking the victim to the hospital, the presence of PW1 at the time of alleged incident, detaining the accused from bus stand or from his mother-in-law’s house, recovery of material objects from the possession of accused and lodging of complaint by PW1 etc, and the whole story appears to be an utterly incredible one.

More so, there was no explanation forthcoming from the prosecution side on the questions raised by the defense that soon after reaching the ABC hospital with victim, how can the PWs 1 & 5 directly approach Dr. Mohammed Ghouse Khan (PW8) 15 without going to Emergency Ward and why the Doctors at ABC hospital did not inform police when it was a medico legal case. Both the Courts below have simply noted that the variations and contradictory statements are not material in proving the guilt of the accused. We feel that the reasoning given by the Courts below is ex facie illegal.

21. This Court in Latesh V. State of Maharastra [Criminal Appeal No. 1301 of 2015, decided on January 30, 2018] has explained that the reasonable doubt in a lucid manner as a mean between excessive caution and excessive indifference to a doubt. Moreover, it has been explained that reasonable doubt should be a practical one and not an illusory hypothesis.

22. In view of the above discussion, we are of the view that there exists reasonable doubt in this case as the case of prosecution is un-supported by independent witnesses, ridden with contradictions, good motive for false prosecution and filled with suspicious circumstances. Further we are of the considered opinion that there is not only insufficiency of evidence but also lack of credibility on the trustworthiness of PWs 1 & 5 which culminated into disproving the prosecution case and alleged guilt of the accused.

The prosecution has, therefore, failed to establish the guilt of the accused-appellant beyond reasonable doubt by adducing cogent evidence. We are satisfied that the Courts below completely misdirected themselves and the conviction imposed upon the accused by the trial Court and confirmed by the High Court suffers from patent error of law and perversity of approach and deserves to be set aside.

23. Resultantly, the appeal is allowed and the impugned judgment passed by the High Court is set aside. The appellant is stated to be in jail. He shall be set free forthwith unless required in any other case. Pending applications, if any, shall also stand disposed of.

J. (N.V. RAMANA)

J. (S. ABDUL NAZEER)

New Delhi,

March 12, 2018.

While dealing with a judgment of Acquittal, an appellate court must consider the entire evidence on record

Indian Law Encyclopedia

Supreme Court in Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra, JT 2010 (12) SC 287, considered various aspects of dealing with a case of Acquittal and after placing reliance upon earlier judgments of this Court particularly in Balak Ram and Anr. v. State of U.P., AIR 1974 SC 2165; Budh Singh and Ors. v. State of U.P., AIR 2006 SC 2500; S. Rama Krishna v. S. Rami Reddy (D) by his L.Rs. and Ors.,, AIR 2008 SC 2066; Arulvelu and Anr. v. State, (2009) 10 SCC 206; and Babu v. State of Kerala (2010) 9 SCC 189, held that:

22. It is a well-established principle of law, consistently re-iterated and followed by this Court is that while dealing with a judgment of Acquittal, an appellate court must 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. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial Court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of Acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanor of the witnesses is the best judge of the credibility of the witnesses.

23. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration.

The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court’s Acquittal bolsters the presumption of his innocence. Interference with the decision of the Trial Court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.

24. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of Acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is `against the weight of evidence’, or if the finding so outrageously defies logic as to suffer from the vice of irrationality.

Thus, unless there are substantial and compelling circumstances, the order of Acquittal is not required to be reversed in appeal.

 So far as the issue of setting aside the conviction under Section 120B IPC against both the Respondents and not framing the charge under any other penal provision is concerned – it has to be considered, as to whether conviction under any other provision for which the charge has not been framed, is sustainable in law. The issue is no longer res integra and has been considered by the Court from time to time. The accused must be aware as to what is the case against them and what defence they could lead. Unless the parties satisfy the Court that there has been a failure of justice from non framing of charge under a particular penal provision, and some prejudice has been caused to them, conviction under such provision of law is sustainable. (Vide: Amar Singh v. State of Haryana,, AIR 1973 SC 2221)

supreme  Court in Sanichar Sahni v. State of Bihar,, AIR 2010 SC 3786, while considering the issue placed reliance upon various judgments of this Court particularly in Topandas v. State of Bombay,, AIR 1956 SC 33; Willie (William) Slaney v. State of M.P., AIR 1956 SC 116; Fakhruddin v. State of Madhya Pradesh AIR 1967 SC 1326; State of A.P. v. Thakkidiram Reddy, AIR 1998 SC 2702; Ramji Singh v. State of Bihar,, AIR 2001 SC 3853; and Gurpreet Singh v. State of Punjab, AIR 2006 SC 191, and came to the following conclusion:

Therefore,…. unless the convict is able to establish that defect in framing the charges has caused real prejudice to him and that he was not informed as to what was the real case against him and that he could not defend himself properly, no interference is required on mere technicalities.

Conviction order in fact is to be tested on the touchstone of prejudice theory.

 

Appellate court`s interference with the order of Acquittal

Indian Law Encyclopedia

It is a settled legal proposition that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse i.e. the conclusions of the courts below are contrary to the evidence on record or its entire approach in dealing with the evidence is patently illegal, leading to miscarriage of justice or its judgment is unreasonable based on erroneous law and facts on the record of the case, the appellate court should interfere with the order of Acquittal. While doing so, the appellate court should bear in mind the presumption of innocence of the accused and further that the Acquittal by the courts below bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

(See: Babu v. State of Kerala (2010) 9 SCC 189; Dr. Sunil Kumar Sambhudayal Gupta and Ors. v. State of Maharashtra, (2010) 13 SCC 657; Brahm Swaroop and Anr. v. State of U.P., AIR 2011 SC 280; S. Ganesan v. Rama Raghuraman and Ors., (2011) 2 SCC 83; V.S. Achuthanandan v. R. Balakrishna Pillai and Ors., (2011) 3 SCC 317; State of M.P. v. Ramesh and Anr., (2011) 4 SCC 786; Abrar v. State of U.P., (2011) 2 SCC 750; and Rukia Begum and Ors. v. State of Karnataka, (2011) 4 SCC 779)

 

Guidelines for the High Court to interfere with the judgment and order of Acquittal passed by the Trial Court

Indian Law Encyclopedia

 Supreme Court  has laid down the guidelines for the High Court to interfere with the judgment and order of Acquittal passed by the Trial Court. The appellate court should not ordinarily set aside a judgment of Acquittal in a case where two views are possible, though the view of the Appellate Court may be more probable one. While dealing with a judgment of Acquittal, 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. Interference with the order of Acquittal is permissible only in “exceptional circumstances” for “compelling reasons”. 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.

The expressions like ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc., are not intended to curtail the 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 the Acquittal. Thus, where it is possible to take only one view i.e. the prosecution evidence points to the guilt of the accused and the judgment is on the face of it perverse, the appellate Court may interfere with an order of Acquittal.

The appellate court should also bear in mind the presumption of innocence of the accused and further that the trial Court’s Acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference.

(See: Sanwat Singh and Ors. v. State of Rajasthan, AIR 1961 SC 715; Suman Sood alias Kamaljeet Kaur v. State of Rajasthan, (2007) 5 SCC 634; Brahm Swaroop and Anr. v. State of U.P., AIR 2011 SC 280; V.S. Achuthanandan v. R. Balakrishna Pillai and Ors., (2011) 3 SCC 317; and Rukia Begum and Ors. v. State of Karnataka, (2011) 4 SCC 779).

Thus, in such cases, this Court would usually not interfere unless

a. The finding is vitiated by some glaring infirmity in the appraisal of evidence. (State of U.P. v. Sahai, AIR 1981 SC 1442 at paras 19-21)

b. The finding is perverse. (State of M.P. v. Bachhudas, (2007) 9 SCC 135 at para 10 and State of Punjab v. Parveen Kumar, (2005) 9 SCC 769 at para 9)

c. The order suffers from substantial errors of law and fact (Rajesh Kumar v. Dharamvir, (1997) 4 SCC 496 at para 5)

d. The order is based on misconception of law or erroneous appreciation of evidence (State of U.P. v. Abdul, (1997) 10 SCC 135; State of U.P. v. Premi, (2003) 9 SCC 12 at para 15)

e. High Court has adopted an erroneous approach resulting in miscarriage of justice (State of T.N. v. Suresh, (1998) 2 SCC 372 at paras 31 and 32; State of M.P. v. Paltan Mallah, (2005) 3 SCC 169 at para 8)

f. Acquittal is based on irrelevant grounds (Arunachalam v. Sadhanatham, (1979) 2 SCC 297 at para 4

g. High Court has completely misdirected itself in reversing the order of conviction by the Trial Court (Gaurishanker Sharma v. State of U.P., AIR 1990 SC 709)

h. The judgment is tainted with serious legal infirmities (State of Maharashtra v. Pimple, AIR 1984 SC 63 at para 75)

18. In reversing an Acquittal, this Court keeps in mind that presumption of innocence in favour of the accused is fortified by an order of Acquittal and if the view of the High Court is reasonable and founded on materials on record, this Court should not interfere.

19. However, if this Court is of the opinion that the Acquittal is not based on a reasonable view, then it may review the entire material and there will be no limitation on this Court’s jurisdiction under Article 136 to come to a just decision quashing the Acquittal (See, (1985) 4 SCC 476 at para 45; (1996) 7 SCC 471 at para 4)

 

 

Union of India Vs. Leen Martin & ANR.[SC 2018 February]

KEYWORDS:- NDPS-statement of official witness-ACQUITTAL –

c

DATE :- February 01, 2018

When the statement of official witness is impaired due to infirmities, it is not safe to place reliance upon the same and pass conviction order against the accused.

ACTS:-  Under sections 8(c), punishable under Section 20(b)(ii) (c) and under Section 28 read with Section 23 of The Narcotic Drugs and Psychotropic Substances Act, 1985

SUPREME COURT OF INDIA

Union of India Vs. Leen Martin & ANR.

[Criminal Appeal No(S). 2150/2011]

N. V. Ramana, J.

1. This criminal appeal arises from the impugned judgment, and order, dated 20.11.2008, in Criminal Appeal No. 379/2007 passed by the High Court of Judicature at Bombay, wherein the High Court acquitted the respondent no.1 of all the charges under sections 8(c), punishable under Section 20(b)(ii) (c) and under Section 28 read with Section 23 of The Narcotic Drugs and Psychotropic Substances Act, 1985 (hereinafter referred to as ‘N.D.P.S Act’).

2. A brief reference to the prosecution case may be necessary for disposal of this case. On 05.05.2004, the officers of Customs, Air Intelligence Unit, at Chhatrapati Shivaji International Airport, Mumbai noticed that a passenger of European origin was found to be suspiciously loitering near the airline counters of Swiss Air. Observing such suspicious behavior, the airline personnel were alerted for segregating the baggage of the respondent no.1. After completing his immigration and custom formalities, respondent no.1 was intercepted by the Intelligence Officer and subjected to examination by a sniffer dog.

3. When there was an indication about the presence of narcotic or psychotropic substance, he was taken to a baggage examination area. On opening suit case his personal belongings were kept aside, even then, his suit case was found to be abnormally heavy.

On examination, a false bottom was detected and when the false bottom was removed, three rectangular packets wrapped in cellophane tape were discovered containing brown colored substance which tested positive for hashish, a contraband substance. Net weight of the recovered substance was found to be measuring 12.03 Kg. Later, the samples were drawn and the goods were seized under a seizure panchnama. It is to be noted that, on 06.05.2004, respondent no.1 recorded his statement under Section 67 of N.D.P.S Act. After completion of the investigation, charges levelled against him, the accused (respondent no. 1 herein) pleaded not guilty and claimed trial.

4. The trial court in N.D.P.S. Special Case No. 133 of 2004 conducted full-fledged trial which resulted in conviction of the respondent no.1, for offences under Section 8(c), punishable under Section 20(b)(ii)(c), with rigorous imprisonment for 10 years and fine of Rs. 1,00,000/- in default to suffer simple imprisonment for six months. Further, the respondent no. 1 was sentenced under Section 28 read with Section 23 of N.D.P.S Act to undergo rigorous imprisonment for 10 years and to pay fine of Rs. 1,00,000/- and in default to suffer simple imprisonment for six months. Both sentences were ordered to run concurrently.

5. Aggrieved by the order of conviction of the trial court, respondent no. 1 approached the High Court in Criminal Appeal No. 379 of 2007. The High Court by an order dated 20.11.2008, acquitted the respondent no. 1 of all charges as, in the opinion of the High Court, the prosecution failed in establishing that the panchas were present during the seizure procedure. The High Court while setting aside the trial court order observed that the trial court erred in convicting the respondent while relying on the sole evidence of PW-1 which is highly inconsistent and full of contradictions.

6. Aggrieved by the acquittal of respondent no. 1, Union of India has preferred the present appeal before this court by way of special leave petition.

7. We have heard the learned counsel appearing for the appellant – Union of India and the learned senior counsel appearing for respondent no.1.

8. It is brought to our notice by the learned senior counsel appearing for respondent no.1 that his client has already undergone four and a half years of incarceration and he is also not in the country.

9. Learned counsel appearing for the appellant – Union of India accepts the aforesaid statement.

10. Taking into consideration the evidence of PWs 8 and 9, panch witnesses, we find that their evidences are contradicting the statement of the Intelligence Officer (PW-1). We may note that except the statement made under Section 67 of the N.D.P.S. Act by respondent no.1, there is no other material to substantiate the case against the said respondent. Both PW-8 and PW-9 have categorically stated that, when they were called by the Intelligence Officer (PW-1) and by the time they reached, the bag was already opened. Further it was admitted by them that, the panchanama was not read over to them.

They were asked to sign on number of papers and they were not aware of the contents. Moreover, PW-1 i.e., the intelligence officer did not state that the bag containing the narcotic substance was opened in the presence of panchas. The cross-examination of PW-9 clearly reveals that he does not agree to the contents of the panchanama with respect to the fact that the search and inspection of the baggage took place in his presence.

His signatures obtained on the panchanama were not voluntarily put, which is apparent from the following statements made by PW-9 during the cross-examination: “As I was Trainee and new person I did not want to hurt the custom officer, therefore I signed panchanama and articles without reading it.” Moreover, aforesaid conclusion is substantiated by the statement of PW-8 made in the examination-in-chief in the following manner- “After entering the office room of AIU Section, I saw one open suitcase, number of officers were present and packets were shown to me… I signed on numbers of papers and on packets being shown to me.”

11. It is to be noted that the entire case of the prosecution hinges on the alleged recovery of the narcotic substance from respondent no. 1 but, this very fact is not proved beyond reasonable doubt as independent witnesses PW-8 and PW-9 have portrayed a different story as to the recovery and seizure. In the facts and circumstances of this case exclusive reliance on the statement made by respondent no. 1 would neither be prudent nor safe; especially considering the fact that, the statement of respondent no. 1 procured under Section 67 of the NDPS Act was retracted on 29.06.2004.

12. After analysis of the above circumstances and evidences; prudence dictates that the statement of the official witness PW-1 cannot be the sole basis for convicting the respondent no. 1. It may be noted that when the statement of official witness is impaired due to infirmities, it is not safe to place reliance upon the same and pass conviction order against the accused. In the present case, as already stated above, the statements of the independent panch witnesses depict a different picture than the one portrayed by the official witness PW-1.

13. We are of the opinion that the High Court had rightly acquitted the respondent no.1 taking into consideration the aforesaid aspects.

14. In view of the above and having regard to the fact that the incident is of the year 2004, we find no reason to interfere with the impugned order passed by the High Court. In the result, the appeal lacks merit and is dismissed.

J. (N.V. RAMANA)

J. (S. ABDUL NAZEER)

New Delhi,

February 01, 2018.

State of Uttarakhand Vs. Jairnail Singh [SC 2017 NOV]

KEYWORD :

Capture

  • High Court while reversing the decision of the Session Court acquits the accused and assigns the reasons by appreciating the entire evidence  in support of the acquittal, then this Court would not be inclined to interfere in the order of acquittal. In our view, it is necessary for the High Court while hearing the appeal arising out of the order of conviction to appreciate the entire evidence and then come to its conclusion to affirm or reverse the order.
  • it is necessary for the High Court to assign cogent reasons as to why it does not consider it proper to agree with the reasoning of the Sessions Judge by pointing out material contradiction in evidence and infirmities in the prosecution case.

Act: Section 307 of the Indian Penal Code -Section 25(1-A) of the Arms Act

Date: November 13, 2017

Bench:   [R.K. AGRAWAL]  [ABHAY MANOHAR SAPRE]


SUPREME COURT OF INDIA

State of Uttarakhand Vs. Jairnail Singh

[Criminal Appeal No…………… of 2017 arising out of S.L.P. (CRL.) No. 1651 of 2015]

Abhay Manohar Sapre, J.

1. Leave granted.

2. This appeal is filed by the State against the final judgment and order dated 22.05.2014 passed by the High Court of Uttarakhand at Nainital in Criminal Appeal No.33 of 2005 whereby the High Court allowed the appeal filed by the respondent(accused) herein and set aside the order of conviction and sentence dated 01.03.2005 passed by the Trial Court in Session Trial Nos.319 & 320 of 2000 by which the respondent(accused) was convicted under Section 307 of the Indian Penal Code, 1860 (hereinafter referred to as “IPC”) and Section 25(1-A) of the Arms Act, 1959 and sentenced him to undergo rigorous imprisonment for ten years and a fine of Rs.5000/- under Section 307 of IPC, in default of payment of fine, to further undergo imprisonment for three months and to undergo rigorous imprisonment for five years and a fine of Rs.1000/- under Section 25(1-A) of the Arms Act, in default of payment of fine, to further undergo imprisonment for one month. Both the sentences were directed to run concurrently.

3. The prosecution case is that on 12.12.1999 at 17.45 hrs., the First Information Report (FIR) was lodged by Asgar Ali, son of Allah Diya, resident of Mohalla Naudhauna, Kasba and Police Station Sherkot, District Bijnore in Police Station Nanakmatta, Dist. Udham Singh Nagar, Uttarakhand. As per the contents of the FIR lodged by Asgar Ali-the Complainant, on 08.12.1999, he along with his brother Akbar Ali and 10-12 other persons were doing the trading of sale purchase of paddy of Village Devipura.

On 12.12.1999, at around 11.00 hrs., when Akbar Ali (injured victim) was weighing paddy of Jairnail Singh(accused) in his village at Devipura, at that time, Jairnail Singh came and made an allegation on  Akbar Ali that more paddy has been weighed while it had been shown less. Akbar Ali denied the allegation. Therefore, Jairnail Singh started abusing Akbar Ali and when Akbar Ali objected, the quarrel erupted and Jairnail Singh took out a bore country made pistol from his right pocket of his pant and fired on the temple of Akbar Ali, due to which Akbar Ali fell down at the spot.

Asgar Ali(complainant) and other companions of Akbar Ali tried to grab Jairnail Singh but he succeeded to escape from the spot with the pistol in south direction. The Complainant and his companions took the injured Akbar Ali to the Government Hospital, Nanamatta on his tractor trolley where no doctor was available. Therefore, they went to Government Hospital, Khatima where doctor referred the injured to the Government Hospital, Pilibhit where the injured was examined.

4. During the investigation, the Investigating Officer on 13.12.1999 at about 12.30 p.m. arrested Jairnail Singh from Nanak Sagar Dam and recovered the pistol, which was without license. After completion of the investigation, the Investigating Officer filed the charge-sheet under Section 307 IPC and Section 25 of 3 the Arms Act against Jairnail Singh (accused).

5. The Judicial Magistrate, Khatima, Dist. Udham Singh Nagar, committed the case for trial to the Session Court. After committal of the case to the Session Court, Udham Singh Nagar, Rudrapur, the Sessions Judge, framed charges against the accused-Jairnail Singh under Section 307 IPC and Section 25 of the Arms Act in Session Trial Case No.320 of 2000 for the offence punishable under Section 307 IPC and Session Trial Case No.319 of 2000 for the offence punishable under Section 25 of the Arms Act. The accused denied the charges.

6. The Trial Court conducted the trial in both the cases together. By judgment dated 01.03.2005, the Trial Court convicted the accused for the offences punishable under Section 307 of IPC and Section 25 of the Arms Act and sentenced him to undergo rigorous imprisonment for ten years for the charge under Section 307 IPC and a fine of Rs.5000/-, in default of payment of fine, to further undergo imprisonment for three months and also to undergo rigorous imprisonment for five years under Section 25(1-A) of the Arms Act and a fine of Rs.1000/-, 4 in default of payment of fine, to further undergo imprisonment for one month. Both the sentences were directed to run concurrently.

7. Aggrieved by the judgment of the Trial Court, the respondent(accused) filed an appeal being Criminal Appeal No.33 of 2005 before the High Court. The High Court, by impugned judgment, allowed the appeal and set aside the order of conviction and sentence of the respondent-accused passed by the Trial Court in Session Trial Nos.319 and 320 of 2000.

8. Felt aggrieved, the State has filed this appeal by way of special leave before this Court.

9. Heard Mr. Rajiv Nanda, learned counsel for the appellant (State) and Mr. Adarsh Upadhyay, learned counsel for the respondent (accused).

10. Learned counsel for the appellant (State) while assailing the legality and correctness of the impugned judgment contended that the High Court was not right in reversing the well reasoned judgment of the Session Court, which rightly held the respondent-accused guilty of commission of offences punishable under Section 307 IPC and Section 25(1-A) of the Arms Act and accordingly 5 had rightly convicted him for the said offences.

11. It was his submission that the three eye witnesses (PWs-1, 2 and 3), whose testimony was believed by the Sessions Judge for recording conviction of the respondent, should not have been reversed by the High Court in the appeal filed by the respondent-accused. According to learned counsel, such findings should have been affirmed by the High Court as the same was based on proper appreciation of the evidence of the three witnesses.

12. Learned counsel further submitted that the discrepancies, if any, which were made basis by the High Court for acquitting the respondent (accused) were technical in nature and did not materially affect the prosecution case. Such discrepancies, according to learned counsel, should have been ignored being wholly insignificant in the light of the law laid down in Dhanaj Singh @ Shera & Ors. vs. State of Punjab, (2004) 3 SCC 654.

13. Learned counsel then took us through the evidence of the prosecution witnesses and argued that their ocular evidence deserve acceptance for convicting the  respondent under Section 307 IPC and Section 25(1-A) of the Arms Act.

14. In reply, learned counsel for the respondent (accused) supported the impugned judgment and contended that no case for any interference in the impugned judgment is made out as the same is based on proper appreciation of evidence.

15. It was also his submission that the infirmities noticed by the High Court in prosecution case for reversing the judgment of the Session Court cannot be faulted with and being material in nature deserve to be upheld by this Court as was rightly done by the High Court.

16. Having heard the learned counsel for the parties and on perusal of the record of the case, we find no merit in the appeal.

17. In other words, in our view, the reasoning and the conclusion of the High Court in acquitting the respondent of the charges under Section 307 IPC and Section 25(1-A) appears to be just and proper as set out below and to which we concur and hence it does not call for any interference by this Court.


18. First, the parties involved in the case namely, the victim, his brother, who was one of the eye-witnesses with other two eye-witnesses and the accused were known to each other then why the Complainant-brother of victim in his application (Ex-P-A) made immediately after the incident to the Chief Medical Superintendent, Pilibhit did not mention the name of the accused and instead mentioned therein “some sardars”.

19. Second, according to the prosecution, the weapon used in commission of offence was recovered from the pocket of the accused the next day, it looked improbable as to why would the accused keep the pistol all along in his pocket after the incident for such a long time and roam all over.

20. Third, the weapon (pistol) alleged to have been used in the commission of the offence was not sent for forensic examination with a view to find out as to whether it was capable of being used to open fire and, if so, whether the bullet/palate used could be fired from such gun. Similarly, other seized articles such as blood-stained shirt and soil were also not sent for forensic examination.

21. Fourth, weapon (Pistol) was not produced before the  concerned Magistrate, as was admitted by the Investigating Officer.

22. Lastly, if, according to the prosecution case, the shot was hit from a very short distance as the accused and the victim were standing very near to each other, then as per the medical evidence of the Doctor (PW-6) a particular type of mark where the bullet was hit should have been there but no such mark was noticed on the body. No explanation was given for this. This also raised some doubt in the prosecution case.


23. In our considered opinion, the aforesaid infirmities were, therefore, rightly noticed and relied on by the High Court for reversing the judgment of the Session Court after appreciating the evidence, which the High Court was entitled to do in its appellate jurisdiction. We find no good ground to differ with the reasoning and the conclusion arrived at by the High Court.

24. In other words, it cannot be said that the aforementioned infirmities were either irrelevant or in any way insignificant or technical in nature as compared only to the ocular version of the witnesses. The prosecution, in our view, should have taken care of some of the  infirmities noticed by the High Court and appropriate steps should have been taken before filing of the charge-sheet to overcome them. It was, however, not done. The benefit of such infirmities was, accordingly, rightly given to the respondent by the High Court.

25. In the light of the aforementioned infirmities noticed in the prosecution case which, in our opinion, were material, the decision cited by the learned counsel for the appellant (State) cannot be applied to the facts of the case at hand. It is distinguishable.

26. Since the State has challenged the order of acquittal in this appeal, unless we are able to notice any kind of illegality in the impugned judgment, we cannot interfere in such judgment. In other words, it is only when we find that the impugned judgment is based on no evidence or/and it contains no reasoning or when it is noticed that the reasoning given are wholly perverse, this Court may consider it proper in appropriate case to interfere and reverse the decision of the High Court.

27. But when the High Court while reversing the decision of the Session Court acquits the accused and assigns the reasons by appreciating the entire evidence  in support of the acquittal, then this Court would not be inclined to interfere in the order of acquittal. In our view, it is necessary for the High Court while hearing the appeal arising out of the order of conviction to appreciate the entire evidence and then come to its conclusion to affirm or reverse the order. In a case of later, which results in reversal, with which we are here concerned, it is necessary for the High Court to assign cogent reasons as to why it does not consider it proper to agree with the reasoning of the Sessions Judge by pointing out material contradiction in evidence and infirmities in the prosecution case. Case at hand is of this nature.

28. In view of foregoing discussion, we find no merit in the appeal. The appeal fails and is accordingly dismissed.

Kailash Gour and Others Vs State of Assam [SC 2011 December]

KEYWORDS : Communal disturbance-Delay- murder acquittal

Criminal Law-min

DATE:- 15-12-2011-

  • Every accused is presumed to be innocent unless his guilt is proved. The Presumption of innocence is human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India.
  • there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for any thing specially applicable to a particular case or class of cases
  • In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.

ACTS:- Sections 448, 324 and 302 read with Section 34 Indian Penal Code-

(2011) 13 SCALE 549

(SUPREME COURT OF INDIA)

Kailash Gour and Others Versus State of Assam

(Before : Dalveer Bhandari, T.S. Thakur and Dipak Misra, JJ.)

Criminal Appeal No. 1068 of 2006 : Decided On: 15-12-2011

Penal Code, 1860—Sections 448, 324 and 302 read with Section 34—Murder—Common intention—Conviction—Communal disturbance—Victims had fallen prey to mob violence—Major lapses in investigation of case—Evidence of eye-witnesses not inspiring confidence—Unless proved to be perpetrators of crime beyond reasonable doubt, appellants cannot be convicted and sentenced for the same—Appellants acquitted by extending benefit of doubt—Appeal allowed.

JUDGMENT

T.S. Thakur, J—This appeal arises out of a judgment and order dated 29th June, 2006, passed by the High Court of Judicature at Gauhati whereby Criminal Appeal No. 133 of 2005 filed by the Appellants has been dismissed and the conviction and sentence of life imprisonment awarded to them by the trial Court for offences punishable under Sections 448, 324 and 302 read with Section 34 Indian Penal Code upheld.

2. The appeal was initially heard by a Division Bench of this Court comprising S.B. Sinha and H.S. Bedi, JJ., who differed in their conclusions. While S.B. Sinha, J. acquitted the Appellants giving them the benefit of doubt, Bedi, J. upheld their conviction and sentence and consequently dismissed the appeal. The appeal has, in that backdrop, been listed before us to resolve the conflict.

3. Briefly stated, the prosecution case is that at about 10.00 p.m. on December 14, 1992, Mohd. Taheruddin (PW2) a resident of village, Changmazi Pathar situate within the limits of Police Station Doboka, District Nagaon in the State of Assam was guarding his paddy crop in his field close to his house. Md. Mustafa Ahmed (PW3), one of the two sons of Mohd. Taheruddin was sleeping at home in one of the rooms while Md. Hanif Ahmed (PW4) was together with one Zakir, said to be a close relative, was sleeping in the kitchen. Sahera Khatoon wife of Mohd. Taheruddin and his daughters Hazera Khatoon, Jahanara Begum, Samana Khatoon and Bimala were sleeping in another room. A mob allegedly comprising nearly twenty people entered the house of Mohd. Taheruddin and forcibly opened the door. Around the same time another house belonging to one Nandu situate at some distance from Mohd. Taheruddin?s house was on fire. The prosecution case is that Md. Mustafa Ahmed (PW3) heard accused Gopal Ghose calling for ?Munshi? which ostensibly is also how Mohd. Taheruddin was known. Md. Mustafa Ahmed (PW3) is said to have replied that Taheruddin was not at home. Apprehending danger, Md. Mustafa Ahmed escaped from the house but not before Gopal Ghose had injured him with the help of a spear. On his way out Md. Mustafa Ahmed is said to have recognised two persons standing outside the house allegedly armed with dao, dagger etc. Out of the house and in the field, he saw his father Mohd. Taheruddin coming homeward. Md. Mustafa Ahmed told him not to do so for he may be killed by the mob that had attacked the house. Taheruddin paid heed to the advice and watched the incident from a distance. According to his version Rahna Gour, one of the members of the mob, shot an arrow at him which hit his right hand. After the crowd had left the place he shouted to attract the attention of an army vehicle that was passing by and reached the spot only to find his daughters Bimala and Hazera lying dead and his wife Sahera Khatoon lying injured in the middle of a paddy field near the house. He carried her home where she died after some time. Zakir Hussain who was sleeping along with Md. Hanif Ahmed (PW4) in the kitchen was also injured by the mob. According to the version of Md. Hanif Ahmed (PW4) three accused persons, namely, Kailash, Hari Singh and Ratan entered his room and took away Zakir with them. Hanif is said to have stepped out of his house to take shelter behind the banana trees growing near the house and witnessed the entire incident from there. According to his version Gopal Ghose, Kailash Gour, Gundulu Gour, Krishna Gour and Harendra Sarkar assaulted his mother while his sister Hazera Khatoon was attacked by Budhuram Timang, Hari Singh and Rahna. Bimala, the other sister, was similarly assaulted by Gopal, Ratan Das and Harendra Sarkar. The rest of the sisters, however, managed to escape unhurt.

4. The injured were then taken to Nagaon Civil Hospital by the police who had also arrived at the place of occurrence on receipt of intimation about a house having been put on fire in the neighbourhood. The dead bodies were removed in the army vehicle, while Zakir Hussain and Md. Mustafa Ahmed were medically examined by the medical officer who found the following injuries on them:

Zakir Hussain

1) There was vertical cut injury over the lip. Size 2′ x «’.

2) There are six cut injuries over the scalp each about 2′ x«’.

3) Left little finger was severed at the bone of the proximal phalange.

4) There is swelling and tenderness over the right hand.

5) There were two cut injuries over the back, on each side.

There was multiple cut injury with blunt injury of the right hand with sharp cutting. Wounds were dangerous in nature. Md. Mustafa Ahmed

1) Penetrating injury of the right leg with sharp pointed weapon. Size 1/3′ x «’.

The injury is fresh and margins were irregular.

2) Simply cut injury by sharp pointed object.

5. The post-mortem examination on the dead bodies was conducted by Dr. Madhusudhan Dev Goswami (PW1) who reported incised wound on the right upper neck of Hazera Khatoon and two incised wounds one on the neck and other on left upper neck of Bimala Khatoon. Similarly, injuries were also noticed by the doctor on the dead body of Sahera Khatoon. After completion of the investigation the police filed a charge sheet against 14 persons out of whom 13 were named in the First Information Report. The accused persons were charged with offences punishable under Sections 302, 326, 324, 323, and 448 read with Section 34, Indian Penal Code. The accused pleaded not guilty to the charges and claimed a trial. Accused Gopal Ghose, it is noteworthy, passed away during the trial.

6. By its judgment and order dated 18th June, 2005, the trial Court convicted 8 out of 14 persons for the offence of murder and sentenced them to undergo imprisonment for life and a fine of ` 2,000/-, and in default of payment to suffer rigorous imprisonment for six months. The High Court has, as seen earlier, upheld the conviction of the Appellants while acquitting Ratan Das, Gundulu Gour and Budhu Timang giving them benefit of doubt. Two appeals were filed against the said judgment and order, out of which viz. Crl. Appeal No. 907 of 2006 filed by Harendra Sarkar has since been dismissed as abated upon the death of the Appellant in that appeal. The present criminal appeal is, therefore, relevant only to Appellants Kailash Gour, Krishna Gour, Hari Singh Gour and Rahna Gour.

7. We have heard Learned Counsel for the parties at considerable length. The prosecution has examined 7 witnesses in all. These are Dr. Madhusudhan Dev Goswami (PW1), Mohd. Taheruddin (PW2), Md. Mustafa Ahmed (PW3), Md. Hanif Ahmed (PW4), Abdul Jabbar (PW5), Dr. Jiauddin Ahmed (PW6) and B.N. Kalita (PW7).

8. The deposition of Dr. Madhusudhan Dev Goswami (PW1) who conducted the post-mortem on the dead bodies of the three unfortunate victims leaves no manner of doubt that they suffered a homicidal death. The nature of the injuries found on the dead body of the deceased Smt. Sahera Khatoon and her two minor daughters Hazera Khatoon aged 7 years and Bimala Khatoon aged 3 years manifestly show that they suffered a homicidal death. To that extent we see no reason to interfere with the findings recorded by the trial Court and the High Court in appeal. It is noteworthy that even in the dissenting judgments delivered by S.B. Sinha and H.S. Bedi, JJ., their Lordships are unanimous on the cause of death of the three victims. The question, however, is whether the prosecution has established beyond a reasonable doubt that the Appellants were the perpetrators of the crime. The prosecution has, in that regard, placed reliance upon the deposition of Mohd. Taheruddin (PW2) and his two sons named Md. Mustafa Ahmed (PW3) and Md. Hanif Ahmed (PW4). We shall refer in some detail to the depositions of these three witnesses especially because while Sinha J. has held that only Md. Hanif Ahmed (PW4) claims to be an eye witness to the occurrence, Bedi J. has taken the view that all the three witnesses were eye witnesses to the incident.

9. Mohd. Taheruddin (PW2) has in his deposition stated that the accused persons were known to him as they live within one mile from his village. On the date of occurrence he was guarding harvested paddy in the field to the West of his house. In his house his sons Md. Mustafa Ahmed and Md. Hanif and Zakir Hussain, a young boy, were sleeping. In another room of the house were his wife Sahera Khatoon and daughters Hazera Khatoon, Jahanara, Bimala and Samana Khatoon. He also used to sleep in that very room but on the date of occurrence he was in the field. He saw a group of 10-12 men coming from the North of his homestead and another group of 10-12 men coming from the South. They assembled in front of his house and entered the premises. Accused Gopal Ghose called out his name and asked if ?Munshi? was at home. Hearing this, the witness started moving towards his house as there was a commotion. In the meantime his eldest son Mustafa Ahmed came and advised him not to do so as people were being attacked there. The boy ran towards the West through the paddy fields out of fear. The witness came close to the house to have a look and saw the mob striking the walls of his house with dao and lathi. A couple of youth were running away towards the West. Rahna Gour shot an arrow at the witness which hit the witness on his right hand. The accused came out from the house on the road, blew whistles and went away. The witness then reached his house and raised an alarm. An army vehicle also arrived. He saw the injured Bimala who had died. He also saw Hazera lying dead besides the road to the house. He took Bimala on his shoulder and stood on the road. He then found his wife Sahera Khatoon lying injured in the paddy field near the house and carried her home. She died immediately after being given water. His son Mustafa and Zakir sustained cut injuries. The Army personnel saw all this. Police was also with them. The Army sent the injured to Nagaon Civil hospital and took the dead bodies to Doboka Police Station.

10. There were disturbances over demolition of a mosque in the year 1992. He got his statement (ejahar) written by Abdul Jabbar and lodged the same under his signature in the police station. In cross-examination the witness stated that ejahar was written at his house on the 3rd day in the evening and that Investigating Officer Shri Kalita was present at that time. Other police personnel were also with him. The dead bodies were buried before the ejahar was written. Police, Army and the Magistrate were present there. While ejahar was being written at the house of the witness, he called the village President Abdul Jabbar and other prominent persons of the village and upon being advised by the Investigating Officer, Gaji Saheb also came. At the time of writing the ejahar his injured sons were at Nagaon Civil Hospital. Witness further stated that before the ejahar had been written, the Daroga had interrogated the prominent persons. But the witness did not discuss anything with the prominent persons. He told them about his recognising a couple of the accused persons. After Jabbar had written the ejahar, he had read it out to the witness. Witness further stated that he and his son together named 13 persons in the ejahar out of whom he knew only 4 who had come to his house and called him.

11. In the ejahar he had written that apart from the 13 people named by him there were 30-35 other people. Rahna Gour?s name was also written in the ejahar. The house of the witness is in the middle of a field and there are no houses nearby. The occurrence had taken place one week after the demolition of the mosque. He also had a case concerning a land dispute against accused Hari Singh and Kailash but did not know whether Gopal had got them out on bail in that case. He had also been arrested in connection with a case the year before. He denied having been arrested by the police on a number of other occasions.

12. The witness did not see whether the people who had assembled there were carrying anything in their hands. The rest of the people were in the courtyard when Gopal shouted and asked whether Munshi was at home. Till before hearing Mustafa?s shout the witness had not moved. After being cautioned by Mustafa, the witness went back towards West and then stopped. Witness further stated that Nandu?s brother?s house was burnt when the Army personnel arrived. His house was 40-50 nals (70 ft.) away from that of Nandu. Before the Army vehicle had returned for the second time, Jabbar Bari, Gaji Sahah, Noor Islam, Hamid and Ors. had arrived at his house.

13. None of the 30-35 people had chased the witness. Witness also stated that till before filing the ejahar he had not told the Investigating Officer about the occurrence. The next day the Daroga asked him to go gather a few people so that he could interrogate them. When the Investigating Officer came next day, he called the people. They were all muslims. He did not remember whether he had mentioned the moonlight in the ejahar. The witness was confronted with certain omissions in the statement recorded under Section 161 Code of Criminal Procedure.

14. On a careful reading of the statement of Md. Taheruddin (PW2) we are of the view that he is not an eyewitness to the killing of the victims as such. All that the witness saw from a distance was that 30-40 people had gathered in front of his house and there was a commotion including the shouts of his son Mustafa, who ran towards him to tell him not to go home because people were being attacked there. The witness does not accuse any particular individual of assaulting or killing of the three victims. Even regarding identification of those persons he claimed to know only four who had come to his house and had called him. What is interesting is that an injury said to have been received by him from an arrow shot by Rahna Gour was not mentioned in the First Information Report or medico-legally examined by the doctor. The deposition of the witness suggests that a mob had entered his house and attacked the inmates. Besides, who committed what act resulting in what injury to either the prosecution witnesses or any one out of the dead is not evident from the deposition of the witness. We shall presently revert back to the deposition of this witness when we examine credibility of the First Information Report. We may for the present simply state that we agree with Sinha, J. that this witness is not a witness for the murder of any one of the three victims.

15. We may for now take up the deposition of Md. Mustafa Ahmed (PW3). In his deposition this witness stated that his family consisted of 9 persons including his father Taheruddin, mother Sahera Khatoon. On the fateful day of 14th December, 1992 he was at home while his father was guarding paddy in the field, 50 meters away. Accused Gopal came to the house calling for his father. The witness could recognise him by his voice and responded that he was not at home. He then asked where he had gone, the witness said that he had been guarding paddy in the field. Gopal and 12-14 people who had come with him then started thrusting daggers, spears etc. into the walls. They opened the bamboo door of his house. Gopal, Hari Singh and Kailash stood in front of the door. Gopal started poking him with a spear which injured him. He pulled the spear out and ran out of the room along with the spear. He recognised two more men Haren Sarkar and Rahna Gour who were armed with dao, dagger, arrows etc. He knew them as they were from the same village. Thereafter the witness ran towards the field. His father was also coming towards the house but the witness stopped him and told him not to go home as he would be killed. The witness stated that he did not recognise the man who had hacked his two sisters Bimala Khatoon and Hazera Khatoon and his mother. He returned after 15 minutes and found his mother lying in a critical condition but had not died till then. He called the villagers and with their help got his mother home. His sisters were lying dead. Their bodies were also taken home. By the time his mother also died. Police also arrived within five minutes and took the witness and Zakir to the Civil Hospital. Both the witness and Zakir had sustained injuries.

16. In cross-examination the witness said that Zakir was not his consanguine brother but is distantly related to him. Within five minutes of the occurrence, officer in charge of Doboka P.S. arrived there with five policemen. But the witness did not know who had informed them about the incident. The witness did not tell the officer in charge about the occurrence. The officer in charge stayed back and the policemen and the driver took the witness to the police station from where they were taken to the hospital. The witness and Zakir stayed at the police station for half an hour. Police did not ask the witness about the occurrence. He was interrogated in the hospital two or three days after the incident. It is not known who lodged the ejahar and when. Disturbance over the demolition of the mosque were going on. People whose houses had been burnt or whose family members had died had taken shelter in the camp out of fear. He was terribly afraid when spears were being thrust into his room. While coming out he saw 15-20 men outside. But while inside he recognised three men and two more when coming out. Witness deposed:

I had not seen who had killed my two sisters and where. A lot of people were there when I came out of the house. I did not notice who had been assaulting whom and where.

17. When his father and he had been discussing the names of the assailants or the probable assailants, the men whom he had called were also with them.

18. From the above it is clear that the witness does not claim to have seen the act of violence against the victims. The witness simply says that Gopal and three Ors. had entered the house and injured him with a spear whereupon he made good his escape, recognising two intruders on his way out. As to when and where and by whom were his mother and sisters hacked to death is something on which the witness pleads complete ignorance. In that view we respectfully agree with the opinion expressed by Sinha, J. that Md. Mustafa Ahmed (PW3) is not an eye-witness to the occurrence although he may have observed certain incidents that preceded the actual act of killing of the victims. It was also relevant that the witness did not make any disclosure to the police, who was on the spot within five minutes of the occurrence, about the assailants nor did he do so till 2-3 days after the incident when the Investigating Officer interrogated him in the hospital. He also did not know about the lodging of the FIR nor did he know as to who had lodged the same and when.

19. That brings us to the deposition of the only other witness who is said to be a witness to the occurrence. Md. Hanif Ahmed (PW4) was also like Md. Mustafa Ahmed at home when the mob attacked their house. The witness has stated that accused Kailash, Hari Singh and Ratan entered his room and took away Zakir with them. Out of fear the witness ran out of the house and took shelter under the banana trees growing near his house and observed the incident from there. The witness claimed to have seen accused Gopal, Kailash, Gundulu, Krishna and Haren Doctor giving blows on the person of his mother. Similarly, he also claimed to have seen Budhuram Timang, Hari Singh and Rahna hacking his sister Hazera. Bimala who was 4-5 years old was also similarly assaulted by accused Gopal, Ratan and Haren Doctor according to the witness. After the incident accused persons left by which time his father had come to the house from the paddy field. The Army personnel who had come there sent Zakir and Mustafa to the Civil Hospital Nagaon for treatment.

20. The incident, according to the witness, happened on a moonlit night which enabled him to identify the assailants. The witness claimed that the police arrived at the place of occurrence in the meantime. The witness and his father searched for his mother and sisters with the help of a torch in the field and discovered their bodies within 3-4 minutes. While both the sisters had died, his mother died 10 minutes later. Police, according to the witness, came on the following day and interrogated them. FIR was written at the police station on the dictation of the witness and was signed by him. Witness further stated that he did not know whether his father had lodged any FIR to the police. Finally the police took a written report from him and his father. The witness was confronted with certain significant omissions in the statement made under Section 161 Code of Criminal Procedure.

21. Abdul Jabbar (PW5) is a witness who had scribed Ext. 1. According to the witness ejahar was written at the house of Taher Ali whose house is 2 Kms. from that of this witness. He went to Taher?s house where 100-200 people had gathered. Taher had discussed the things that should be mentioned in the ejahar and had given the names of the accused persons himself.

22. Dr. Ziauddin Ahmed (PW6) is a witness to the medical examination of the injured witnesses Mustafa Ahmed and Zakir and has proved the injury report.

23. Shri B.N. Kalita (PW7) is the Investigating Officer. In his statement this witness deposed that he was attached to the Doboka Police Station and received message from Biresh Dutta that a fire had occurred at the place of occurrence which information was entered in General Diary under Entry No. 532 dated 14th December, 1992. He led the police staff to Mikir Gaon. Taheruddin lodged a formal ejahar there. The case was registered and investigation taken up. He drew sketch of the place and conducted inquest and post-mortem on the dead-bodies and arrested the accused persons. The charge sheet was finally submitted by S.I. Dharma Kanta Talukdar.

24. In cross-examination this witness has stated that a large number of police had been deployed in the area for maintenance of law and order on account of disturbances arising out of the dispute over the demolition of the mosque. He received a written ejahar at the police station on 15th December, 1992 from Taheruddin at 12.10 p.m. He proved the omissions in the very statements of Mohd. Taheruddin (PW2), Md. Mustafa Ahmed (PW3) and Md. Hanif Ahmed (PW4) recorded under Section 161 Code of Criminal Procedure.

25. That being the state of evidence adduced in the case, the question is whether the deposition of Md. Hanif, the solitary eye witness, is reliable, having regard to the attendant circumstances. The prosecution witnesses except the two doctors examined at the trial have all deposed that the communal atmosphere in the area was surcharged as an aftermath of the demolition of the mosque, an event that took place just about a week before the occurrence in this case. Those affected by the disturbances were shifted to camps established by the administration. Deployment of a large police force in the area to which the Investigation Officer has referred in his deposition also was clear indicator of the atmosphere being surcharged and tense. That a house was set afire in the neighbourhood of the place of occurrence is also amply proved by the evidence on record. As a matter of fact, the police arrived on the spot within minutes of the commission of the gruesome murders not because any report was made to it about the said crime but because it had received information about a house having been set on fire. Once on the spot the police and the Army realised that there was much more at their hands than just an incident of fire. A mob comprising 35- 40 people had intruded in the homestead of Taheruddin and committed cold blooded murder of three innocent persons, two of whom were female children of tender age. If the prosecution version were to be believed, the Investigating Officer had the opportunity of getting an eye witness and first hand account of the incident within minutes of the commission of the crime. In the ordinary course, the Investigating Officer would have immediately recorded the First Information Report based on the eye witness account of the occurrence given by Md. Hanif and started his investigation in the right earnest. That is not, however, what happened. No effort was made by the Investigating Officer nor is there any explanation for his failure to ascertain from the alleged eye witness the sequence of events and the names and particulars of those who were responsible for the same. Instead, without the registration of the First Information Report, the Investigating Officer completes the inquest, prepares a site plan and gets the post mortem of the dead conducted on 15th December, 1992, long before the First Information Report was registered at 11.00 p.m. late in the evening on that date.

26. There can be only two explanations for this kind of a situation. One could be, that the Investigating Officer was so stupid, ill-trained, ignorant of the law and procedure that he did not realise the importance of getting a crime registered in the police station concerned before undertaking any investigation including conduct of an inquest, post mortem etc. The other explanation could be that since neither the Investigating Officer had any clue as to who the perpetrators of the crime were nor did the witnesses now shown as witnesses of the occurrence had any idea, the investigations started without any First Information Report being recorded till late at night on 15th December, 1992. We are inclined to believe that the second explanation is more probable of the two. We say so for reasons that may be summarised as under:

(i) The Investigating Officer was a Sub Inspector of Police and the Station House Officer of Police Station Doboka. It follows that he had sufficient experience in conducting investigations especially in cases involving heinous crimes like murder. We also assume that the incident having taken place in an area which was apparently susceptible to communal violence and widespread disturbances as a result of the dispute over the demolition of the mosque, the same would have been reported to the higher officers in the police administration who would in turn ensure appropriate action being taken with suitable care in the matter.

(ii) The least which the Investigating Officer would do was to record the statement of the eye witnesses or send the eye witnesses to the police station for getting the First Information Report recorded. Interestingly, while the alleged witnesses to the occurrence were first sent to the police station, no one ever questioned them about the incident nor did the witnesses volunteer to make a statement. It defies one?s imagination how Md. Hanif who was on the spot and who is alleged to have seen the occurrence was not questioned by the Investigating Officer especially when he did not have any injury much less a serious one requiring immediate medical care and attention. Even if the eye witness was injured, there is no reason why his statement could not be recorded in the hospital to ensure that an FIR is registered without undue delay and those responsible for committing the crime brought to book. Failure of the prosecution to provide any explanation much less a plausible one shows that the investigating agency had no clue about the perpetrators of the crime at the time when it reached the spot or soon thereafter nor did anyone claim to have seen the assailants, for otherwise there was no reason why they could not be named and an FIR registered immediately. This Court in State of H.P. v. Gian Chand, (2001) 6 SCC 71 dealt with the effect of failure of prosecution to satisfactorily explain the delay in the lodging of the FIR and declared that if the delay is not satisfactorily explained the same is fatal to the prosecution. This Court observed:

If the prosecution fails to satisfactorily explain the delay and there is a possibility of embellishment in the prosecution version on account of such delay, the delay would be fatal to the prosecution. However, if the delay is explained to the satisfaction of the court, the delay cannot by itself be a ground for disbelieving and discarding the entire prosecution case.

To the said effect is the decision of this Court in Dilawar Singh v. State of Delhi (2007) 12 SCC 641, where this Court observed:

In criminal trial one of the cardinal principles for the Court is to look for plausible explanation for the delay in lodging the report. Delay sometimes affords opportunity to the complainant to make deliberation upon the complaint and to make embellishment or even make fabrications. Delay defeats the chance of the unsoiled and untarnished version of the case to be presented before the court at the earliest instance. That is why if there is delay in either coming before the police or before the court, the courts always view the allegations with suspicion and look for satisfactory explanation. If no such satisfaction is formed, the delay is treated as fatal to the prosecution case.

Reference may also be made to the decisions of this Court in State of Punjab v. Daljit Singh (2004) 10 SCC 141 and State of Punjab v. Ramdev Singh, (2004) 1 SCC 421 which also reiterated the legal position stated in the earlier mentioned decisions.

(iii) From the deposition of Mohd. Taheruddin (PW2), it is clear that the FIR was drawn only after the Investigating Officer had through this witness got the people from the locality gathered. The officer then interrogated them and after deliberations with the elders of the community got a report scribed by Abdul Jabbar (PW5) naming as many as 13 persons as accused. PW5 has in his deposition clearly admitted that Mohd. Taheruddin had discussed in the gathering of the prominent people of the area the facts to be mentioned in the ejahar. There was nearly 100/200 people who had assembled when the ejahar was written by him. It is difficult to appreciate how a report prepared after such wide consultation and deliberations could carry a semblance of spontaneity to be credible in a criminal trial of such a serious nature. Even the Investigating Officer was contributing to the creation of a report after confabulations with elders of the area. Mohd. Taheruddin has in this regard deposed:

While ejahar was being written at his house, he called the village President Abdul Jabbar and other prominent persons of the village and upon being advised by the I.O. Gaji Sahab also came. xxxxx The Daroga had interrogated prominent persons before the writing of ejahar.

(iv) According to Mohd. Taheruddin (PW2) he had recognised only four of the accused who had come looking for him. There is no explanation as to how were the remaining accused named when he had not identified them at the time of the occurrence and at whose instance especially when according to the witness his sons were in the hospital when the ejahar was scribed.

(v) The Investigating Officer having prepared a site plan of the place of occurrence before the registration of the case and even before the statements of the witnesses were recorded under Section 161 Code of Criminal Procedure., did not make any mention about the banana trees behind which Md. Hanif (PW4) is said to have hidden himself. If the story regarding PW4 having had observed the occurrence from behind the banana trees was correct, the trees ought to appear in the site plan which is not the case. Absence of any banana trees in the area around the house is an indication of the fact that no implicit reliance can be placed upon the version of Md. Hanif (PW4).

(vi)According to PW3 and PW4, after they emerged from their hideouts and after their father returned to the spot they started looking for the dead bodies with the help of a torch. If PW4 was right in his version, then the victims were hacked in front of the door of the house, there was no question of searching for the dead bodies with the help of torch light.

(vii)The use of torch light to look for bodies shows that there was no source of light. The night was a foggy, cold December night. The presence of fog is admitted by PW4 in his deposition. Assuming that there was moonlight, the presence of fog was a disabling factor that made visibility poor for any one to observe the occurrence from a distance when a huge mob of 30-40 people was on the rampage.

(viii)According to Shri B.N. Kalita (PW7) the Investigating Officer in the case a written ejahar was presented to him by Taheruddin when the former reached the spot on 14th December, 1992. If that were so, the least which the officer would have done was to take that ejahar as the first information report regarding the occurrence and register a case of murder against those named in it. This admittedly was not done. In cross- examination the witness said that a written ejahar was presented to him by Taheruddin on 15th December, 1992 at 12.10 p.m. Now, even if that were true, there is no explanation why the officer delayed registration of the FIR till 11.00 p.m. on that day. The delay in the lodging of the FIR and the circumstances in which the ejahar was written, cast a serious doubt about the whole prosecution case especially when there is no explanation whatsoever for the failure of the Investigating Officer to record the report based on the alleged eye witness account immediately after he reached the spot.

(ix) The non-examination of Zakir, injured witness at the trial is also inexplicable. Zakir was allegedly taken out of the house by the accused persons and assaulted. The best person to say who the persons responsible were for the assault was this witness himself. The failure of the prosecution to put him in the witness box, in support of its version is also an important circumstance that cannot be legally brushed aside. The prosecution has failed to examine other inmates who were inside the house and who had escaped unhurt in the occurrence.

(x) The medical evidence adduced in the case also does not support the prosecution version. According to Dr. Madhusudhan Dev Goswami (PW1), who conducted the post-mortem examination on the dead bodies of the victims had deposed that the death had occurred 48 to 72 hours prior to the examination. If the prosecution version as given by alleged eye witnesses is accepted the victims had died within 12 hours of the post- mortem examination. This inconsistency in the medical evidence and the ocular evidence assumes importance rendering the version given by the prosecution witnesses suspicious.

(xi) According to Mohd. Taheruddin (PW2) the Appellant had shot an arrow towards him which missed the target but hurt the witness in his hand. There is no corroborative medical evidence to suggest that Taheruddin has sustained any injury on the hand or any other part of his body.

(xii) Even regarding the motive for commission of the crime the prosecution case is that the incident had its genesis in the demolition of the mosque and the large scale disturbances that followed. While it is evident that large scale disturbances had indeed taken place in the area including an incident of a house being set on fire in the neighbourhood of the place of occurrence, the previous enmity between some of the Appellants and Taheruddin on account of a land dispute between them could be a possible reason for Taheruddin naming Appellants and Ors. close to him as assailants. Enmity between complainant party and the accused being a double-edged weapon there could be motive on either side for the commission of offence as also for false implication.

27. It is one of the fundamental principles of criminal jurisprudence that an accused is presumed to be innocent till he is proved to be guilty. It is equally well settled that suspicion howsoever strong can never take the place of proof. There is indeed a long distance between accused may have committed the offence and must have committed the offence which must be traversed by the prosecution by adducing reliable and cogent evidence. Presumption of innocence has been recognised as a human right which cannot be wished away. See Narendra Singh and Anr. v. State of M.P., (2004) 10 SCC 699 and Ranjitsingh Brahmajeetsingh Sharma v. State of Mahsrashtra and Ors., (2005) 5 SCC 294. To the same effect is the decision of this Court in Ganesan v. Rama SRaghuraman and Ors., (2011) 2 SCC 83 where this Court observed:

Every accused is presumed to be innocent unless his guilt is proved. The Presumption of innocence is human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India.

28. The above views were reiterated by this Court in State of U.P. v. Naresh and Ors., (2011) 4 SCC 324.

29. In his dissenting judgment our esteemed Brother, Bedi, J. has referred to as many as five different Reports of Commissions of Enquiry set up over the past five decades or so to point out that the findings recorded in the reports submitted by the Commissions indicate an anti-minority bias among the police force in communal riot situations and investigations. Copious extracts from the reports reproduced in the judgment no doubt suggest that in situations when the police ought to protect the citizens against acts of communal violence, it has at times failed to do so giving rise to the perception that the police force as a whole is insensitive to the fears, concerns, safety and security of the minority communities. Whether these reports have been accepted by the governments concerned and if so how far have they contributed to the reform of the force is a matter with which we are not directly concerned in this case. All that we need to say is that sooner such reforms are brought the better it would be for an inclusive society like ours where every citizen regardless of his caste or creed is entitled to protection of his life, limb and property. It will indeed be a sad day for the secular credentials of this country if the perception of the minority communities about the fairness and impartiality of the police force were to be what the reports are suggestive of. and yet it may not be wholly correct to say that the police deliberately make no attempt to prevent incidents of communal violence or that efforts to protect the life and property of the minorities is invariably half hearted or that instead of assailants the victims themselves are picked up by the police. So also there is no reason for us to generalise and say that there is an attempt not to register cases against assailants and when such cases are registered loopholes are intentionally left to facilitate acquittals or that the evidence led in the Courts is deliberately distorted. No one can perhaps dispute that in certain cases such aberrations may have taken place. But we do not think that such instances are enough to denounce or condemn the entire force for ought we know that for every life lost in a violent incident the force may have saved ten, who may have but for timely intervention been similarly lost to mindless violence. Suffice it to say that while the police force may have much to be sorry about and while there is always room for improvement in terms of infusing spirit of commitment, sincerity and selfless service towards the citizens it cannot be said that the entire force stands discredited. At any rate the legal proposition formulated by Bedi J. based on the past failures do not appear to us to be the solution to the problem. We say with utmost respect to the erudition of our Brother that we do not share his view that the reports of the Commissions of Enquiry set up in the past can justify a departure from the rules of evidence or the fundamental tenets of the criminal justice system. That an accused is presumed to be innocent till he is proved guilty beyond a reasonable doubt is a principle that cannot be sacrificed on the altar of inefficiency, inadequacy or inept handling of the investigation by the police. The benefit arsing from any such faulty investigation ought to go to the accused and not to the prosecution. So also, the quality and creditability of the evidence required to bring home the guilt of the accused cannot be different in cases where the investigation is satisfactory vis-…-vis cases in which it is not. The rules of evidence and the standards by which the same has to be evaluated also cannot be different in cases depending upon whether the case has any communal overtones or in an ordinary crime for passion, gain or avarice. The prosecution it is axiomatic, must establish its case against the accused by leading evidence that is accepted by the standards that are known to criminal jurisprudence regardless whether the crime is committed in the course of communal disturbances or otherwise. In short there can only be one set of rules and standards when it comes to trials and judgment in criminal cases unless the statute provides for any thing specially applicable to a particular case or class of cases. Beyond that we do not consider it necessary or proper to say anything.

30. We are conscious of the fact that three innocent persons including two young children have been done to death in the incident in question which needs to be deprecated in the strongest terms but unless proved to be the perpetrators of the crime beyond a reasonable doubt, the Appellants cannot be convicted and sentenced for the same. We accordingly allow this appeal and acquit the Appellants giving them the benefit of doubt. They shall be set free forthwith unless required in connection with any other case.