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TMI Blog2020 (9) TMI 1187X X X X Extracts X X X X X X X X Extracts X X X X ..... with his innocence. In the present case, the prosecution as well as the High Court considered the recovery of photographs; recovery of mobile phone belonging to PW7, recovery of the knife and rope at the instance of the Accused and on alleged disclosure statements of the Accused on 9.9.2010. The prosecution also relied upon the recovery of jeep in which the photographs of the Accused were found. The prosecution also relied upon the disclosure statement of the Accused Anwar Ali with respect to recovery of crates and for the aforesaid prosecution heavily relied upon the testimony of PW5, PW6 and PW7 - the prosecution and the IO suppressed the material facts. Even in the cross-examination, the IO has stated that the sniffer dog had done nothing on the spot. In the cross-examination, he has also specifically stated that it is incorrect to suggest that the sniffer dog had traced the strings Ex. P52, knife Ex. P59 and vest Ex. P54. However, PW4 and PW5 in their deposition have categorically stated that the knife and rope were recovered on 2.9.2010. The aforesaid cannot be said to be minor contradictions. Therefore, the trial Court was justified in not believing the disclosure state ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... radesh and has reversed the judgment and order of acquittal passed by the learned trial Court and consequently has convicted the Appellants - original Accused for the offences punishable Under Sections 302 read with 34, 392, 201 and 420, Indian Penal Code and has sentenced the Appellants herein - original Accused to undergo life imprisonment for the offences punishable Under Section 302 read with 34, Indian Penal Code, the Appellants - original Accused have preferred the present appeal. 2. That the Appellants herein - original Accused were charged for the offences punishable Under Sections 302 read with 34, 392, 420 and 201, Indian Penal Code for having committed the murder of one Deepak. That the dead body of the deceased was found on 2.9.2010 near bypass Bihali Road, Chandigarh. That the dead body was seen by one Jashwinder Singh, PW4, who informed the police station, Bhunter. On receiving such information, the police came on the spot; recorded the statement of PW4; prepared Rukka and sent the same through Constable Pushparaj, PW2 to police station, Bhunter. FIR was registered by Head Constable Tara Chand. That the dead body was identified by the father of the deceased. The in ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 13, Code of Criminal Procedure were recorded. Before the trial Court, the prosecution mainly relied upon the disclosure statements, recovery of vehicle (jeep), recovery of knife and rope from the spot, recovery of mobile and photographs (from the jeep). Before the trial Court, the case was based on circumstantial evidence as there was no direct evidence. That on appreciation of evidence on record, both oral as well as documentary, the learned trial Court by a detailed reasoning did not believe the disclosure statements, recovery of knife and rope alleged to have been used for commission of the offence, recovery of mobile and the recovery of photographs from the jeep. That on appreciation of evidence, the learned trial Court found that the prosecution withheld the material information with respect to the sniffer dogs and on appreciation of evidence found that the recoveries were made earlier and the panchnama of the same were prepared subsequently on which PW5 and PW6 put their signatures. Having found that the prosecution has failed to establish and prove the complete chain of events and that it was a case of circumstantial evidence, by a detailed judgment and order, the learned ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ce disbelieved the recovery of knife and rope at the instance of the Accused and it was held that a very important link of the chain was missing; (v) that the learned trial Court gave a specific finding on appreciation of evidence on doubtful disclosure statements; (vi) that the High Court has failed to appreciate and consider that the knife, which is alleged to have been recovered on the disclosure statements of the Accused persons, had already been recovered on 2.9.2010 with the help of sniffer dogs, which was established from the evidence of PW4 and PW5; (vii) that the High Court ought to have appreciated that the recovery of knife and rope alleged to have been recovered on the disclosure statements of the Accused persons on 09.09.2010 was concocted one and to fill up the gaps in the prosecution case; (viii) that even the recovery of photographs, mobile phone of PW7 and the jeep from Chandigarh on 6.9.2010 is itself very doubtful, which came to be considered in detail by the learned trial Court; (ix) that even the conduct of Bhuntar police and the IO in not informing or taking help of the jurisdictional police and Chandigarh police while conducting investigation i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... with by the High Court. 3.1. Making the above submissions and taking us to the deposition of PW4, PW5 and PW18 and relying upon the decisions of this Court in the cases of Babu v. State of Kerala, (2010) 9 SCC 189; Bannareddy v. State of Karnataka (2018) 5 SCC 790; State of Rajasthan v. Mukesh Kumar alias Mahesh Dhaulpuria (2019) 7 SCC 678; and State of Rajasthan v. Madan alias Madaniya, (2019) 13 SCC 653, it is prayed to allow the present appeal and set aside the impugned judgment and order passed by the High Court and restore the well-reasoned judgment and order of acquittal passed by the learned trial Court. 4. The present appeal is vehemently opposed by the learned Counsel appearing on behalf of the Respondent - State of Himachal Pradesh. 4.1. It is submitted that in the present case the High Court has after re-appreciation of entire evidence on record, found the Accused guilty for the unnatural death of Deepak Kumar deceased. It is submitted that as such the re-appreciation of the entire evidence by the first appellate court is permissible; 4.2. It is submitted that the High Court, on re-appraisal of the entire evidence on record, has considered the following circu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... investigation there is some omission and defect, it is the legal obligation on the part of the court to examine the prosecution evidence de hors such lapses. 4.6. It is further submitted that in the present case the recovery of weapon of offence; recovery of jeep; recovery of photographs and the stolen mobile phone of PW7; recovery of crates have been established and proved by the prosecution beyond doubt by examining the relevant witnesses, which as such, were not believed by the learned trial Court for minor contradictions. It is submitted that therefore the order of acquittal passed by the learned trial Court warranted interference by the High Court. 4.7. Now so far as the submission on behalf of the Accused that in the present case the High Court has committed a grave error in interfering with the order of acquittal passed by the learned trial Court is concerned, it is submitted that in the present case of circumstantial evidence, the factum probandum or the primary fact stands established and having regard to the common cause and natural events and to human conduct and their relations, the complete chain of circumstances indicating the guilt of the Accused is establishe ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... d ambit of Section 378 Code of Criminal Procedure and the interference by the High Court in an appeal against acquittal is required to be considered. 5.2.1. In the case of Babu (supra), this Court had reiterated the principles to be followed in an appeal against acquittal Under Section 378 Code of Criminal Procedure. In paragraphs 12 to 19, it is observed and held as under: 12. This Court time and again 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 the 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. 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. Simi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of 'flourishes of language' to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion. (4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the Accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the Accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court. 6. In Ghurey Lal v. State of U.P. (2008) 10 SCC 450, this Court reiterated the said view, observing that the appellate court in dealing with the cases in which ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... is supplied) 5.2.2. When the findings of fact recorded by a court can be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: 20. 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. The 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. ( Vide Rajinder Kumar Kindra v. Delhi Admn. (1984) 4 SCC 635, Excise and Taxation Officer-cum-Assessing Authority v. Gopi Nath Sons 1992 Supp (2) SCC 312, Triveni Rubber Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P. (2009) 10 SCC 636). (emphasis supplied) 5.2.3. It is further observed, after following the decision of this Court in the case of Kuldeep Singh v. Commissioner of Police (1999) 2 SCC 10, that if a decision is arrived at on the basis of no evidence or thor ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) 8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nsel for the Appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal Under Section 417 Code of Criminal Procedure came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established Rule that the presumption of innocence of the Accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... an inference of guilt is sought to be drawn, must be cogently and firmly established; (ii) those circumstances should be of definite tendency unerringly pointing towards guilt of the Accused; (iii) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the Accused and none else; and (iv) the circumstantial evidence in order to sustain conviction must be complete and incapable of explanation of any other hypothesis than that of the guilt of the Accused and such evidence should not only be consistent with the guilt of the Accused but should be inconsistent with his innocence. (See Gambhir v. State of Maharashtra (1982) 2 SCC 351) 23. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4 SCC 116 while dealing with circumstantial evidence, it has been held that the onus was on the prosecution to prove that the chain is complete and the infirmity or lacuna in prosecution cannot be cured by false defence or plea. The conditions precedent before conviction could be based on circumstantial evidence, must be fully established. They are: (SCC p. 185, pa ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... aspect of the problem, the doctrine of benefit of doubt applies. Although there should not be any missing links in the case, yet it is not essential that each of the links must appear on the surface of the evidence adduced and some of these links may have to be inferred from the proved facts. In drawing these inferences, the court must have regard to the common course of natural events and to human conduct and their relations to the facts of the particular case. The court thereafter has to consider the effect of proved facts. 24. In deciding the sufficiency of the circumstantial evidence for the purpose of conviction, the court has to consider the total cumulative effect of all the proved facts, each one of which reinforces the conclusion of guilt and if the combined effect of all these facts taken together is conclusive in establishing the guilt of the Accused, the conviction would be justified even though it may be that one or more of these facts by itself or themselves is/are not decisive. The facts established should be consistent only with the hypothesis of the guilt of the Accused and should exclude every hypothesis except the one sought to be proved. But this does not mea ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... be considered by the learned trial Court cannot be said to be minor contradictions. In the present case, according to the prosecution and PW18-IO, on the basis of disclosure statements made by the Accused on 8.9.2010, the knife and rope were recovered on 9.9.2010. However, PW4 and PW5 have categorically stated in their deposition that the police brought the sniffer dogs on 2.9.2010 and the sniffer dogs recovered rope, knife etc. on 2.9.2010. So, according to even PW4 and PW5, the rope and knife were recovered on 2.9.2010 with the help of sniffer dogs. However, neither in the FIR there was a mention of recovery of knife and rope on 2.9.2010 with the help of sniffer dogs nor the IO in his examination-in-chief has stated so. It is required to be noted that the Accused were arrested on 8.9.2010 and prior thereto on 2.9.2010 the investigating officer visited the spot from where the knife and rope was recovered on 2.9.2010. In cross-examination, the IO admitted that he visited the spot from where the knife was recovered with sniffer dogs on 2.9.2010. He has also admitted in the cross-examination that this fact has not been mentioned in the FIR or in the statement of any witness. Thus, t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the learned trial Court for the same. 9. Now so far as the submission on behalf of the Accused that in the present case the prosecution has failed to establish and prove the motive and therefore the Accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in the case of Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in the case of Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the Accused. In paragraphs 25 and 26, it is observed and held as under: 25. In State of U.P. v. Kishanpal (2008) 16 SCC 73, this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 87-88, paras 38-39) 38. ... the motive is a thing which is primarily known to the Accused themselves and it is not possible for the prosecution to explain w ..... X X X X Extracts X X X X X X X X Extracts X X X X
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