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TMI Blog2021 (12) TMI 1452X X X X Extracts X X X X X X X X Extracts X X X X ..... analysed by the trial court including the distance between his place of work and his residence. He did not use his wireless which was not in operation and went to the police station to give an oral complaint the first time but the same was not registered. PW-25 was known to him and it is surprising as to why no attempt was made to save the deceased immediately by taking him to the nursing home which was 50 meters away as a normal human conduct. There are many contradictions between the statements made by PW-1 and PW-2. PW-2 was also seen along with PW-1. He was another eye witness. He was a duty constable. The trial court rightly doubted his presence as well. Once again, even this witness has not given any complaint. We are dealing with the deposition of a police officer who is expected to know his duty. While PW-2 did not make a complaint but went on to do his duty, PW-1 did not attend to his duty thereafter or informed the police station in which he was posted. Though, PW-2 has stated that Accused made an attempt to attack him by throwing one of the material objects, even the High Court has disbelieved that. The said material object was recovered from some other place as could ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ve heard learned Counsel appearing for the parties, perused documents and the written arguments filled. Incidentally we called for the trial court records and went through them. FACTS: 3. PW-4 and PW-5 are brothers. The deceased was the maternal uncle of the aforesaid two witnesses. They attacked the mother of A-1 leading to a complaint given to PW-1, Sub-Inspector of Police. 4. Not satisfied with the registration of the first information report qua the offence at the hands of PW-1, a complaint was given before the Lokayukta by A-1. Incidentally, PW-1 was suspended. He was facing other charges as well. It was in vogue even at the time of giving evidence. 5. On the aforesaid motive, both the Accused carried three weapons, waylaid the deceased at a signal in a main road at about 5 p.m. and after the initial attack, dragged him to the pavement, and thereafter inflicted multiple injuries. Both the Accused and the deceased were travelling in two-wheelers. PW-1, who was working in a police station, a bit far away, was coming from his house after taking lunch. He was a chance witness. He saw the occurrence from a fair distance. He was known to the deceased. The deceased had ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ution witnesses have been marked to contradict their deposition before the Court. 11. The Court of Sessions without exception, threadbare considered all the materials including the witnesses who turned hostile. Most of the witnesses pertaining to conspiracy, occurrence, recovery and extraordinary judicial confession turned hostile. After due scrutiny, benefit of doubt was extended in favour of the Appellants. 12. The State took the case on appeal before the High Court. The High Court did not consider the entire evidence as discussed by the trial court. Nonetheless, it reversed the order of acquittal on the following grounds: The Trial Court had no idea of the concept of dying declaration and the principle governing it. The testimony of PWs 3, 4 and 5 ought to be read in unison and in conjunction with each other to come to an inference of motive. The testimony of PWs 1, 2 and 25 ought to have been accepted. The contradictions between the testimony of PW-2 and the statement Under Section 161 Code of Criminal Procedure, would only mean that the investigating officer was leaning towards the Accused. The medical evidence along with the documents m ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the insistence of the police which could be proved through the evidence of PW-25 himself. 17. Thus, when the trial court which had the advantage of seeing the witnesses in person during their deposition gave its verdict, it could not have been set aside through a cryptic order by the High Court without adequate discussion. The High Court ought not to have reversed the decision on the basis of a so-called dying declaration. 18. The counsel seeks support for his argument by placing reliance upon the following decisions: Jayamma and Anr. v. State of Karnataka (2021) 6 SCC 213 Paparambaka Rosamma and Ors. v. State of A.P. (1999) 7 SCC 695 Surinder Kumar v. State of Haryana (2011) 10 SCC 173 Chandrappa v. State of Karnataka (2007) 4 SCC 415 Rajendra Prasad v. State of Bihar (1977) 2 SCC 205 Padmanabhan Vijaykumar v. State of Kerala (1994) Supp. 2 SCC 156 Amar Singh v. State of NCT of Delhi (2020) SCC Online SC 826 Narayana Reddy alias Babu v. State of Karnataka (2016) 14 SCC 212 A Shanker v. State of Karnataka (2011) 6 SCC 279 Selvaraj v. State of Tamil Nadu (1976) 4 SCC 343 Pradeep Narayan Madgaonkar v. S ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s a case on its own merit despite its sensitivity. 22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark. 23. This Court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal Under Section 378 Code of Criminal Procedure. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this Court in Anwar Ali and Anr. v. State of Himachal Pradesh, (2020) 10 SCC 166: 14.2. When can the findings of fact recorded by a cou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri.) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the Accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: 10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This Rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case. 31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri.) 1320], the High Court reversed the order ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... erference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case. 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309 : 1999 SCC (Cri.) 410], after observing that though there is some substance in the grievance of the learned Counsel appearing on behalf of the Accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the Accused, the High Court, therefore, was fully ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122]) In our opinion, there is no substance in the contention raised on behalf of the Appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions. 31.4. In K. Gopal Reddy [K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri.) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule. ON MERIT: 24. The trial court considered the testimonies of the other witnesses first before embarking upon eye witnesses and the material witness. It gives exhaustive reasoning for its ultimate conclusion. We have already recorded the fact that most of the witnesses turned hostile. PW-16, an independent witness also states that she has not seen the occurre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... y, PW-1 did not attend to his duty thereafter or informed the police station in which he was posted. Though, PW-2 has stated that Accused made an attempt to attack him by throwing one of the material objects, even the High Court has disbelieved that. The said material object was recovered from some other place as could be seen from the recovery memo, despite the fact that it was nobody's case that the Accused retrieved the same and kept it with them while being chased. 28. PW-25 is the doctor who is well known to PW-1. While PW-1 deposed that he did not actually accompany the deceased, PW-25 did make a statement that both the police and public admitted the deceased. This witness did admit that exhibit Ex. P-41 made a mention that the deceased was brought by PW-1 and Ramesh. We may note, both PW-1 and PW-2 did not speak about this. He had also stated that he did not know whether the contents of Ex. P-41 as correct or not. He acknowledged the fact that he was well known to PW-1 and his family. 29. On a reading of the evidence of PW-25 we do not find any existence of dying declaration in it. He had deposed that he did not remember whether the deceased told him that the Accus ..... X X X X Extracts X X X X X X X X Extracts X X X X
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