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TMI Blog2023 (7) TMI 1416X X X X Extracts X X X X X X X X Extracts X X X X ..... articularly, where the view taken by the trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record - What is important is that neither PW3 nor PW6 could identify any of the three accused. They did not depose that the three policemen involved in the crime were those who were facing trial. Thus, there is no infirmity, much less perversity, in the view taken by the trial court that the testimony of PW-3 and PW-6 is not of much help to the prosecution qua the three accused facing trial. Adverting to the proven circumstances, what transpires is that the witnesses are consistent that there was a police action on that fateful night. Assuming that it is true that in the night there was an exchange of fire between men in uniform and members of the public, but there is no reliable evidence that the exchange of fire was with a view to kill. Moreover, the deceased did not die of a rifle bullet injury. Rather, he died from a .12 bore gunshot which could not be ascribed to rifles issued to the accused persons. Therefore, even if empties of rifle cartridges relatable to service rifles issued to the accused w ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... which skidded and fell. One of the policemen exhorted to shoot to kill. In consequence, shots were fired hitting the deceased, who collapsed at the spot. PW-3 and PW-6, however, managed to escape to the village. On information, villagers arrived at the scene of crime and so did the police. In the presence of police the deceased was rushed to the hospital but he succumbed to his injuries on the way. Thereafter, the dead body was taken to the hospital and after leaving the body there, PW-6 lodged the FIR, which was registered as Case Crime No.48/87 at P.S. Sikhera. 3. Another version of the incident was lodged at the instance of one Mahindra Singh on 25.06.1987, which gave rise to Case Crime No.48A/87. There it was alleged, inter-alia, that on 26.05.1987 a robbery took place in the village wherein one person died. As criminals were regularly visiting the village since then, a constant vigil was maintained by the villagers as well as the police which had been patrolling the area. It was alleged therein that while three police constables were patrolling the village and people of the village were keeping a watch in the night of 24.06.1987, at about 9.00 pm, a man came and raised an alar ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... em and claimed that they have been falsely implicated and made scapegoat. Nature of the Prosecution Evidence 7. The prosecution sought to bring home the charge against the aforesaid three accused by leading evidence to the following effect: - (i) On the date, time and place of the incident, the three accused were on a picket duty as reflected by the GD Entries made at the police station concerned; (ii) The GD Entries reflected that they had departed from the police station with a rifle and 50 cartridges each; (iii) The ballistic expert report confirmed that some of the empty rifle cartridges recovered from the spot were fired from the service rifles of the accused thereby confirming their presence at the spot; (iv) PW-3 and PW-6 narrated that the shots were fired by policemen who flashed torch light at the scooter riders; (v) PW-15 (Shyam Singh) confirmed participation of the three accused in the crime and proved that on exhortation by the other two accused, Anil Kumar took out a country made pistol and had fired a shot at the deceased; (vi) The villagers who had arrived at the spot after the incident had noticed that the three accused along with others were present at the spot; (v ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... m the autopsy report that the gun shot injury sustained by the deceased was not from a rifle bullet but from a .12 bore weapon which was not recovered from any of the accused persons. Hence, even if rifle bullets were found at the spot, they were not the ones from which injuries were caused to the deceased. As regards the cross version of the incident (i.e. Case Crime No.48A/87), no adverse inference was drawn against the accused as it was not at their behest. 13. Apart from above, the trial court noticed that, according to the prosecution version, several persons (i.e. villagers including PW-3 and PW-6 and police personnel) had arrived at the spot and the three accused were also present there, yet they were not identified. In these circumstances, it was concluded that if PW-3 and PW-6, who were travelling on another scooter in close proximity to the deceased, had recognized the accused persons, they would have identified them at the scene of crime as those who killed the deceased, and country made pistols might have also been recovered. 14. After analysing the entire prosecution evidence in detail, the trial court concluded that the prosecution had failed to prove that those three ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed the prosecution story with regard to the manner in which the incident occurred and, therefore, their testimony could be used to corroborate the testimony of PW-15, who not only narrated the incident but could recognize and identify the accused persons. 20. Thus, according to the learned counsel for the appellant, the trial court s verdict was perverse and rejection of the application seeking leave to appeal has resulted in grave miscarriage of justice. It has therefore been prayed that the appeal be allowed and the matter be remitted to the High Court to accord fresh consideration on merits. 21. Per contra, the learned counsel for the respondents submitted that, firstly, PW-3 and PW-5, who were travelling with the deceased, have not been able to identify the accused as those who were involved in the killing of the deceased; and, secondly, the deceased died of a gun-shot wound which could be ascribed to a .12 bore weapon, not a rifle which was with the accused. Moreover, some of the empty cartridges lifted from the spot did not match with the rifles of the three accused thereby giving rise to a possibility that someone else was also present with a rifle and had used it. In these ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... but that by itself need not be a ground for us to set aside the order and remit the matter to the High Court, particularly, when we have the relevant record to assess the merit of the prosecution case. More so, because the incident is of the year 1987 and the appeal has remained pending since more than a decade. In such circumstances, if we remit the matter to the High Court only to rewrite the judgment, it would be travesty of justice. Consequently, as the trial court has dealt with the matter at great length and has discussed each and every piece of evidence on which the prosecution seeks to rely, it would be apposite for us to assess whether, by not granting leave to appeal against the judgment of the trial court, there has been a miscarriage of justice. 27. It is trite law that in an appeal against acquittal, the power of the appellate court to reappreciate evidence and come to its own conclusion is not circumscribed by any limitation. But it is equally settled that the appellate court must not interfere with an order of acquittal merely because a contrary view is permissible, particularly, where the view taken by the trial court is a plausible view based on proper appreciatio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to the CB-CID from the local police and, therefore, there was no threat from the local police. In these circumstances, if the trial court discarded the testimony of PW-15, in our view, the same was justified. 30. Adverting to the proven circumstances, what transpires is that the witnesses are consistent that there was a police action on that fateful night. Assuming that it is true that in the night there was an exchange of fire between men in uniform and members of the public, but there is no reliable evidence that the exchange of fire was with a view to kill. Moreover, the deceased did not die of a rifle bullet injury. Rather, he died from a .12 bore gunshot which could not be ascribed to rifles issued to the accused persons. Therefore, even if empties of rifle cartridges relatable to service rifles issued to the accused were found at the spot, culpability of the accused persons in causing death of the deceased is not inferable. Further, there is no recovery of a .12 bore gun from any of the accused persons facing trial. Notably, after the incident, villagers congregated at the scene of crime. The police arrived at the spot and took the injured to the hospital. According to the p ..... X X X X Extracts X X X X X X X X Extracts X X X X
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