Allahabad High Court
State Of U.P. vs Bachchan Khan on 7 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD A.F.R. Court No. - 42 Case :- GOVERNMENT APPEAL No. - 379 of 2019 Appellant :- State of U.P. Respondent :- Bachchan Khan Counsel for Appellant :- G.A. Counsel for Respondent :- Ashok Kumar Singh Bais,Anil Kumar,Ashok Kumar Singh Bais,Mashaluddin Shah Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Budhwar,J.
(Oral Judgment by Hon'ble Vikas Budhwar, J.)
1. This appeal under Section 378(3) of Criminal Procedure Code, 1973 (in short 'Cr.P.C.'), has been instituted at the behest of State of U.P. against the judgment and order dated 20.2.2019, passed by Additional District & Session Judge, Fast Track Court No. 1, Kasganj, in S.T. No. 310 of 2013 (State of U.P. Vs. Bachchan Khan), under Section 304 I.P.C. arising out of Case Crime No. 107 of 2013, Police Station. Amanpur, District Kasganj, acquitting the accused respondent.
2. The factual matrix of the case as worded in the present appeal purported to be under Section 378(3) of the Cr.P.C. are that on 27.2.2013 an FIR was lodged by the informant/complainant being Brij Kishore son of Attar Singh resident Makthara, Police Station. Amanpur, District Kasganj with an allegation that the complainant/informant along with his mother Smt. Kamlesh wife of Atar Singh as well as Chandrabhan son of Kali Charan are the resident of Police Station Sidpura, District Kasganj and on unfateful day i.e. 26.2.2013 at 4 p.m. the deceased being Atar Singh son of Deshraj witnessed stomach ache.
3. Resultantly the informant along with his mother being Smt. Kamlesh and Chandrabhan son of Kali Charan proceeded for getting the deceased treated and approached the accused Dr. Bachchan Khan son of Achchan Khan resident of Rajeev Nagar Amanpur, District Kasganj and got themselves physically present in the dispensary/shop of the accused at 5.p.m. on 26.2.2013.
4. It has been further alleged in the first information report that the accused demanded an amount of Rs.5,000/- for providing medication and treatment which was accordingly offered to the accused and thereafter the accused pierced two injections. It has further been alleged in the first information report that after administrating two injections Atar Singh son of Deshraj succumbed.
5. As per the prosecution case, the accused thereafter pushed the informant/complainant his mother and Chandrabhan out of the dispensary and along with the dead-body of the deceased, they proceeded to their village. Allegation has also been levelled that due to the negligence of the accused coupled with the fact that the accused was a quack and unqualified doctor the deceased died.
6. Consequently, the first information report was lodged as discussed above on 27.2.2013 before the Police Station, Amanpur, District Kasganj being Case Crime No.107 of 2013, under Section 302 IPC. Investigation was thereafter conducted and the criminal case was transformed into Section 304 IPC, resultantly charge sheet was also submitted under Section 304 IPC on 18.7.2013. The case was committed before sessions, the charges were read over to him, the accused pleaded innocent not guilty and claimed to be tried.
7. In order to bring home the charges, the prosecution produced the following witnesses, namely:
1.
Brij Kishore PW1
2. Smt. Kamlesh PW2
3. Chandrabhan PW3
4. Satyadev Singh PW4
5. S.I. Rajkumar Singh PW5
6. Om Prakash Singh PW6
7. Khem Karan PW7
8. Dr. Pradeep Kumar PW8 9 Ratibhan Singh PW9 10 S.I. Multan Singh PW10
8. We have heard Ms. Nand Prabha Shukla, learned A.G.A. for the State-appellant and Sri Anil Kumar, learned counsel for the sole respondent.
9. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would be required to be discussed.
10. The principles, which would govern and regulate the hearing of an appeal by this Court against an order of acquittal, passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of Tota Singh and another vs. State of Punjab, reported in (1987) 2 SCC 529, the Hon'ble Apex Court in paragraph-6 has observed as under: -
"6. The High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of PW 2 and PW 6 were either unreasonable or perverse. What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such reappreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned Sessions Judge. This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."
11. Further, in the case of Ramesh Babulal Doshi vs. State of Gujarat, reported in (1996) 9 SCC 225, in paragraph 7, the Hon'ble Apex Court observed as under:
"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above-quoted conclusions. This Court has repeatedly laid down that the mere fact that a 'view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not."
12. In the case of State of Rajesthan vs. State of Gujarat, reported in (2003) 8 SCC 180, in paragraph 7, the Hon'ble Apex Court observed as under:
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his 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 the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P.¹) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra², Ramesh Babulal Doshi v. State of Gujarat³ and Jaswant Singh v. State of Haryana."
13. In the case of State of Goa vs. Sanjay Thakran, reported in (2007) 3 SCC 755, in paragraph 15, the Hon'ble Apex Court observed as under:
"15. Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat: (SCC p. 229, para 7) "7.... This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions." and in State of Rajasthan v. Raja Ram8: (SCC pp. 186-87, para 7) -
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his 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 the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 10, Ramesh Babulal Doshi v. State of Gujarat and Jaswant Singh v. State of Haryana11"."
14. Further in the case of Chandrappa and others vs. State of Karnataka, reported in (2007) 4 S.C.C. 415, the Apex Court has observed as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as,"substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis 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.
15. In the case of Ghurey Lal vs. State of U.P., reported in (2008) 10 SCC 450, in paragraph 43 and 75, the Hon'ble Apex Court observed as under:
"43. The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor. In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly a elucidated by the Privy Council. Lord Russell writing the judgment has observed as under (at AIR p. 230): (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he b has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
The law succinctly crystallised in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of reappreciating and re-evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the d trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.
...
75. On careful analysis of the entire evidence on record, we are of the view that the reasons given by the High Court for reversing the judgment of acquittal is unsustainable and contrary to settled principles of law. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable."
16. In the case of Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), reported in (2010) 6 SCC 1, in paragraph 303(1), the Hon'ble Apex Court observed as under:
"303. Summary of our conclusions:
(1) The appellate court has all the necessary powers to re-evaluate the evidence let in before the trial court as well as the conclusions reached. It has a duty to specify the compelling and substantial reasons in case it reverses the order of acquittal passed by the trial court. In the case on hand, the High Court by adhering to all the ingredients and by giving b cogent and adequate reasons reversed the order of acquittal. ..."
17. In the case of Babu vs. State of Kerala, reported in (2010) 9 SCC 189, in paragraph 12 and 19, the Hon'ble Apex Court observed 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. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P.¹, Shambhoo Missir v. State of Bihar2, Shailendra Pratap v. State of U.P.3, Narendra Singh v. State of M.P.4, Budh Singh v. State of U.P.5, State of U.P. v. Ram Veer Singh6, S. Rama Krishna v. S. Rami Reddy7, Arulvelu v. State8, Perla Somasekhara Reddy v. State of A.P.9 and Ram Singh v. State of H.P.10).
...
19. Thus, the law on the issue can be summarised to the effect that 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 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 in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
18. In the case of Ganpat vs. State of Haryana, reported in (2010) 12 SCC 59, in paragraph 14 and 15, the Hon'ble Apex Court observed as under:
"14. The only point for consideration in these appeals is whether there is any ground for interference against the order of acquittal by the High Court. This Court has repeatedly laid down that the first appellate court and the High Court while dealing with an appeal is entitled and obliged as well to scan through and if need be reappreciate the entire evidence and arrive at a conclusion one way or the other.
15. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal: (i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.
(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (Vide Madan Lal v. State of J&K¹, Ghurey Lal v. State of U.P.2, Chandra Mohan Tiwari v. State of M.P.3 and Jaswant Singh v. State of Haryana4.)"
19. In the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, reported in (2010) 13 SCC 657, in paragraph 38, 39 and 40, the Hon'ble Apex Court observed as under:
"38. It is a well-established principle of law, consistently reiterated and followed by this Court 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 demeanour of the witnesses is the best judge of the credibility of the witnesses.
39. 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.
40. 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 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. (See Balak Ram v. State of U.P.9, Shailendra Pratap v. State of U.P.10, Budh Singh v. State of U.P.11, S. Rama Krishna v. S. Rami Reddy¹2, Arulvelu v. State 13, Ram Singh v. State of H.P.14 and Babu v. State of Kerala¹5.))"
20. In the case of State of U.P. vs. Naresh, reported in (2011) 4 SCC 324, in paragraph 33 and 34, the Hon'ble Apex Court observed as under:
"33. We are fully aware of the fact that we are entertaining the appeal against the order of acquittal. Thus, the Court has to scrutinise the facts of the case cautiously and knowing the parameters fixed by this Court in this regard.
34. Every accused is presumed to be innocent unless his 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 law in this regard is well settled 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. An appellate court must also consider whether the court below has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence or had taken into consideration evidence brought on record contrary to law? In exceptional cases, whether there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. So, in order to warrant interference by the appellate court, a finding of fact recorded by the court below must be outweighed evidence or to suffer from the vice of guilt is proved. such finding if outrageously defies logic as irrationality. [Vide Babu v. State of Keralall and Sunil Kumar Sambhudayal Gupta (Dr.)8.]"
21. In the case of State of M.P. vs. Ramesh, reported in (2011) 4 SCC 786, in paragraph 15, the Hon'ble Apex Court observed as under:
"15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."
22. The Apex Court recently in Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219, has laid down the principles for laying down the powers of appellate court in re-appreciating the evidence in a case where the State has preferred an appeal against acquittal, which read as follows:
"13. It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittl. However, if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors.
14. It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606, which reads thus:
"21.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his 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 the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not."
23. The Apex Court recently in Jafarudheen & Ors. vs. State of Kerala, JT 2022(4) SC 445 has observed as under:-
"DISCUSSION Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Precedents:
Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder: -
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, 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 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179]) "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. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )"
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of 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 of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record 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.
Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse 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:
''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 Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] 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 court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two 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 entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653], in para 5, this Court observed and held as under:
''5. It has been argued by the learned counsel 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 CrPC 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 of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 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."
N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: - "20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325 has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended 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."
21. Further in the judgment in Murugesan [Murugesan v. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction.
xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., (2017) 5 SCC 719 : (2017) 2 SCC (Cri) 653 this court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."
24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m."
24. This Court had the occasion to consider the scope and the extent of interference in the cases, wherein this Court had to delve into the issues, which gets encompassed in the proceedings, where the judgment and the order under challenge is of acquittal and this Court in Government Appeal no. 3804 of 2010, State of U.P. vs. Subedar and others, has held that it is a settled principle of law that while exercising powers even if at two reasonable views/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.
25. Undisputedly, as per the prosecution case, the deceased suffered stomach ache at 4 p.m. on 26.2.2013 and he was taken for medication on same day on 26.2.2013 by the informant/complainant, his mother and one Chandrabhan and was administered two injections on 26.2.2013 at 5.00 p.m. and thereafter he died. It has also come on record that the first information report was lodged on 27.2.2013. In order to bring home the charges, the prosecution presented as many as 10 witnesses.
26. In order to link the chain of events and sequence so as to decide as to whether the accused is guilty or not the ocular testimony is to be first analysed. According to the testimony of PW1 being the informant/complainant, who happens to be Brij Kishore son of deceased, he had taken his father on 26.2.2013 at 4.00 p.m. in the cycle which the complainant was riding. To be more specific, the deceased was sitting in the carrier of the cycle in question and further the fact that though the deceased was witnessing stomach ache but he was not screaming on account of the lesser magnitude of the stomach ache.
27. As per the PW1 Brij Kishore, he never knew the accused and till reaching the clinic of the accused PW1 Brij Kishore did not find any clinic over there. It has been further deposed that the concerned police station is just 50 steps from the clinic of the accused. In the cross-examination the PW1 Brij Kishore has further deposed that he did not lodge FIR in the concerned police station which was 50 steps from the clinic of the accused as his mother instructed him to go to the village. PW1 in the statement has also come up with the stand that in the Panchnama so prepared, he had signed the same and about 6 to 7 persons had also signed and their names are Chandrabhan, Bantu, Ratibhan, Padam Singh, Bharatveer Singh, Nekram Singh.
28. PW2 being Kamlesh, who happens to be wife of the deceased in her statement has deposed that she had gone at 4.00 p.m. on 26.2.2013 along with his son, Chandrabhan and Kunwarpal, who happens to be the resident of the said village and the they reached the dispensary of the accused at 5.00 p.m. It has further been deposed in cross-examination that the deceased had gone to accused dispensary while sitting in a motorcycle which Chandrabhan was riding.
29. PW3, who happens to be the Chandrabhan son of Kalicharan in his statement has deposed that on 26.2.2013 at 5.00 p.m., they had reached the accused dispensary and the FIR was lodged on 27.2.2013.
30. PW4, who happens to be S.H.O. Police Station Amanpur, being Satyadev Singh he in his statement has come up with a stand that the proceedings for obtaining Viscera report was undertaken and as per the Viscera report no poison was found in the body of the deceased.
31. As PW5, S.I. Rajkumar Singh got himself presented wherein in paragraph 3 of the same, it has been deposed that after 10-12 hours of the death of the deceased, the first information report was lodged.
32. PW6 being Om Prakash S.O. got himself examined.
33. PW7 Khemkaran S.O. also got himself examined. Dr. Pradeep Kumar Senior Consultant B.B.D., District Hospital, Bulandshahr got himself examined and he stated that there was no chemical/poison found in the body of the deceased.
34. PW9 being Ratibhan Singh son of Surajpal Singh, he in his cross-examination has stated that he had not witnessed the alleged commission of crime and he was in his house.
35. PW10 S.I. Multan Singh in his statement has deposed that no visible injury was found in the body of the deceased.
36. In the light of the depositions of the prosecution witness coupled with the medico legal report and the proposition of law so culled out by the Hon. Apex Court, the present case is to be decided.
37. To start with the material contradictions in the statements of the prosecution witnesses is to be first analysed. In the statement of the PW1 being son of the deceased Brij Kishore, this much has come that he had taken his father to the accused dispensary in his cycle and the deceased was sitting in the carrier of the cycle of the PW1 Brij Kishore, as well as so far as the statement of the PW2 being Smt. Kamlesh widow of the deceased, she in the cross-examination has come up with a stand that the deceased was siting in the motorcycle of Chandrabhan.
38. A remarkable thing which is noticed at this stage is this that PW1 and PW2 are those witnesses, who have taken the deceased and thus the material contradiction itself shows that the prosecution case proceeded on a very weak evidence.
39. So much so another aspect which needs to be further noticed is the delay in lodging of the FIR. It is come on record that the dispensary of the accused was just 50 steps from the police station however, as stated in the cross-examination on a question being put up to the PW1 Brij Kishore, has deposed that he did not lodged FIR on 26.2.2013 on the instructions of his mother as the mother of PW1 wanted that the dead body of the deceased be taken to the village and consequently on 27.2.2013 FIR was lodged.
40. It is quiet paradoxical and amazing that when as per the prosecution case the deceased was suffering from mild stomach ache and he was not screaming and after injecting two doses of injection, the deceased died and the police station is just 50 steps from the dispensary of the accused then how and why the FIR was not lodged on the same day and it was lodged on the next day. The said conduct of the informant/complainant being PW1 and the mother/widow of the deceased PW2 itself shows that the entire criminal case has been engineered just to falsely implicate the accused.
41. Hon'ble Apex Court on the question of delay in lodging the FIR and its impact upon the prosecution theory has observed in the case of (1973) 3 SCC 114 Apren Joseph Alias Current Kunjukunju and others Vs. The State of Kerala wherein para 11 following was mandated:
11. Now first information report is a report relating to the commission of an offence given to the police and recorded by it under Section 154, Cr. P. C. As observed by the Privy Council in K. E. v. Khwaja, the receipt and recording of information report by the police is not a condition precedent to the setting in motion of a criminal investigation. Nor does the statute provide that such information report can only be made by an eye witness. First information report under Section 154 is not even considered a substantive piece of evidence. It can only be used to corroborate or contradict the informant's evidence in court. But this information when recorded is the basis of the case set up by the informant. It is very useful if recorded before there is time and opportunity to embellish or before the informant's memory fades. Undue unreasonable delay in lodging the F. I. R., therefore, inevitably gives rise to suspicion which puts the court on guard to look for the possible motive and the explanation for the delay and consider its effect on the trustworthiness or otherwise of the prosecution version. In our opinion, no duration of time in the abstract can be fixed as reasonable for giving information of a crime to the police, the question of reasonable time being a matter for determination by the court in each case. Mere delay in lodging the first information report with the police is, therefore, not necessarily, as a matter of law, fatal to the prosecution. The effect of delay in doing so in the light of the plausibility of the explanation forthcoming for such delay accordingly must fall for consideration on all the facts and circumstances of a given case.
42. In the case of Tara Singh and others Vs. State of Punjab 1991 Supp (1) SCC 536, the Hon'ble Apex Court in paragraph 4 has observed as under:-
4. It is well settled that the delay in giving the FIR by itself cannot be a ground to doubt the prosecution case. Knowing the Indian conditions as they are we cannot expect these villagers to rush to the police station immediately after the occurrence. Human nature as it is, the kith and kin who have witnessed the occurrence cannot be expected to act mechanically with all the promptitude in giving the report to the police. At times being grief-stricken because of the calamity it may not immediately occur to them that they should give a report. After all it is but natural in these circumstances for them to take some time to go to the police station for giving the report. Of course the Supreme Court as well as the High Courts have pointed out that in cases arising out of acute factions there is a tendency to implicate persons belonging to the opposite faction falsely. In order to avert the danger of convicting such innocent persons the courts are cautioned to scrutinise the evidence of such interested witnesses with greater care and caution and separate grain from the chaff after subjecting the evidence to a closer scrutiny and in doing so the contents of the FIR also will have to be scrutinised carefully. However, unless there are indications of fabrication, the court cannot reject the prosecution version as given in the FIR and later substantiated by the evidence merely on the ground of delay. These are all matters for appreciation and much depends on the facts and circumstances of each case.
43. Yet, in the case of P. Rajagopal and others Vs. State of Tamil Nadu (2019) 5 SCC 403, the Hon'ble Apex Court in paragraph 12 has held as under:-
12. Normally, the Court may reject the case of the prosecution in case of inordinate delay in lodging the first information report because of the possibility of concoction of evidence by the prosecution. However, if the delay is satisfactorily explained, the Court will decide the matter on merits without giving much importance to such delay. The Court is duty-bound to determine whether the explanation afforded is plausible enough given the facts and circumstances of the case. The delay may be condoned if the complainant appears to be reliable and without any motive for implicating the accused falsely.
44. As per proposition of law so culled out by the Hon'ble Apex Court in the above noted decisions and in series of decision, it has been mandated that the delay in lodging of the FIR by itself cannot be a ground to doubt the prosecution case. However, the courts have to determine as to whether the delay has been satisfactorily explained or not and deciding the matters on merits without giving much importance to such delay.
45. Here in the present case, the Court finds that no plausible explanation has been offered by the prosecution in not lodging the FIR on 26.2.2013 particularly when the police station was 50 steps from the dispensary/shop of the accused. This Court has also discussed the determining of the witnesses and had also considered the case from the four corners of law while applying the same in the facts of the case.
46. Now another question arises as to at what time the body of the deceased was reached in the village in question. As per PW7 Khemkaran son of Ram Singh the deceased body reached the village at 4.00 p.m. on 26.2.2013 when he was in the village itself and he got himself physically present at 6.00 p.m. in this regard. However, as per the prosecution case at 4.00 p.m. on 26.2.2013 the deceased proceeded for treatment and the treatment was administered at 5.00 p.m. on the same day i.e. 26.2.2013 then how could the body of the deceased reached the village at 4.00 p.m. The said aspect of the matter has already been discussed by the learned trial court while according to acquittal to the accused.
47. As per the prosecution case PW1 being Brij Kishore has stated that the Panchnama was signd 6-7 people whose names are (a) Chandrabhan (b) Bantu (c) Ratiram (d) Padam Singh (e) Bharatveer Singh (f) Nekram Singh. However in the Panchnama itself the signatures were found of Khemkaran, Om Prakash, Suresh and Charan Singh and Munna.
48. Learned Trial Court has meticulously analysed the said aspect of the matter and has proceeded to record a finding that no explanation worth consideration has been tendered by the prosecution with respect to the signatures so finding its presence in the Panchanama itself vis the differ in the statement of PW1.
49. This Court is of the opinion that the entire basis of the prosecution case itself shows that the same had been manufactured so as to lay foundation whose substratum has eroded.
50. Nonetheless the medical report which obviously includes Viscera report also does not support the case of the prosecution as the Viscera report itself shows that there was no chemical/poison found in the body of the deceased. It has also come on record that the heart of the deceased was also not put to examination which could place the things on a platform wherein it could be determined as to whether the deceased died on account of heart-attack or not. It has also come on record that PW2 being the widow of the deceased has herself stated in page 3 of her statement that Chandrabhan and PW1 who happens to be the son have not seeing shop/clinic of the accused. Moreover this Court further finds that no proceedings purported to be under either Medical Council Act or the Rule framed therein under or any other Special Act has been lodged or undertaken against the accused herein for practicing medical provision as a quake. In the absence of the same, this Court is not in a position to bestow any consideration on the said aspect also.
51. The chain of the events do not link the accused with respect to the commission of the crime and further the evidence so adduced by the prosecution is very weak. This Court also finds that there are insufficient grounds making it possible to convict the accused. The chain of the events as discussed herein-above are not complete in order to rope in and hold the accused guilty.
52. The facts of the present case are to be seen in the light that there is a double presumption in favour of the accused and until and unless there are sufficient ground and material available before the Appellate Court to reverse the judgment of the trial court this Court will not initiate. This Court while deciding the case in which adorning the chair of appellate authority cannot reverse the judgment of acquittal even in those cases where another view is possible.
53. Nonetheless, this Court finds that the prosecution as miserably failed to link the chain of events and sequence so as to hold that the accused was guilty in commission of the crime in question. The Court further finds that there is no perversity or illegality committed by the court below while acquitting the accused.
54. Hence in any view of the matter while applying the principles of law so culled out by the Hon. Apex Court in the facts of the present case, we have no option but to concur with the view taken by the learned Sessions Judge.
55. We find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
56. Since the application for granting leave to appeal has not been granted, consequently, present criminal appeal also stands dismissed.
57. All the applications stand disposed of.
58. The records be sent back to the court-below.
(Vikas Budhwar, J.) (Vivek Kumar Birla,J.)
Order Date :- 7.7.2022
piyush