Supreme Court - Daily Orders
Dharamveer @ Leelaram vs State Of Rajasthan on 20 May, 2014
4b 1
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 1936 OF 2009
Dharamveer @ Leelaram Appellant
VERSUS
State of Rajasthan Respondent
WITH
CRIMINAL APPEAL NO. 244/2010
CRIMINAL APPEAL NO. D5431/2010
O R D E R
Delay condoned.
The appellants faced trial for the offences under Sections 395 and 398 of the I.P.C. and under Sections 3 and 25 of the Arms Act in Session Case No. 19 of 2004 before the learned Additional Sessions Judge, Khetri (Rajasthan) on the allegation that on 3.12.2001 about 9.30 p.m. near village Tumoli they stopped a car and showing a "katta" to the driver, took away cash and ornaments from the family members of the informant, Brahamdutta. After an FIR was lodged, the criminal law was set in motion and in the course of investigation, six accused persons, namely, Dharambir, Dharmendra, Mukhram, Mahipal, Sukhvinder @ Bintu and Girvar Singh @ Gillu were arrested. After the arrest, the Test Identification Parade (TIP) was 2 held by the learned Magistrate, PW-15, Madhusudhan Sharma. The Investigating Agency, after completing the investigation placed the charge sheet before the competent court, which in turn committed the matter to the Court of Session.
The accused persons pleaded not guilty and took a further stand of false implication.
The prosecution, to bring home the charges, examined 15 witnesses and brought on record number of documents and marked them as exhibits. The learned Trial Judge, appreciating the evidence on record, came to hold that the prosecution had not been able to prove the case beyond reasonable doubt inasmuch as
(i) Brahmdutt, the informant, has not been examined by the prosecution and no explanation has been offered;
(ii) that the recovery at the instance of the accused persons could not have been treated to be proved as there are number of doubting circumstances and all the witnesses in that regard had not supported the factum of seizure; (iii) some of the accused persons were not identified in the TIP and (iv) the evidence of the principal witnesses, namely, Jagan, the driver (PW-12) and Kritika (PW-13), sister of the informant, were not worthy of credence. Being of this view, it recorded an acquittal, acquitting the accused persons. 3
The State of Rajasthan assailed the judgment of acquittal in Criminal Appeal No. 212 of 2007 and the High Court, by the impugned judgment dated 22.09.2008, after narrating the facts and taking note of the submissions, has held as follows:
"Having gone through the impugned judgment dated 21.5.2004 passed by the trial court, I find that the trial court has not critically gone through the evidence of PW12 Jagan Singh and PW14 Kritika and erred in acquitting the accused respondents for the afore-mentioned offences. Recovery of ’desi-katta and Kartoos’ has been made from accused respondent Girvar Singh, which is Chand.
PW12 Jagan Singh and PW13 Kritika, who were sole and star witnesses of the occurrence, affirmed the contents of the F.I.R. The recovery of desi katta with kartoos and statements of PW12 Jagan Singh, PW13 Kritika and other witnesses along-with F.I.R. Clearly reveal that all the accused respondents were present at the time of commission of the offence.
The prosecution case is very well proved against all the accused respondents beyond all reasonable doubts that all the accused respondents have actively participated in the robbery."
After so recording, the learned Single Judge proceeded to impose the sentences for the respective offences.
Criticising the judgment of reversal and recording conviction, Ms. Abha R. Sharma, learned counsel for the appellant in all appeals submitted 4 that as the reasoning of the High Court would show, it is absolutely cryptic and, in fact, there has been no re-appreciation of the evidence on record before overturning the judgment of acquittal. It is her further submission that the view expressed by the Trial Judge was a plausible one and, therefore, there was no justification on the part of the High Court to reverse the same. Learned counsel would contend that on a careful scrutiny of the evidence, it is clear as crystal that the witnesses had miserably failed to identify the accused persons and further the factum of recovery has not been proven.
Ms. Ruchi Kohli and Mr. Irshad Ahmad, learned counsel for the State in all the appeals have supported the judgment of the High Court.
Before we proceed to deal with the rival contentions put forth by the learned counsel for the parties, we may usefully state the principle which is to be borne in mind by the appellate court while dealing with the judgment of acquittal.
In Muralidhar @ Gidda & Anr. Vs. State of Karnataka (2014) 4 SCALE 693, after placing reliance on various authorities, held as follows: 5
"...... Suffice it to say that this Court has consistently held that in dealing with appeals against acquittal, the appellate court must bear in mind the following: (i) There is presumption of innocence in favour of an accused person and such presumption is strengthened by the order of acquittal passed in his favour by the trial court,
(ii) The accused person is entitled to the benefit of reasonable doubt when it deals with the merit of the appeal against acquittal, (iii) Though, the power of the appellate court in considering the appeals against acquittal are as extensive as its powers in appeals against convictions but the appellate court is generally loath in disturbing the finding of fact recorded by the trial court. It is so because the trial court had an advantage of seeing the demeanor of the witnesses. If the trial court takes a reasonable view of the facts of the case, interference by the appellate court with the judgment of acquittal is not justified. Unless, the conclusions reached by the trial court are palpably wrong or based on erroneous view of the law or if such conclusions are allowed to stand, they are likely to result in grave injustice, the reluctance on the part of the appellate court in interfering with such conclusions is fully justified, and (iv) Merely because the appellate court on re-appreciation and re-evaluation of the evidence is inclined to take a different view, interference with the judgment of acquittal is not justified if the view taken by the trial court is a possible view. The evenly balanced views of the evidence must not result in the interference by the appellate court in the judgment of the trial court.
Keeping the aforesaid principle in view, we have independently appreciated the evidence on record. On a careful scrutiny of Exhibit P-32, the report of TIP, it is evident that the accused Dharamveer was not identified. The TIP was also not held for certain accused persons. Mr. Brahmdutt, who was the 6 informant, was not examined and no explanation whatsoever has been offerred. He was one of the witnesses, who had participated in the the TIP and from whose custody money was snatched and it was he who had witnessed the whole occurrence. That apart, Kritika, PW13, in court has deposed that she was not in a position to identify the accused persons. Jagan Singh, driver of the taxi, is also not very clear while deposing about the identification in court. Under these circumstances, it is difficult to hold that identification and recovery have been proven.
The High Court has not discussed these aspects and, in fact, as we find, has accepted the TIP wherein accused were identified by Brahmdutt, though he has not been examined. The appellate court has also not discussed with regard to the lacuna in the recovery. In our considered view, it was not a case where the High Court should have exercised its appellate jurisdiction for reversing the judgment of acquittal to that of conviction.
Consequently, all the appeals are allowed, the judgment of conviction and order of sentence imposed by the High Court are set aside. As the appellant- Dharmendra is on bail, he be discharged of his bail bonds. The other two appellants, namely, Mukharam and 7 Dharamveer are in custody, and accordingly it is directed that they be released forthwith, unless they are required to be detained in connection with any other case.
At this juncture, learned counsel for the appellants has submitted that other three convicts, namely, Mahipal, Sukhvinder @ Bintu and Girvar Singh @ Gillu are similarly placed, and hence, the benefit of acquittal should be extended to them. The said submission is absolutely correct and accordingly, we also set aside the conviction and sentence imposed by the High Court in respect of them and direct that if they are not required to be detained in custody in any other case, they be set at liberty forthwith.
........................J. (DIPAK MISRA) ........................J. (N.V. RAMANA) NEW DELHI MAY 20, 2014 8 ITEM NO.101 COURT NO.5 SECTION II S U P R E M E C O U R T O F I N D I A RECORD OF PROCEEDINGS CRIMINAL APPEAL NO(s). 1936 OF 2009 DHARAMVEER @ LEELARAM Appellant (s) VERSUS STATE OF RAJASTHAN Respondent(s) (With appln(s) for bail) WITH APPEAL(CRL) NO. 244 of 2010 (With office report) APPEAL(CRL) D NO. D5431 of 2010 (With appln(s) for c/delay in filing crl. Appeal and office report) Date: 20/05/2014 These Appeals were called on for hearing today. CORAM :
HON’BLE MR. JUSTICE DIPAK MISRA HON’BLE MR. JUSTICE N.V. RAMANA (VACATION BENCH) For Appellant(s) Ms. Abha R. Sharma, Adv.
For Respondent(s) Ms. Ruchi Kohli, Adv.
Mr. Shiv Mangal Sharma, AAG
Mr. Akshat Anand, Adv.
Ms. Vidushi Chokhani, Adv.
Ms. Nidhi Jaswal, Adv.
Mr. Irshad Ahmad, Adv.
UPON hearing counsel the Court made the following O R D E R Appeals are allowed in terms of the signed order.
(NAVEEN KUMAR) (RENUKA SADANA) COURT MASTER COURT MASTER
(Signed order is placed on the file)