Himachal Pradesh High Court
State Of H.P vs Puneet Goyal on 21 November, 2018
Author: Tarlok Singh Chauhan
Bench: Tarlok Singh Chauhan
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA.
Cr. Appeal No. 346 of 2007
Reserved on : 16.11.2018
.
Decided on: 21.11.2018.
State of H.P. ...Appellant.
Versus
Puneet Goyal ...Respondent.
_________________________________________________________________
Coram:
Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge.
Whether approved for reporting? 1 No.
For the Appellant : Mr. Vinod Thakur and Mr. Sudhir
Bhatnagar, Addl. A.Gs. with Mr.
r Bhupinder Thakur and Ms. Svaneel
Jaswal, Dy. A.Gs.
For the Respondent : Mr. Peeyush Verma, Advocate.
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Justice Tarlok Singh Chauhan, Judge
Aggrieved and dis-satisfied with the judgment
passed by the learned Judicial Magistrate, IInd Class, Court No.
VI, Shimla, whereby the respondent came to be acquitted of the
offence under Section 324 of the IPC, the State has filed the
instant appeal.
2. Brief facts giving rise to the prosecution case are
that on 24.02.2006 at about 8:00 p.m., respondent voluntarily
caused hurt to one Sanjay Taneja by means of knife.
3. After completion of the investigation, the respondent
was made to stand trial for the aforesaid offence.
1
Whether reporters of the local papers may be allowed to see the judgment? yes
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4. The prosecution in order to prove its case examined
as many as seven witnesses and thereafter closed its evidence.
.
Upon closure of the prosecution evidence, statement of
respondent was recorded under Section 313 Cr.P.C. in which he
claimed himself to be innocent and further claimed that he had
been falsely implicated. However, he did not lead any evidence
in his defence.
5. Learned trial Court after evaluating the evidence,
acquitted the respondent as aforesaid, constraining the State to
file the instant appeal.
6. It is vehemently argued by Mr. Vinod Thakur, learned
Additional Advocate General that the findings recorded by the
learned Court below are contrary to the record, therefore, liable
to be set aside.
7. On the other hand, Mr. Peeyush Verma, Advocate,
would vehemently argue that the respondent is innocent and
has, therefore, rightly been acquitted by the learned Court
below.
I have heard learned counsel for the parties and
have gone through the records of the case.
8. At the outset, it would be necessary to deal with the
ambit and scope of the powers of the appellate Court in dealing
with an appeal against acquittal and the law on the subject has
been succinctly dealt with by the Hon'ble Supreme Court in
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Ghurey Lal vs. State of U.P. 2008 (10) SCC 450, wherein
after taking into consideration all the previous precedence
.
summed up the legal position as under:-
43. The earliest case that dealt with the controversy in issue
was Sheo Swarup v. King Emperor AIR 1934 PC 227. In this
case, the ambit and scope of the powers of the appellate
court in dealing with an appeal against acquittal has been
aptly elucidated by the Privy Council. Lord Russell writing
the judgment has observed as under: (at p. 230):
"...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
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 crystallized 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 re-
appreciating and re- evaluating the entire evidence but it
would be justified in interfering with the judgment of
acquittal only when the judgment of the 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.
44. This Court again in the case of Surajpal Singh and Ors. v.
State AIR 1952 SC 52, has spelt out the powers of the High
Court. The Court has also cautioned the Appellate Courts to
follow well established norms while dealing with appeals
from acquittal by the trial court. The Court observed as
under:
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"7. It is well established that in an appeal under Section
417 Criminal P.C., the High Court has full power to review
the evidence upon which the order of acquittal was
founded, but it is equally well-settled that the
presumption of innocence of the accused was further
.
reinforced by his acquittal by the trial court, and the
findings of the trial court which had the advantage of
seeing the witnesses and hearing their evidence can be
reversed only for very
substantial and compelling reasons."
This Court reiterated the principles and observed that
presumption of innocence of accused is reinforced by an
order of the acquittal. The appellate court could have
interfered only for very substantial and compelling
reasons.
45. In Tulsiram Kanu v. State AIR 1954 SC 1, this Court
explicated that the appellate court would be justified in
reversing the acquittal only when very substantial question
and compelling reasons are present. In this case, the Court
used a different phrase to describe the approach of an
appellate court against an order of acquittal. There, the
Sessions Court expressed that there was clearly reasonable
doubt in respect of the guilt of the accused on the evidence
put before it. Kania, C.J., observed that it required good and
sufficiently cogent reasons to overcome such reasonable
doubt before the appellate court came to a different
conclusion.
46. In the same year, this Court had an occasion to deal with
Madan Mohan Singh v. State of Uttar Pradesh AIR 1954 SC
637, wherein it said that the High Court had not kept the
rules and principles of administration of criminal justice
clearly before it and that therefore the judgment was
vitiated by non-advertence to and mis-appreciation of
various material facts transpiring in evidence. The High
Court failed to give due weight and consideration to the
findings upon which the trial court based its decision.
47. The same principle has been followed in Atley v. State of
U.P. AIR 1955 SC 807, wherein the Court said:
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"5....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."
48. The question was again raised prominently in Aher Raja
Khima v. State of Saurashtra AIR 1956 SC 217. Bose, J.
expressing the majority view observed (at p.220):
"1....It is, in our opinion, well settled that it is not enough for the High Court to take a different view of the evidence; there must also be substantial and compelling reasons for holding that the trial court was wrong; Ajmer Singh v. State of Punjab AIR 1953 SC 76; and if the trial Court takes a reasonable view of the facts of the case, interference under Section 417 is not justifiable unless there are really strong reasons for reversing that view.
49. In Balbir Singh v. State of Punjab AIR 1957 SC 216, this Court again had an occasion to examine the same proposition of law. The Court observed as under:
"12.....It is now well settled that though the High Court has full power to review the evidence upon which an order of acquittal is founded, it is equally well settled that the presumption of innocence of the accused person is further reinforced by his acquittal by the trial Court and the views of the trial Judge as to the credibility of the witnesses must be given proper weight and consideration; and 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 must also be kept in mind, and there must be substantial and compelling ::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 6 reasons for the appellate Court to come to a conclusion different from that of the trial Judge."
50. A Constitution Bench of this Court in M.G. Agarwal v.
.
State of Maharashtra AIR 1963 SC 200, observed as under:
There is no doubt that the power conferred by Clause (a) which deals with an appeal against an order of acquittal is as wide as the power conferred by Clause (b) which deals with an appeal against an order of conviction, and so, it is obvious that the High Court s powers in dealing with criminal appeals are equally wide whether the appeal in question is one against acquittal or against conviction. That is one aspect of the question. The other aspect of the question centres round the approach which the High Court adopts in dealing with appeals against orders of acquittal. In dealing with such appeals, the High Court naturally bears in mind the presumption of innocence in favour of an accused person and cannot lose sight of the fact that the said presumption is strengthened by the order of acquittal passed in his favour by the trial Court and so, the fact that the accused person is entitled for the benefit of a reasonable doubt will always be present in the mind of the High Court when it deals with the merits of the case. As an appellate Court the High Court is generally slow in disturbing the finding of fact recorded by the trial Court, particularly when the said finding is based on an appreciation of oral evidence because the trial Court has the advantage of watching the demeanour of the witnesses who have given evidence. Thus, though the powers of the High Court in dealing with an appeal against acquittal are as wide as those which it has in dealing with an appeal against conviction, in dealing with the former class of appeals, its approach is governed by the overriding consideration flowing from the presumption of innocence....
The test suggested by the expression "substantial and compelling reasons" should not be construed as a formula which has to be rigidly applied in every case, and so, it is not necessary that before reversing a judgment of acquittal, the High Court must necessarily characterize the findings recorded therein as perverse.
The question which the Supreme Court has to ask itself, in appeals against conviction by the High Court in such a case, is whether on the material produced by the prosecution, the High Court was justified in reaching the conclusion that the prosecution case against the appellants had been proved beyond a reasonable doubt, and that the contrary view taken by the trial Court was erroneous. In answering this question, the Supreme Court ::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 7 would,no doubt, consider the salient and broad features of the evidence in order to appreciate the grievance made by the appellants against the conclusions of the High Court.
.
51. In Noor Khan v. State of Rajasthan AIR 1964 SC 286, this Court relied on the principles of law enunciated by the Privy Council in Sheo Swarup (supra) and observed thus:
"Sections 417, 418 and 423 give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, 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 not weakened by the fact that he 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."
52. In Khedu Mohton and Ors. v. State of Bihar 1970 (2) SC 450, this Court gave the appellate court broad guidelines as to when it could properly disturb an acquittal. The Court observedas under:
"3. It is true that the powers of the High Court in considering the evidence on record in appeals under Section 417, Cr. P.C. are as extensive as its powers in appeals against convictions but that court at the same time should bear in mind the presumption of- innocence of accused persons which presumption is not weakened by their acquittal. It must also bear in mind the fact that the appellate judge had found them not guilty. Unless the conclusions reached by him are palpably wrong or based on erroneous view of the law or that his decision is likely to result in grave injustice, the High Court should be reluctant to interfere with his conclusions. If two reasonable conclusions can be reached on the basis of the evidence on record then the view in support of the acquittal of the accused should be preferred. The fact that the High Court is inclined to take a different view of the evidence on record is not sufficient to interfere with the order of acquittal.
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53. In Shivaji Sahabrao Bobade and Anr. v. State of Maharashtra 1973 (2) SCC 793, the Court observed thus:
.
"5...An appellant aggrieved by the overturning of his acquittal deserves the final court s deeper concern on fundamental principles of criminal justice....But we hasten to add even here that, although the learned judges of the High Court have not expressly stated so, they have been at pains to dwell at length on all the points relied on by the trial court as favourable to the prisoners for the good reason that they wanted to be satisfied in their conscience whether there was credible testimony warranting, on a fair consideration, a reversal of the acquittal registered by the court below. In law there are no fetters on the plenary power of the Appellate Court to review the whole evidence on which the order of acquittal is founded and, indeed, it has a duty to scrutinise the probative material de novo, informed, however, by the weighty thought that the rebuttable innocence attributed to the accused having been converted into an acquittal the homage our jurisprudence owes to individual liberty constrains the higher court not to upset the holding without very convincing reasons and comprehensive consideration, In our view the High Court s judgment survives this exacting standard.
54. In Lekha Yadav v. State of Bihar 1973 (2) SCC 424, the Court following the case of Sheo Swarup (supra) again reiterated the legal position as under:
"6......'3.... The different phraseology used in the judgments of this Court such as-
(a) substantial and compelling reasons:
(b) good and sufficiently cogent reasons;
(c) strong reasons.
are not intended to curtail the undoubted power of an appellate court in an appeal against acquittal to review the entire evidence and to come to its own conclusion, but in doing so it should not only consider every matter on record having a bearing on the questions of fact and the reasons given by the court below in support of its order of acquittal but should express the reasons in its judgment which led it to hold that the acquittal was not justified.
::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 955. In Khem Karan and Ors. v. State of U.P. and Anr. 1974 (4) SCC 603, this Court observed:
.
"5...Neither mere possibilities nor remote possibilities nor mere doubts which are not reasonable can, without danger to the administration of justice, be the foundation of the acquittal of an accused person, if there is otherwise fairly credible testimony.
56. In Bishan Singh and Ors. v. State of Punjab 1973 (3) SCC 288, Justice Khanna speaking for the Court provided the legal position:
"22. It is well settled that the High Court in appeal under Section 417 of the CrPC has full power to review at large the evidence on which the order of acquittal was founded and to reach the conclusion that upon the evidence the order of acquittal should be reversed. No limitation should be placed upon that power unless is be found expressly stated be in the Code, but in exercising the power conferred by the Code and before reaching its conclusion upon fact the High Court should 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 has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; & (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.
57. In Umedbhai Jadavbhai v. State of Gujarat 1978 (1) SCC 228, the Court observed thus:
"6. In an appeal against acquittal, the High Court would not ordinarily interferewith the Trial Court's conclusion unless there are compelling reasons to do so inter alia on account of manifest errors of law or of fact resulting in miscarriage of justice."
58. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355, the Court observed thus:
It stems out of the fundamental principle of our criminal jurisprudence that the accused is entitled to the benefit of ::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 10 any reasonable doubt. If two reasonably probable and evenly balanced views of the evidence are possible, one must necessarily concede the existence of a reasonable doubt. But, fanciful and remote possibilities must be left out of account. To entitle an accused person to the .
benefit of a doubt arising from the possibility of a duality of views, the possible view in favour of the accused must be as nearly reasonably probable as that against him. If the preponderance of probability is all one way, a bare possibility of another view will not entitle the accused to claim the benefit of any doubt. It is, therefore, essential that any view of the evidence in favour of the accused must be reasonable even as any doubt, the benefit of which an accused person may claim, must be reasonable.
"A reasonable doubt", it has been remarked, "does not mean some light, airy, insubstantial doubt that may flit through the minds of any of us about almost anything at some time or other, it does not mean a doubt begotten by sympathy out of reluctance to convict; it means a real doubt, a doubt founded upon reasons. [Salmond J. in his charge to the jury in R.V. Fantle reported in 1959 Criminal Law Review 584.] {emphasis supplied}
59. In Tota Singh and Anr. v. State of Punjab 1987 (2) SCC 529, the Court reiterated the same principle in the following words:
"This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a re-appreciation 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 nointerference 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.
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60. In Ram Kumar v. State of Haryana 1995 Supp. (1) SCC 248, this Court had another occasion to deal with a case where the court dealt with the powers of the High Court in .
appeal from acquittal. The Court observed as under:
"15...the High Court should not have interfered with the order of acquittal merely because another view on an appraisal of the evidence on record was possible. In this connection it may be pointed out that the powers of the High Court in an appeal from order of acquittal to reassess the evidence and reach its own conclusions under Sections 378 and 379 (sic 386) CrPC are as extensive as in any appeal against the order of conviction. But as a rule of prudence, it is desirable that the High Court should give proper weight and consideration to the view of the trial court with regard to the credibility of the witness, the presumption of innocence in favour of the accused, the right of accused to the benefit of any doubt and the slowness of appellate court in justifying a finding of fact arrived at by a judge who had the advantage of of seeing the witness. No doubt it is settled law that if the main grounds on which the Court below has based its order acquitting the accused, are reasonable and plausible, and the same cannot entirely and effectively be dislodged or demolished, the High Court should not disturb the order of acquittal. We shall, therefore, examine the evidence and the material on record to see whether the conclusions recorded by the Trial Court in acquitting the appellant are reasonable and plausible or the same are vitiated by some manifest illegality or the conclusion recorded by the Trial Court are such which could not have been possibly arrived at by any Court acting reasonably and judiciously which may in other words be characterized as perverse.
61. This Court time and again has provided direction as to when the High Courts should interfere with an acquittal. In Madan Lal v. State of J&K 1997 (7) SCC 677, the Court observed as under:
"8. ...that there must be "sufficient and compelling reasons" or "good and sufficiently cogent reasons" for the appellate court to alter an order of acquittal to one of conviction...."::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 12
62. In Sambasivan and Ors. v. State of Kerala 1998 (5) SCC 412, while relying on the case of Ramesh Babulal Doshi (Supra), the Court observed thus:
.
"7. The principles with regard to the scope of the powers of the appellate court in an appeal against acquittal, are well settled. The powers of the appellate court in an appeal against acquittal are no less than in an appeal against conviction. But where on the basis of evidence on record two views are reasonably possible the appellate court cannot substitute its view in the place of that of the trial court. It is only when the approach of the trial court in acquitting an accused is found to be clearly erroneous in its consideration of evidence on record and in deducing conclusions therefrom that the appellate court can interfere with the order of acquittal.
63. In Bhagwan Singh and Ors. v. State of M.P. 2002 (4) SCC 85, the Court repeated one of the fundamental principles of criminal jurisprudence 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 Court observed as under:
"7. The golden thread which runs through the web of administration of justice in criminal case 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. Such is not a jurisdiction limitation on the appellate court but a Judge madeguidelines for circumspection. The paramount consideration of the court is to ensure that miscarriage of justice is avoided.
64. In Harijana Thirupala and Ors. v. Public Prosecutor, High Court of A.P., 2002 (6) SCC 470, this Court again had an occasion to deal with the settled principles of law restated by several decisions of this Court. Despite a number of judgments, High Courts continue to fail to keep them in mind before reaching a conclusion. The Court observed thus:
::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 13"10. The principles to be kept in mind in our system of administration of criminal justice are stated and restated in several decisions of this Court. Yet, sometimes High Courts fail to keep them in mind before reaching a conclusion as to the guilt or otherwise of the accused in a .
given case. The case on hand is one such case. Hence it is felt necessary to remind about the well-settled principles again. It is desirable and useful to remind and keep in mind these principles in deciding a case.
11. In our administration of criminal justice an accused is presumed to be innocent unless such a presumption is rebutted by the prosecution by producing the evidence to show him to be guilty of the offence with which he is charged. Further if two views are possible on the evidence produced in the case, one indicating to the guilt of the accused and the other to his innocence, the view favourable to the accused is to be accepted. In cases where the court entertains reasonable doubt regarding the guilt of the accused the benefit of such doubt should go in favour of the accused. At the same time, the court must not reject the evidence of the prosecution taking it as false, untrustworthy or unreliable on fanciful grounds or on the basis of conjectures and surmises. The case of the prosecution must be judged as a whole having regard to the totality of the evidence. In appreciating the evidence the approach of the court must be integrated not truncated or isolated. In other words, the impact of the evidence in totality on the prosecution case or innocence of the accused has to be kept in mind in coming to the conclusion as to the guilt or otherwise of the accused. In reaching a conclusion about the guilt of the accused, the court has to appreciate, analyse and assess the evidence placed before it by the yardstick of probabilities, its intrinsic value and the animus of witnesses. It must be added that ultimately and finally the decision in every case depends upon the facts of each case.
12. Doubtless the High Court in appeal either against an order of acquittal or conviction as a court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with the order of acquittal merely because it feels that sitting as a trial court it would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial court to acquit the accused and then to dispel ::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 14 those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.
(emphasis supplied) .
65.In C. Antony v. K.G. Raghavan Nair 2003 (1) SCC 1had to reiterate the legal position in cases where there has been acquittal by the trial courts. This Court observed thus:
"6. This Court in a number of cases has held that though the appellate court has full power to review the evidence upon which the order of acquittal is founded, still while exercising such an appellate power in a case of acquittal, the appellate court, should not only consider every matter on record having a bearing on the question of fact and the reasons given by the courts below in support of its order of acquittal, it must express its reasons in the judgment which led it to hold that the acquittal is not justified. In those line of cases this Court has also held that the appellate court must also bear in mind the fact that the trial court had the benefit of seeing the witnesses in the witness box and the presumption of innocence is not weakened by the order of acquittal, and in such cases if two reasonable conclusions can be reached on the basis of the evidence on record, the appellate court should not disturb the finding of the trial court.
66. In State of Karnataka v. K. Gopalkrishna 2005 (9) SCC 291, while dealing with an appeal againstacquittal, the Court observed:
"17...In such an appeal the Appellate Court does not lightly disturb the findings of fact recorded by the Court below. If on the basis of the same evidence, two views are reasonably possible, and the view favouring the accused is accepted by the Court below, that is sufficient for upholding the order of acquittal. However, if the Appellate Court comes to the conclusion that the findings of the Court below are wholly unreasonable or perverse and not based on the evidence on record, or suffers from serious illegality including ignorance or misreading of evidence on record, the Appellate Court will be justified in setting aside such an order of acquittal.
67. In The State of Goa v. Sanjay Thakran 2007 (3) SCC 755, this Court relied on the judgment in State of Rajasthan v. Raja Ram 2003 (8) SCC 180 and observed as under:
::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 15"15. 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 principle to be followed by 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.
The Court further held as follows:
" 16. it is apparent that while exercising the powers in appeal against the order of acquittal the court of appeal would not ordinarily interfere with the order of acquittal unless the approach of the lower court is vitiated by some manifest illegality and the conclusion arrived at would not be arrived at by any reasonable person and, therefore, the decision is to be characterized as perverse. Merely because two views are possible, the court of appeal would not take the view which would upset the judgment delivered by the court below.
68. In Chandrappa and Ors. v. State of Karnataka 2007 (4) SCC 415, this Court held:
(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.::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 16
(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.
r to
69. The following principles emerge from the cases above:
1. The appellate court may review the evidence in appeals against acquittalunder Sections 378 and 386 of the Criminal Procedure Code, 1973. Its power of reviewing evidence is wide and the appellate court can reappreciate the entire evidence on record. It can review the trial court's conclusion with respect to both facts and law.
2. The accused is presumed innocent until proven guilty.
The accused possessed this presumption when he was before the trial court. The trial court s acquittal bolsters the presumption that he is innocent.
3. Due or proper weight and consideration must be given to the trial court's decision. This is especially true when a witness credibility is at issue. It is not enough for the High Court to take a different view of the evidence. There must also be substantial and compelling reasons for holding that trial court was wrong.
70. In light of the above, the High Court and other appellate courts should follow the well settled principles crystallized by number of judgments if it is going to overrule or otherwise disturb the trial court s acquittal:
1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the ::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 17 trial court s decision. "Very substantial and compelling reasons" exist when:
i) The trial court s conclusion with regard to the facts is palpably wrong;
.
ii) The trial court s decision was based on an erroneous view of law;
iii) The trial court s judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court s judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/ report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused.
9. Bearing in mind the aforesaid exposition of law and parameters laid down therein and in order to see whether findings recorded by the learned trial Court are perverse, it would be necessary to have a re-look at the statements of the witnesses.
10. PW-1 Dr. Anita Negi is an expert witness, who stated that there was a wound approximately of 3 inch inside on the left side of the forehead of Sanjay Taneja and also gave opinion that this injury was simple in nature and caused by a sharp weapon ::: Downloaded on - 22/11/2018 22:57:20 :::HCHP 18 like knife etc. She proved on record MLC Ext.PW1/A. In cross-
examination, she admitted that the injury was possible if a .
person falls on sharp edge object.
11. PW 2 Anil Kukreja, who is a witness of seizure memo and stated that the police had taken sweater and two hankies (hankerchiefs) in its possession and sealed it inside a parcel Ext.P1 vide seizure memo Ext.PW2/A. He identified hankies as well as sweater as Ext.P2 to Ext.P4. He also identified the accused in the Court. In his cross examination, he stated that the parcel which was shown to him in the Court was sealed at the time when the police prepared the seizure memo. He also stated that he could not remember the colour of the hankies. He feigned ignorance regarding the contents of the papers upon which his signatures were obtained by the police. He further stated that the contents were not read over to him and he was only told that the parcel contained sweater and hankies.
12. PW3 is the victim. On his examination, he stated that he is running a shop named 'Taneja Handloom', while is elder brother is running a food shop and one Mustkeen had been hired by him on daily wages to run the shop and adjoining his shop the accused was running a shop of groundnut. He stated that on 24.06.2006, accused had hanged a few polythene bags just in front of the shop of his brother, to which he objected. In response, the respondent challenged the victim to remove the ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP 19 same and stated that he would cut his hands. When victim tried to remove the polythene bags, the respondent caught hold him .
by the neck and injured him by hitting with a sharp edged knife on the left side of the forehead. He accordingly informed the police and got his medical treatment done through the police. He further stated that he had wiped the blood that was oozing out from his forehead with the hankies and drops of blood had also fallen on his sweater, which were subsequently taken into possession by the police vide seizure memo Ext.PW2/A. In cross-
examination, he stated that he met his Advocate in another criminal case just 3-4 days before and had discussed the case with him and he had guided him about the deposition to be made in the Court. He also admitted that he has given his statement as per the instructions of the Advocate. He also admitted that respondent had lodged an FIR against him. He further admitted that neither he nor his brother had ever lodged a complaint against the respondent with regard to hanging of polythene bags outside their shop. He initially stated that they themselves had gone to the police station where the statement of witnesses as well as the spot map was recorded and prepared.
But later he improved his version by stating that it was prepared in the market.
13. PW4 Harbans Lal is the brother of the victim, who stated that at about 8:00 p.m. his brother had come to the shop ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP 20 and objected to the hanging of polythene bags by the respondent and requested him to remove the same but the .
respondent started fighting with him and then hit him with sharp edged weapon i.e. knife on forehead because of which blood started oozing out and had fallen on his sweater and two hankies. In cross-examination, he stated that the respondent was running a shop of groundnut and rewri and further admitted that he had never lodged any complaint about the hanging of the polythene bags by the respondent in front of his shop. He denied the suggestion that any FIR has been lodged against him and his brother. He also denied the suggestion that any case was pending against him in Court No. 5, Shimla. However, he admitted that on that date one case was lodged against them, which was fixed for recording the statement pf prosecution witnesses on 17.11.2006 but denied that he and his brother had indulged themselves in a fight with the accused and it was for this reason a case had been lodged against him. He further stated that the statement of him, his brother, his son and one Anil Kukreja were recorded on the same day at the police station itself till 10:00 p.m. He thereafter admitted that the Advocate tutored him with regard to their statements/depositions.
14. PW5 Mohd. Khurshid stated that in the night at 8:00 p.m., just ahead of his shop there was some fight between the accused and another person, but he showed his ignorance about ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP 21 the fact of the case and, therefore, declared hostile. During cross-examination by the learned APP, he admitted that on .
24.02.2006 at about 8:00 p.m., just a little distance from his shop Sanjay Taneja and the accused were fighting with each other but he denied the suggestion that the respondent in fit of anger hit the victim with sharp edged knife. But he admitted that he alongwith Mustkeen and Harbans Lal had prevented from the parties from fighting. He also admitted that huge quantity of blood was oozing out from the head of the victim and, therefore, he went to the police station to lodge case against the accused but when he was confronted with part 'A to 'A' of Mark 'X', then he categorically denied that such statement had not been made by him to the police. In cross-examination by the defence counsel, he admitted that at about 8:00 p.m. there was huge rush of people at Sabzi Mandi and he further admitted that up to 30-40 people gathered at the spot at the time of the fight but he betrayed his ignorance to the fact that Sanjay Taneja had started the fight with the respondent about which the respondent had lodged case against Sanjay Taneja. He also betrayed his ignorance regarding which of the party was the aggressor. At the fag end of his cross-examination, he stated that he was not an eye witness to the fight and stated that the police officer from the police station Sadar had called him to the police station on the next date. Therefore, obviously, this witness is not an eye ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP 22 witness and on account of major discrepancies in his statement, the same cannot be relied upon as it did not otherwise inspire .
confidence.
15. PW6 Mustkeen stated that at about 8:00 p.m. Sanjay Taneja/informant had requested the respondent to remove the polythene bag that had been hanged by him before his shop upon which both of them started fighting and during the course of which respondent hit Sanjay Taneja on his forehead with sharp edged knife. He further stated that lot of people gathered and eventually stopped them from fighting. According to him, police thereafter visited the spot and took into possession sweater and two hankies which were smeared with blood vide seizure memo Ext. PW2/A, which was signed by him. He identified the case property i.e. parcel Ext.P1, hankies Ext.P2 and Ext. P3 and sweater Ext.P4. In cross-examination, he stated that police had got his signatures on the parcel as well as on the papers, contents of which were not known to him. He betrayed his ignorance about the nature of the seal that was affixed on the samples, rather he stated that parcel had already been stitched prior to his signatures. He further betrayed his ignorance regarding the colour of two hankies. He stated that his statement had been recorded at the police station. He denied the suggestion that Sanjay Taneja and others had indulged ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP 23 themselves in fight with the respondent. He volunteered to state that only respondent had started fight.
.
16. PW7 HC Surender Kumar, is the I.O. and stated that on 24.02.2006 at about 8:00 p.m. informant/ Sanjay Taneja lodged a FIR at police station about the alleged fight by the respondent. He stated that after this, he took the informant/victim to the hospital for medical treatment and obtained MLC Ext.PW1/A. He further recorded the statement of informant under Section 154 Cr.P.C. Ext.PW3/A, on the basis of which FIR Ext.PW7/B was lodged. He prepared the spot map Ext.PW7/C and took into possession Ext.P4, two hankies Ext.P2 and Ext. P3 vide seizure memo Ext. PW2/A. After putting them inside the parcel Ext.P1, which was sealed with seal impression 'A' and specimen seal impression was also taken on separate piece of cloth Ext. PW7/D. After that the statements of the witnesses were recorded as per the version. In cross-
examination, he stated that seizure memo Ext.PW2/A was prepared on 25.02.2006 i.e. on the next date. He explained that the investigation could not be carried out on the same date as they had to take the victim to the hospital for his medical treatment. He admitted that on the same day, the respondent had also lodged separate FIR being FIR No. 45/06 against Sanjay Taneja. He further stated that FIR lodged by Sanjay Taneja was later in time and thus was a counter FIR. He stated that police ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP 24 had received prior report from Sanjay Taneja but as he was required to be taken urgently to the hospital, therefore, the FIR .
was registered subsequent to the one registered at the instance of the respondent.
17. Thereafter, the statement of the respondent was recorded under Section 313 Cr.P.C. wherein he explained that the victim Sanjay Taneja had lodged a false FIR against him and claimed innocence. However, he does not lead any evidence.
18. Having set out the statements of the prosecution witnesses and also the statement of the respondent under Section 313 Cr.P.C., one thing is absolutely clear that out of the same incident two separate FIRs came to be registered.
Therefore, in such circumstances, the evidence of the parties has to be appreciated with more care and caution and that is precisely what the learned Magistrate has done. The learned Magistrate has found the investigation to have been carried out in a slip shod manner and has come to positive finding that witnesses so examined in this case were tutored and this fact was even admitted by these witnesses during the course of cross-examination.
19. What is more surprising and rather shocking is that even the weapon of offence, which as per the prosecution case was a knife was not even exhibited during the course of trial.
Moreover, PW3 and PW4 undoubtedly were interested witnesses ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP 25 and therefore, their testimonies has rightly been discarded by the learned trial Magistrate.
.
20. Now, as regards PW5, the so-called sole independent witness examined by the prosecution has towards the fag end of his cross-examination clearly admitted that he had not witnessed the fight. Once that be so, obviously then the prosecution has no legs to stand and, therefore, learned Magistrate Committed no illegality in acquitting the respondent.
21. The scope of interference in appeal arising out of an order of acquittal, it is well established principle of law, consistently re-iterated and followed by all the Courts is 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 are perverse or otherwise unsustainable. Even though the appellate Court is entitled to consider, whether in arriving at a finding of fact, the trial Court has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration the 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 ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP 26 the demeanor of the witnesses is the best judge of the credibility of the witnesses.
.
22. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right and subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence of this Country. The appellate Court has to bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Therefore, interference with the decision of the trial Court cannot be interfered with in a casual or cavalier manner where the other view is possible, the same should be avoided, unless there are good reasons for such interference. It is only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, that the appellate Court can interfere with the order of acquittal.
23. In view of the aforesaid discussion, no perversity can be found in order of acquittal passed by the Court below.
Resultantly, I find no merit in this appeal and the same is accordingly dismissed.
(Tarlok Singh Chauhan), Judge November 21, 2018 sanjeev ::: Downloaded on - 22/11/2018 22:57:21 :::HCHP