Himachal Pradesh High Court
State Of H.P vs Manoj Mukhia And Ors on 14 December, 2017
Bench: Tarlok Singh Chauhan, Chander Bhusan Barowalia
IN THE HIGH COURT OF HIMACHAL PRADESH SHIMLA Cr. Appeal No.381/2010 Decided on : 14.12.2017 __________________________________________________________ .
State of H.P. .....Appellant
Versus
Manoj Mukhia and ors. ....Respondents
Coram:
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Chander Bhusan Barowalia, Judge.
Whether approved for reporting?1 No For the appellant:
.
r to Mr. V.S. Chauhan, Addl. A.G. with Mr. J.S. Guleria, Asstt. A.G .
For the respondent: Mr. Tara Singh Chauhan, Advocate, for respondent No.9.
Mr. Bimal Gupta, Senior Advocate with Ms. Rubeena Bhatt, Advocate, for respondent No.10.
_______________________________________________________________ Tarlok Singh Chauhan, Judge (oral) :
By medium of this appeal, the State has assailed the judgment dated 16.3.2010 passed by the learned Additional Sessions Judge , Ghumarwin, District Bilaspur, camp at Bilaspur, H.P. in Sessions Trial No.35-7/2006, whereby all the accused persons have been acquitted of the offences punishable under 1 Whether reporters of the local papers may be allowed to see the judgment? yes ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...2...
Sections 364, 396, 411, 201, 212 and 120-B of the Indian Penal .
Code respectively .
2 The case of the prosecution, in brief, is that on 30.7.2015, one Surinder Kumar, son of Bhag Singh visited Police Station Barmana and moved an application alleging therein that he was owner of truck No. HP-67-0477, which was attached with H.P. Ex -Servicemen Union, Barmana. On 26.7.2005, the said truck was loaded with cement and left for Panchkula, but neith er the truck reached its destination nor its driver namely Purshottam Chand returned back till date. The application was assigned to ASI Bhim Chand for inquiry, who visited Chandigarh and after verifying the facts forwarded the application to Police Statio n Barmana for registration of case under Section 407 IPC.
3 During investigation, the truck was found parked at Transport yard at Sector 26, Chandigarh. The whereabouts of the driver of the truck were located as per the calls details obtained from Airtel and Reliance Companies and it was found that IMEI of the body of mobile number 98163-25261 used by Purshottam was 351465603676290 . As per report obtained from Reliance company, mobile phone bearing IMEI No. 351465603676290 was used on mobile numbers 98170-63635 and 98170-75964 w.e.f.
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8.8.2005 to 21.8.2005 belonging to accused Sunil Kumar and .
accused Anil Kumar respectively.
4 On 4.11.2005, Sushma Devi, wife of Purshottam Chand made a statement that her husband had been kidnapped with an intent to rob or kill him and that is how Section 364 IPC came to be added.
5 During further investigation, it was revealed that on
28.7.2005, one unidentified
r dead body was found at Mand-da-
Johar near Guggar Hatti, under jurisdiction of Police Post, Joghon, Police Station Nalagarh, District Solan, which was identified from the photograph of the dead body and the clothes worn by the deceased by Sushma Devi, wife of Purshottam, Prittam Singh and Surinder Singh, owner of the truck, to be that of Purshottam Chand, driver of truck No. HP67-0477.
6 The investigation further revealed that the accused Anil Kumar alias Pitnu, Sunil Kumar alias Neelu, Puneet Kumar alias Punu, Rajinder Kumar alias Chintu, Sanjay Kumar alias Sanjiv, Ravinder Kumar alias Sonu, Manoj Mukhia, Sohan Singh and Bhupinder Pal had hatched a criminal conspiracy to commit dacoity and in future of their design, they killed Purshottam Chand and took away his truck alongwith 180 bags of cement, ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...4...
which they sold and thereafter parked the truck at Transport yard .
at Chandigarh.
7 During investigation, except accused Anil Kumar, who was declared as proclaimed offender, all the accused persons were arrested. Veena Devi, mother-in-law of accused Anil Kumar was also found guilty of harbouring or concealing him.
8 On finding a prima facie case, accused Nos. 1 to 9 were charged with offences punishable under Sections 120-B, 395 and 396 IPC whereas accused No.10 and 11 were charged with offences punishable under Sections under Sections 412 IPC and 212 IPC respective ly. All the accused persons pleaded not guilty and claimed trial.
9 During trial, the prosecution examined as many as 43 witnesses and tendered in evidence documents filed with the challan. On closer of the evidence of the prosecution, statements of the accused persons under Section 313 Cr.P.C. were recorded, in which they denied the prosecution evidence and pleaded innocence. However, they did not lead any evidence in their defence.
10 As observed earlier, the learned Additional Sessions Judge after evaluating the evidence vide judgment dated ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...5...
16.3.2010 acquitted all the accused persons of the charges .
framed against them constraining the State to file the instant appeal.
11 Learned Additional Advocate General for the appellant-
State has vehemently argued that the findings recorded by the learned trial court are perverse as the evidence available on record has not been appreciated in its right perspective and, therefore, deserve to be set aside, whereas the learned counsel for the respondents would vehemently argue that the respondents have been falsely implicated at the first stage and now have unduly made to undergo the agony of an appeal, that too in a case which is false and fabricated one and, therefore, prayed for dismissal of the appeal.
12 We have heard the learned counsel for the parties and have also gone through the record of the case carefully.
13 At the outset, it would be noticed that the case rests entirely upon the circumstantial evidence and it is more than settled that in such like cases the circumstance from which the inference as to the guilt of the accused is drawn, have to be proved beyond reasonable doubt and there has to be a complete chain of evidence consistent only that the hypothesis of guilt of ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...6...
the accused and totally inconsistent with his innocence and in .
such a case if the evidence relied upon is capable of two inferences then one which is in favour of the accused must be accepted. It is clearly settled that when a case rests on circumstantial evidence such evidence must satisfy three tests:
I. The circumstance from which an inference of guilt is sought to be drawn must cogently and firmly established.
II. Those circumstances should be of a definite tendency un-erringly pointing towards the guilt of the accused.
III. The circumstances taken cumulatively, should form a complete chain so that to come to the conclusion that the crime was committed by the accused.
14 Equally well settled is the proposition that where the entire prosecution case hinges on circumstantial evidence the Court should adopt cautious approach for basing the conviction on circumstantial evidence and unless the prosecution evidence point irresistible to the guilt of the accused, it would not be sound and safe to base the conviction of accused person.
15 In case of circumstantial evidence, each circumstances must be proved beyond reasonable doubt by independent evidence and the circumstances so proved, must form a complete ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...7...
chain without giving room to any other hypothesis and should be .
consistent with only the guilt of the accused (See: Lakhbir Singh vs. State of Punjab, 1994 Suppl. (1) SCC 173).
16 Factors to be taken into account in adjudication of cases of circumstantial evidence have been laid down by the Hon'ble Supreme Court as under:
I. The circumstances from which the conclusion of guilt is to be drawn should be fully established; II. The circumstances concerned "must" or "should" and "not" may be established. The facts so established should be consistent only with the hypothesis of the guilt of the accused, that is to say, this should not be explainable on any other hypothesis except with the accused guilt;
III. The circumstances should be of conclusive nature and tendency;
IV. They should exclude every possible hypothesis, except they want to be proved;
V. There must be a chain of evidence so complete as not to leave any reasonable ground for the reasons consisting that the innocence of the accused and must so that in all humane probability the act must have been done by the accused. (See: Sharad Birdhichand Sarda vs. State of Maharashtra, (1984) 4 SCC 116, M.G. Agarwal vs. State of Maharashtra (1963) SCC 200).
17 In Brij Lala Pd. Sinha vs. State of Bihar, 1998 (5) SCC 699, the Hon'ble Supreme Court held as under:-
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"9. In a case of circumstantial evidence, the prosecution is bound to establish the circumstances from which the .
conclusion is drawn must be fully proved; the circumstances should be conclusive in nature; all the circumstances so established should be consistent only with the hypothesis of guilt and inconsistent with innocence; and lastly, the circumstances should to a great certainty exclude the possibility of guilt of any person other than the accused. The circumstances proved should lead to no other inference except that of the guilt of the accused, so that the accused can be convicted of the offences charged. Before the court records conviction on the basis of circumstantial evidence, it must satisfy itself that the circumstances from which inference of guilt could be drawn have been established by unimpeachable evidence and the circumstances unerringly point to the guilt of the accused and further, all the circumstances taken together are incapable of any explanation on any reasonable hypothesis save the guilt of the accused."
18 The legal position on the subject has been elucidated in a recent judgment of the Hon'ble Supreme Court in Pawan Kumar @ Monu Mittal vs. State of Uttar Pradesh and Ant, 2015 (7) SCC 148, wherein it was observed as under:-
"36. In case where the direct evidence is scarce, the burden of proving the case of the prosecution is bestowed upon motive and circumstantial evidence. It is the chain of events that acquires prime importance in such cases.::: Downloaded on - 18/12/2017 23:03:41 :::HCHP
...9...
Before analyzing the factual aspects it may be stated that for a crime to be proved it is not necessary that the .
crime must be seen to have been committed and must, in all circumstances be proved by direct ocular evidence by examining before the court those persons who had seen its commission. The offence can be proved by circumstantial evidence also. The principal fact or factum probandum may be proved indirectly by means of certain inferences drawn from factum probans, that is, the evidentiary facts. To put it differently, circumstantial evidence is not direct to the point in issue but consist of evidence of various other facts which are so closely associated with the fact in issue that taken together they form a chain of circumstances from which the existence of the principal fact can be legally inferred or presumed (see Bodhraj v. State of J&K). In the case on hand, the evidence adduced by the prosecution as discussed above, clearly proves the chain of events connecting the accused to the guilt of the commission of the offence. The entire evidence brought on record by the prosecution, is not only convincing, but is also trustworthy. Even if the confession of Accused 4 and 7 made before PW 1 and PW 2, which is barred by Section 25 of the Evidence Act, is not taken into account, the other evidence on record adduced by the prosecution, is sufficient to hold the accused guilty of the offence.
37. This court has been consistently taking the view that where a case rests squarely on circumstantial evidence, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...10...
guilt of any other person. In the present, on scrutiny of evidence on record, we are convinced that the .
prosecution had established beyond reasonable doubt the complete chain of events which points at the guilt of the accused."
19 Indubitably, there is no direct evidence to connect the accused with the crime alleged to have been committed. The entire prosecution case rests on circumstantial evidence. It is well settled that when dealing with the question of guilt of person charged with a crime, there must be a clear and unequivocally proof of the "corpus delicti " and the hypothesis of delinquency should be consistent with all the fact proved.
20 Adverting to the facts, it would be noticed that the prosecution in this case has relied on the following circumstances to prove that Purshottam Chand was killed at Mand-da-Johar on the intervening night of 26/27.7.2005:
1 That the deceased Purshottam was driver of truck No.HP-67-0477, which left Barmana to Panchkula loaded with 180 cement bags on 26.7.2005;
2 That neither the driver nor the truck reached its destination at Panchkula;3 That truck No. HP-67-0477 was found parked at
Transport area Chandigarh;
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4 Recovery of bag containing the clothes of the deceased .
form the truck;
5 That an unidentified dead body was found at Mund-da-
johar; and 6 That the dead body was identified to be that of Purshottam Chand by his wife from the photograph of the dead body taken by the police.
21Noticeably, these were the same circumstances that were urged before the learned trial court and the said court was at great pains to discuss all the circumstances threadbare and it is only thereafter it recorded findings of acquittal in favour of the accused persons. However, we will still proceed to deal with all the aforesaid circumstances after bearing in mind the proposition of law as propounded in the judgments referred to above.
CIRCUMSTANCE S NO.1 & 222 In support of th ese circumstances, the prosecution has examined PW1 Balbir Singh, PW5 Madan Lal, PW6 Purshotam Chand, PW7 Surinder Kumar and PW38 Raj Kumar.
All these witnesses have supported the prosecution story.
23 PW1 Balbir Singh, who was a regular driver employed in truck No.HP-67-0477, deposed that he had proceeded on leave in connection with the marriage near about July 10, 2005 and in ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...12...
his absence Purshottam Chand was employed as driver, who was .
introduced to the owner by him. He further deposed that he received a telephonic call from the owner of the vehicle informing him that the said truck loaded with 180 cement bags had gone to Chandigarh, but the same did not reach there and he also asked him to locate whereabouts of the driver. He visited Chandigarh and Panchkula and made a search for the driver, but he was not traceable. r 24 PW5 Madan Lal deposed that on 26.7.2005, he took lift in truck No. HP-67-0477 being driven by Purshottam from Barmana and alighted at Berri at about 10.00 P.M. or 10.15 P.M. According to him, the said truck was loaded with cement and was going to Panchkula.
25 PW6 Purshotam Chand, who is running electrician shop at Berri, deposed that on 26.7.2005 deceased Purshottam Chand arrived at Berri with loaded truck and left for Panchkula.
26 PW7 Surinder Kumar, who is owner of the truck, stated that he had employed Purshottam Chand as driver in his truck No. HP-67-0477 on 26.7.2005 and on the same day, Purshottam Chand loaded cement in the said truck and ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...13...
proceeded to Panchkula. He further deposed that when the .
vehicle did not reach there, he reported the matter to the police.
27 PW38 Raj Kumar is brother-in-law of PW7 Surinder Kumar. He deposed that on 26.7.2005, Purshottam Chand left to Panchkula along with truck loaded with 180 cement bags. On the next day when he inquired from Panchkula, he found that the vehicle had not reached there.
28 Thus, from the statements of the aforesaid witnesses, it is proved on record beyond reasonable doubt that on 26.7.2005, Purshottam Chand was the driver of truck No. HP-67-0477, which left Barmana to Panchkula loaded with 180 cement bags, but the said truck never reached its destination at Panchkula alongwith its driver. Therefore, circumstances No. 1 and 2 above relied upon by the prosecution stand proved on record beyond reasonable doubt.
CIRCUMSTANCE NO.3 29 The next circumstance relied upon by the prosecution is that truck No. HP-67-0477 was found parked at transport area Chandigarh on 28.7.2005. This circumstance has been duly proved on record by PW13 Varinder Kumar, who is brother of PW-
7 Surinder Kumar, owner of the truck and working in Palampur ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...14...
Mandi Transport at Sector 26, Chandigarh. He deposed that on .
28.7.2005, at about 10.00 A.M. or 10.30 A.M. he had seen truck No. HP-67-0477 belonging to his brother parked to the side of transport company and when the driver did not turn upto 1.00 P.M. or 1.30 P.M., he informed his brother Surinder Kumar about the presence of his vehicle at Chandigarh.
CIRCUMSTANCE NO.4 30 The next circumstance relied upon by the prosecution is that bag containing the clothes of the deceased was found in truck No. HP -67-0477 at Chandigarh. This circumstance stands duly proved on record by the statement of PW37 ASI Bheem Singh, who had visited Chandigarh. He deposed that the truck was opened with the duplicate keys by PW7 Surinde r Kumar and a polythene bag Ext.P6 was found in the truck which contained towel Ext.P2, pants Ext.P3, shirt Ext.P4 and Baniyan Ext.P6. PW3 Sushma Devi had identified these clothes to be that of her deceased husband.
CIRCUMSTANCE NO.5 31 The next circumstance relied upon by the prosecution is that on 28.7.2005 an unidentified dead body wrapped in a blanket was found at Mand-da-johar. The circumstance stands ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...15...
duly proved on record by the statements of PW10 Charan Dass, .
PW24 Roshan Lal, PW25 Bhagwati Prashad, PW28 Constable Ashok Kumar, PW31 ASI Prithi Singh and PW19 Sukh Dev.
32 PW10 Charan Dass was grazing cattle at Mand-da-
johar while PW24 Roshan Lal was carrying sand and Bajari on his mules at Mand-da-johar on 28.7.2005. Both of these witnesses deposed that they saw a dead body wrapped in the blanket in the bushes near the r pond at Gujjar Hatti on 28.7.2005.
33 PW25 Bhagwati Prashad, who was Pradhan of Gram Panchayat Kundlu at the relevant time , deposed that on coming to know about the detection of the dead body, he informed the police about it. PW28 Constable Ashok Kumar was working as M.C. in Police Post Joghon at the relevant time. He had received information about the detection of the de ad body on telephone from PW25 Bhagwati Prashad and recorded this information in the daily diary of the police post. PW31 ASI Prith i Singh was posted as Incharge, Police Post Joghon. After receiving information about the detection of the dead body he visited the spot and recovered the dead body. PW19 Sukh Dev, who was working as photographer at Swarghat, had clicked the ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...16...
photographs Ext.PW19/A and Ext.PW19/B of the dead body on .
the spot on 29.7.2005.
CIRCUMSTANCE NO.6 34 The next circumstance relied upon by the prosecution is that an unidentified dead body , which was recovered at Mand-
da-johar near Gujjar Hatti on 28.7.2005, was identified by PW3 Sushma Devi and PW4 Prittam Singh to be that of Purshottam.
35 PW3 Sushma Devi is wife of Purshottam and PW4 Prittam Singh is brother of Purshottam. Both of these witnesses deposed that the police had shown them the photographs of the death body which were identified by them to be that of deceased Purshottam Chand. Therefore, the prosecution has duly proved on record that the dead body which was recovered at Mand-da-
johar near Gujjar Hatti on 28.7.2005 was that of the deceased Purshottam.
36 Thus, from the above discussion it is proved on record beyond reasonable doubt that the deceased Purshottam Chand was driver of truck No. HP-67-0477 and he left Barmana on the night of 25.7.2005 for Panchkula, but he did not reach there and his dead body wrapped in a blanket was found lying in bushes at Mand-da-johar near Gujjar Hatti on 28.7.2005.
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37 PW42 Dr. Bhupesh Gupta , who had conducted .
postmortem of the dead body in CHC , Nalagarh on 29.7.2005, opined that the deceased had died due to head injury which was possible with the stone shown to him in the Court. In his cross-
examination, he disclosed that the dead body was decomposed and on examination, it was not possible to ascertain as to what was the weapon of offence with which the deceased died or had been killed. He admitted that the head injury was possible due to fall on a hard surface or striking against a hard object.
38 From the medical evidence available on record, it is proved on record that the deceased had died due to head injury.
39 The case of the prosecution, in a nutshell, is that respondents No.1 to 9 and proclaimed offender Anil Kumar had caused head injury to the deceased Purshottam Chand and killed him and wrapped his dead body in a blanket and abandoned the same in bushes from where, it was recovered on 29.7.2005.
Thereafter accused Nos. 1 to 9 sold 180 cement bags to accused No.10 Aditya Mittal owner of M.G. Plaza at Baddi on 27.7.2005 and thereafter parked truck No. HP-67-0477 in transport area at Chandigarh. Accused Aditya Mittal has been charged under Section 412 IPC for purchasing 180 bags from accused Nos. 1 to 9 ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...18...
knowing or having reason to believe that these cement bags .
belonged to gang of dacoits and were a "stolen property". Accused No. 11 Veena Devi has been charged under Section 212 IPC for harbouring or concealing proclaimed offender Anil Kumar.
30 From the perusal of the record, it is crystal clear that the prosecution has not led any direct evidence at all in order to bring home the guilt of the accused persons and the case of the prosecution is based upon the circumstantial evidence.
31 It was conceded before the learned trial court by the prosecution that there was no evidence on record against accused Veena Devi that she had harboured or concealed the presence of the accused Anil and as such, the prosecution had not been able to connect her with the offence charged against her. The role of the other accused and evidence led against them is discussed as under:-
(i) Kamlesh Kumar
32 Evidently no evidence has been led by the prosecution, which may prima facie establish or show even the involvement of accused Kamlesh Kumar in this case. He is admittedly the owner of vehicle No. HP-01-2735 which was purchased by him in the name of his wife from PW20 Subhash Chand. According to the ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...19...
prosecution case, the accused persons had used vehicle No.HP-
.
01-2735 for commission of the offences in question. But then there is not even an iota of evidence on record to show that vehicle No. HP-01-2735 was infact used by the accused persons for the commission of the offences in question. Therefore, the prosecution has failed to link the accused Kamlesh Kumar with the other accused persons as well a the offences in question.
(ii) Bhupender Pal and Puneet Kumar 33 The allegations against these accused persons are that these accused persons along with the other accused persons killed the deceased and shared the proceeds of the dacoity.
However, the prosecution has also not been able to connect both of these accused with the offences in question. The only circumstance relie d upon by the prosecution against these accused persons is that they identified the place from where dead body of the deceased was recovered. Accused Bhupender Pal had identified the place of occurrence on 6.12.2005 vide memo Ext.PW12/E and accused Puneet Kumar made such identification on 17.12.2005 vide memo, Ext.PW12/D. 34 The dead body of the deceased was recovered from Mand-da-johar on 28.7.2005 and identification of this place by ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...20...
accused Bhupender Pal and Puneet Kumar in the month of .
December 2005 does not connect these accused persons with the offences in question in any manner because there is no other evidence against both these accused persons showing their involvement in the dacoity and murder of the deceased. Therefore, the prosecution has failed to link accused Bhupender Pal and Puneet Kumar with the offences charged against them.
(iii) Sunil Kumar 35 The allegations against the accused Sunil Kumar are that he along with the other accused persons killed the deceased and shared the proceeds of dacoity. The circumstances relied upon by the prosecution against the accused are that he used the SIM of his mobile No. 98170-62635 in the body of mobile of deceased Purshottam bearing IMEI No.351465603676290 between 8.8.2005 and 21.8.2005 and he identified the place of occurrence and M.G. Plaza Baddi where the cement bags were sold by them to accused Aditya Mittal.
36 In order to prove that IMEI number of mobile phone No.98163-25261 belonging to deceased Purshottam Chand was 351465603676290 , the prosecution produced in evidence a letter dated 3.11.2005 (Mark Y) addressed by Balram Verma, Sr. ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...21...
Executive Regulatory of AIRTEL and call details of the mobile .
No.98170-62635 of accused Sunil Kumar (Mark Z) obtained from Reliance Telecom Ltd. vide letter (Mark AA). However, both documents Mark 'Y' and Mark 'Z' have not been duly proved on record by the prosecution. Even, the prosecution has failed to examine said Balram Verma, Senior Executive who had addressed letter dated 3.11.2005 (Mark Y) to S.P. Bilaspur.
37 PW40 Davinder Verma, Nodal Officer of AIRTEL Shimla who has been examined by the prosecution deposed that letter Mark Y was signed by Balram Ve rma, however, he has not produced the record on the basis of which letter Mark Y was issued by Balram Verma. Similarly, PW41 Ashustosh Kashyap, Nodal Officer, Reliance Company, deposed that call details Mark Z in eight pages was issued by his company, which was supplied to S.P. Bilaspur vide letter Mark AA. However, neither this witness has himself downloaded the call details Mark Z nor letter Mark AA is signed by him. The calls details do not show that Mobile No. 98170-62365 was in the name of the accused Sunil Kumar.
38 The question is whether the computer printouts are admissible in evidence or not. There cannot be any dispute that such printouts form part of electronic record and when produced ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...22...
for inspection of the Court, these form part of documenta ry .
evidence under Section 3 of the Evidence Act (in short "the Act") .
Any documentary evidence by way of electronic record under the Act in view of Sections 59 and 65-A of the Act can be proved only in accordance with the procedure prescribed under Section 65-B of the Act as has been authoritatively held by the Hon'ble Three Judges' bench of Supreme Court in Anvar P.V. vs. P.K. Basheer and others, (2014) 10 SCC 473 in the following manner:-
"14. Any documentary evidence by way of an electronic record under the Evidence Act, in view of Sections 59 and 65A, can be proved only in accordance with the procedure prescribed under Section 65B. Section 65B deals with the admissibility of the electronic record. The purpose of these provisions is to sanctify secondary evidence in electronic form, generated by a computer. It may be noted that the Section starts with a non obstante clause. Thus, notwithstanding anything contained in the Evidence Act, any information contained in an electronic record which is printed on a paper, stored, recorded or copied in optical or magnetic media produced by a computer shall be deemed to be a document only if the conditions mentioned under sub- Section (2) are satisfied, without further proof or production of the original. The very admissibility of such a document, i.e., electronic record which is called as computer output, depends on the satisfaction of the four conditions under ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...23...
Section 65B(2). Following are the specified conditions under Section 65B(2) of the Evidence Act:
.
(i) The electronic record containing the information should have been produced by the computer during the period over which the same was regularly used to store or process information for the purpose of any activity regularly carried on over that period by the person having lawful control over the use of that computer;
(ii) The information of the kind contained in electronic record or of the kind from which the information is derived was regularly fed into the computer in the ordinary course of the said activity;
(iii) During the material part of the said period, the computer was operating properly and that even if it was not operating properly for some time, the break or breaks had not affected either the record or the accuracy of its contents; and
(iv) The information contained in the record should be a reproduction or derivation from the information fed into the computer in the ordinary course of the said activity.
15.Under Section 65B(4) of the Evidence Act, if it is desired to give a statement in any proceedings pertaining to an electronic record, it is permissible provided the following conditions are satisfied:
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(a) There must be a certificate which identifies the electronic record containing the statement;
.
(b) The certificate must describe the manner in which the electronic record was produced;
(c) The certificate must furnish the particulars of the device involved in the production of that record;
(d) The certificate must deal with the applicable conditions mentioned under Section 65B(2) of the Evidence A ct; and
(e) The certificate must be signed by a person occupying a responsible official position in relation to the operation of the relevant device.
16. It is further clarified that the person need only to state in the certificate that the same is to the best of his knowledge and belief. Most importantly, such a certificate must accompany the electronic record like computer printout, Compact Disc (CD), Video Compact Disc (VCD), pen drive, etc., pertaining to which a statement is sought to be given in evidence, when the same is produced in evidence. All these safeguards are taken to ensure the source and authenticity, which are the two hallmarks pertaining to electronic record sought to be used as evidence. Electronic records being more susceptible to tampering, alteration, transposition, excision, etc. without such safeguards, the whole trial based on proof of electronic records can lead to travesty of justice.
17. Only if the electronic record is duly produced in terms of Section 65B of the Evidence Act, the question would arise as ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...25...
to the genuineness thereof and in that situation, resort can be made to Section 45A - opinion of examiner of electronic .
evidence.
18. The Evidence Act does not contemplate or permit the proof of an electronic record by oral evidence if requirements under Section 65B of the Evidence Act are not complied with, as the law now stands in India. "
39 Therefore, in absence of any legal evidence on record, the prosecution has failed to prove that the accused Sunil Kumar was having Mobile No.98170-62365 of the Reliance Telecom and he used his SIM card on the body of the phone being IMEI No. 351465603676290 belonging to deceased Purshottam Chand.
40. Now coming to the next circumstance relied upon against the accused Sunil Kumar. As pe r the prosecution case, he had identified the place of occurrence and M.G. Plaza Baddi where the cement was sold. However, the identification of the place of occurrence by accused Sunil Kumar about 5-6 months after the dead body was recovered is not sufficient to hold that he had killed the deceased. Similarly, identification of M.G. Plaza in pursuance to disclosure statement made by him is of no legal consequence because no recovery of cement has been effected from there on the basis of the disclosure statement made by him.
There is also no other evidence on record to show that the cement ::: Downloaded on - 18/12/2017 23:03:41 :::HCHP ...26...
bags were actually sold by the accused persons to the owner of .
M.G. Plaza Baddi.
41 From the above discussion, it is evident that the first circumstance relied upon by the prosecution against accused Sunil Kumar has not been proved against him, whereas the second circumstance relied upon by the prosecution does not link him with the offence s charged against him. Accordingly, the prosecution has failed to bring home the guilt of accused Sunil Kumar beyond reasonable doubt.
(iv) Aditya Mittal 42 The allegations against this accused are that on 27.7.2005 he had purchased 180 bags of cement from the accused Nos. 1 to 9 knowing or having reason to believe that they were gang of dacoits and the cement bags were "stolen property".
43 The only evidence led by the prosecution against accused Aditya Mittal was the statement of PW16 Satbir Singh, who was working as mason with him and in whose presence this accused had purchased 180 cement bags from accused Nos. 1 to
9. However, PW16 has not supported the version of the prosecution story and denied the prosecution case that accused Aditya Mittal had purchased the cement bags from the remaining ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...27...
accused persons in his presence. He was declared as hostile .
witness and cross-examined by the Public Prosecutor but nothing could be elicited from his cross-examination, which lends any support to the case of the prosecution.
44 Thus, the testimony of PW16 Satbir Singh is of no avail to the case of the prosecution. No recovery of any stolen cement bags has been effected from accused Aditya Mittal.
Therefore, the prosecution has failed to prove beyond reasonable doubt that the accused Aditya Mittal had purchased 180 stolen cement bags from accused Nos. 1 to 9 knowing or having reason to believe that they were gang of dacoits.
(v) Sohan Singh 45 The allegations against this accused are that he alongwith the other accused persons killed the deceased in order to commit dacoity and shared the proceeds of the dacoity. The prosecution has relied upon two circumstances against this accused.
46 The first circumstance relied upon by the prosecution against him is that purse Ext.P10 containing the photograph Ext.P11 of the deceased was recovered from the house of the accused vide seizure memo, Ext.PW4/E on the basis of disclosure ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...28...
statement Ext.PW12/A. PW12 Ravinder Kumar and PW14 .
Kashmir Singh, who are the marginal witnesses to the disclosure statement Ext.PW12/A and seizure memo, Ext.PW14/E, have supported the versions of the prosecution story and testified that pursuant to disclosure statement Ext.PW12/A accused Sohan Lal got purse Ext.P10 containing photograph of the deceased Ext.P11 recovered from his house which was kept under the pillow of his be d. PW4 Pritam Singh brother of the deceased had identified the purse Ext.P10 to be that of his brother on the basis that it contained photograph Ext.P11 of the deceased.
47 At the time of arguments, the learned counsel for the respondents have pointed out that word "GUMSHUDA" is scribed on the reverse of photograph, Ext.P11. They have contended that photograph Ext.P11 appears to have been handed over by the owner of the truck to the police on 30.7.2005 when he lodged report Ext.PW7/A about missing of his truck and the driver in Police Station Barmana and later on during investigation of the case, this photograph was planted against accused Sohan Singh because otherwise there was not even an iota of evidence against him.
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48 There appears to be substantial force in the .
submissions made by the learned counsel. Purse Ext.P10 does not contain any specific identification mark to link the same with the deceased. Except the photograph not other material was found in the purse. If the purse belonged to the dece ased and accused Sohan Lal had removed the same from the person of the deceased in that case it appears highly doubtful that he would have retained the photograph of the deceased in the purse even about 5-6 months after the murder of the deceased when the investigation about his murder was going on. Further, the word "GUMSHUDA" written on the reverse of the photograph also creates reasonable doubt that photograph Ext.P11 was contained in purse Ext.P10.
49 No doubt, both PW12 and PW14 had deposed about the recovery of photograph Ext.P11 from purse, Ext.P10 but both of these witnesses do not appear to be reliable witnesses. PW12 has admitted that he was an accused in criminal case registered in Police Station Barmana. He also admitted that whenever the police needs his services they call him. PW14 has deposed that his vehicle was caught by the police at Sundernagar with charas and weapons. He has further admitted that many cases were ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...30...
registered against him in Police Station Barmana against his .
father.
50 Thus, both of these witnesses to the disclosure statement, Ext.PW12/A and recovery memo Ext.PW4/E were not independent witnesses but the persons who were ready to oblige the police. Moreover, the Investigating Officer was not examined due to his ill health and as such there is no explanation as to why any respectable independent witness was not associated by him.
Therefore, recovery of purse, Ext.P10 containing photograph Ext.P11 of the deceased at the instance of accused Sohan Singh does not appear to be genuine and above board and as such, accused Sohan Singh is entitled to benefit of doubt.
51 The next circumstance relied upon by the prosecution against th e accused is that he identified the place of occurrence on 6.12.2005 vide memo, Ext.PW12/E. But this circumstance by itself is not sufficient to link this accused with the offences charged against him beyond reasonable doubt. Thus, the prosecution has failed to prove circumstances against accused Sohan Singh which links him with the charged offences beyond reasonable doubt.
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(vi) Sanjay Kumar .
52 This accused is also charged with committing dacoity and murder of the deceased along with the other accused persons. The prosecution has relied upon the following two circumstances against the accused.
53 The first circumstance relied upon against this accused is that he made a disclosure statement Ext.PW12/F, which led to the recovery r of tape recorder Ext.P14 from his residential house on 29.1.2006 vide seizure memo, Ext.PW7/B which was identified by PW7 Surinder Kumar as the stolen property of his truck No. HP-67-0477.
54 The prosecution has examined PW12 Ravinder Kumar to prove disclosure statement Ext.PW12/F while PW7 Surinder Kumar and PW12 Ravinder Kumar to prove the recovery memo.
55 PW12 Ravinder Kumar has deposed that accused Sanjay Kumar had made a disclosure statement and got tap recorder Ext.P14 recovered vide seizure memo Ext.PW12/F. PW7 Surinder Kumar had identified tape recorder Ext.P14 recovered from the house of the accused Sanjay situated at Village Shedpa which is situated at a distance of about 6-7 kms away from Slapper bridge across the Sutlej river towards Mandi side. He ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...32...
further stated that at the time of recovery, accused Sanjay Kumar .
was present at his house and he was apprehended from his house. Thus, from the statement of PW7 it is revealed that at the time when tape recorder Ext.P14 was recovered accused Sanjay Kumar was present in this house and he was apprehended by the police after the recovery of the tape recorder. This belies the story of the prosecution as narrated by PW12 that accused Sanjay Kumar while in police custody made a disclosure statement in Police Station Barmana on 29.1.2006 and thereafter he led to the recovery of the tape recorder from his house on 29.1.2 006.
56 PW7 and PW12 have also contradicted each other regarding the location of the house of accused Sanjay Kumar.
According to PW7 the house of the accused Sanjay is situated about 6-7 kms away from Slapper bridge across river Sutlej towards Mandi side . Thus, if the version of this witness is believe d then village Shedpa where the house of accused Sanjay Kumar is situated falls in District Mandi because the areas across Slapper bridge on the right bank of river Sutlej fall within Mandi district.
But according to PW12 the house of accused Sanjay is situated in a village which falls in Gram Panchayat Harnora. It may be noticed that Gram Panchayat Hanora is situated on the left bank ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...33...
of river Sutlej and falls with District Bilaspur and this Court can .
take judicial notice of this fact. Thus, in view of the conflicting versions putforth by PW7 and PW12 the recovery of tape recorder Ext.P14 at the instance of accused Sanjay becomes doubtful.
57 It may be further noticed that no specific identification mark was present on tape recorder Ext.P14. PW7 had not produced its bill voucher. On 1.8.2005 when truck No. HP-67- 0477 was recovered at Chandigarh and opened with the duplicate keys provided by PW7 Surinder Kumar at that time a complete inventory of the article lying in the cabin of the truck was prepared by the police. At that time no complaint was made by PW7 that tape recorder was fitted in his truck which was missing.
Therefore, the version putforth by PW7 that tape recorder Ext.P14 is his stolen property does not inspire full confidence.
58 The next circumstance relied against this accused is identification of the place of occurrence by him on 29.1.2006 vide memo Ext.PW12/G. However, this circumstance even if taken to be proved is not by itself sufficient to connect the accused person with the murder and dacoity in question.
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59 Thus, the prosecution has also failed to link accused .
Sanjay with the offences charged against him beyond reasonable doubt.
(vii) Rajinder Kumar 60 The allegations against this accused are that he along with the accused persons had killed the deceased in order to commit dacoity and shared the proceeds of the dacoity. To prove these allegations, the prosecution has relied upon the following circumstances against him.
61 The first circumstance relied upon by the prosecution against him is that on 1.12.2005 while in police custody he had made a disclosure statement Ext.PW8/C to the effect that he could get one golden ring recovered and on the basis of this statement he got golden ring Ext.P9 recovered from his house situated in Village Khetad vide seizure memo Ext.PW4/D, which was identified by PW4 Pritam Chand to be that of deceased Purshottam.
62 The prosecution has examined PW8 Kuldeep Singh who is one of the margin al witnesses to the disclosure statement and recovery memo to prove those documents. PW4 Pritam Singh has been examined as identifier of the golden ring.
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63 PW8 Kuldeep Singh deposed that on 1.12.2005 .
accused Rajinder Kumar had made a disclosure statement Ext.PW8/C to the police in his presence that he had kept golden ring below the pillow in his house which he could get recovered.
He further deposed that thereafter they went to the house of accused Rajinder Kumar where he took out the golden ring underneath the pillow and gave it to the police which was identified by the brother of Purshottam Chand and taken into possession by the police vide seizure memo Ext.PW4/D. 64 PW4 Pritam Singh deposed that the accused got golden ring Ext.P9 recovered from his house which was kept under the pillow which was bearing word "P" and that he identified the same to be that of deceased Purshottam Chand.
However, the identification of ring Ext.P9 made by PW4 is not free from reasonable doubt. He had identified this ring to be that of his deceased brother because 'P" was inscribed on it. There is nothing in his statement to show that he had seen his brother wearing the golden ring with inscription "P" thereon. No complaint was made to the police prior to 21.12.2005 that the deceased was wearing golden ring which was also missing. The wife of the deceased when examined in the court on 25.10.2007 had also ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...36...
not stated that her husband was also wearing golden ring with "P"
.
inscribed thereon. It is for the first time she identified ring Ext.P9 to be that of her deceased husband when she was re -examined by the prosecution on 21.1.2010. Therefore, the prosecution has failed to prove beyond reasonable doubt that ring Ext.P9 belonged to the deceased.
65 The next circumstance relied upon against the accused is that he along with accused Manoj Kumar and Ravinder Kumar got the place of occurrence identified on 2.12.2005, but this fact by itself is not sufficient to hold him guilty of the charged offences.
66 Thus, accused Rajinder Kumar h as also not been linked with the offences charged against him beyond reasonable doubt.
(viii) Ravinder Kumar 67 This accused has also been charged with offence s of committing dacoity and murder. The prosecution has relied upon the following two circumstance against him.
68 The first circumstance relied against the accused is that in pursuant to disclosure statement, Ext.PW8/B made by him, watch Ext.P7 belonging to the deceased was recovered vide ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...37...
seizure memo, Ext.PW4/B. Even if this circumstance is held to be .
proved in that case also it cannot be held beyond reasonable doubt that the watch was in the exclusive possession of the accused. The watch was recovered from the drawer of the dash board of the Barber shop in Barmana Bazaar about 4 months after the occurrence. Accused Ravinder Kumar is neither owner nor he remained in exclusive possession of this Barber shop. On the other hand the shop belongs to PW18 Nand Lal and the accused was only working with him during the year 2005. PW18 testified this fact when he appeared in the witness box. However, this witness had not deposed that the watch was kept in the shop by accused Ravinder Kumar. Therefore, it cannot be held that accused Ravinder Kumar had exclusive knowledge about the presence of the watch in the shop. Even otherwise it appears some what doubtful that the accused could have retained such an incriminating article in his possession in the manner as alleged by the prosecution. Thus, the prosecution has failed to prove that watch Ext.P7 was recovered from the exclusive possession of the accused Ravinder Kumar.
69 The next circumstance relied upon against him is that he along with accused Manoj Mukhia and Rajinder Kumar ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...38...
identifie d the place where the dead body of the deceased was .
recovered and he along with accused Manoj Mukhia also identified the place at Chandigarh from where truck No. HP-67- 0477 was recovered. But identification of the aforesaid places abut 4 months after this occurrence by the accused by itself is not sufficient to hold him guilty of the charged offences.
70 Thus, the prosecution has failed to link accused Ravinder Kumar with the offences against him beyond reasonable doubt.
(ix) Manoj Mukhia 91 This accused too had been charged for offence s of committing dacoity and murder. The prosecution has relied upon the following circumstances against him.
92 The first circumstance relied against this accused is that T-shirt Ext.P8 belonging to the deceased was recovered from his residential house in pursuance of disclosure statement made by him. This T-shirt was identified by PW4 to be that of the deceased. However, the identification of T-shirt made by PW4 is not free from reasonable doubt because there was no specific identification mark present on T-shirt Ext.P8 to show that it be longed to the deceased only. Even otherwise it appears highly ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...39...
doubtful that the accused had picked up only one T-shirt of the .
deceased and left the other clothes in the truck which were taken into possession by the police vide seizure memo Ext.PW1/A. 93 The next circumstance relied upon by the prosecution is that stone Ext.P12 was recovered vide seizure memo Ext.PW43/O in pursuance of disclosure statement Ext.PW4/F made by him. The stone has been recovered from the open place and no mark of blood was found present thereon. Therefore, it cannot be held that Ext.P12 was the same stone which was used for causing head injury to the deceased. Moreover, PW42 who had conducted post mortem of the dead body had admitted that as the dead body was decomposed, therefore, it was not possible to determine as to what was the weapon of offence with which the deceased died. Therefore, the recovery of stone Ext.P12 at the instance of the accused is of no legal consequence.
94 The next circumstance relied upon against this accused is that he along with accused Ravinder Kumar and Rajinder Kumar identifie d the place from where the dead body of deceased Purshottam Chand was recovered and he along with accused Ravinder Kumar identified the place where the truck was found parked at Chandigarh after this occurrence. But ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...40...
identification of the aforesaid places by the accused by itself is not .
sufficient to hold him guilty for the charged offences.
95 From the aforesaid discussions, we are of the firm view that the prosecution has failed to prove its case as the evidence led does not establish the guilt of the accused persons/respondents and, therefore, in such circumstances, it cannot be held that the judgment rendered by the learned Additional Sessions Judge is in any manner perverse or not sustainable in the eyes of law.
96 The legal position with regard to the in terference in appeal against acquittal is well settled in Mookkiah and another vs. State, represented by Inspector of Police, Tamilnadu, 2013 (2) SCC 89, wherein the Hon'ble Supreme observed as under:-
"9. It is not in dispute that the trial Court, on appreciation of oral and documentary evidence led in by the prosecution and defence, acquitted the accused in respect of the charges leveled against them. On appeal by the State, the High Court, by impugned order, reversed the said decision and convicted the accused under Section 302 read with Section 34 of IPC and awarded RI for life. Since counsel for the appellants very much emphasized that the High Court has exceeded its jurisdiction in upsetting the order of acquittal into conviction, let us analyze the scope and power of the High Court in an appeal filed against the order of acquittal ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...41...
10. This Court in a series of decisions has repeatedly laid down that .
"3...... as the first appellate court the High Court, even while dealing with an appeal against acquittal, was also entitled, and obliged as well, to scan through and if need be re - appreciate the entire evidence, though while choosing to interfere only the court should find an absolute assurance of the guilt on the basis of the evidence on record and not merely because the High Court could take one more possible or a different view only. Except the above, where the matter of the extent and depth of consideration of the appeal is concerned, no distinctions or differences in approach are envisaged in dealing with an rappeal as such merely because one was against conviction or the other against an acquittal.
[Vide State of Rajasthan vs. Sohan Lal and Others, 2004 5 SCC 573]
11. In State of Madhya Pradesh vs. Ramesh and Another, 2011 4 SCC 786, this Court, while considering the scope and interference in appeal against acquittal held:
"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 ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...42...
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."
12. In Minal Das and Others vs. State of Tripura, 2011 9 SCC 479 , while reiterating the very same position, one of us, P. Sathasivam, J. held:
"14. There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is found and to come to its own conclusion. The appellate court can also review the conclusion arrived at by the trial court with respect to both facts and law. While dealing with the appeal against acquittal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and only by giving cogent and adequate reasons set aside the judgment of acquittal. 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. 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."
13. In Rohtash vs. State of Haryana, 2012 6 SCC 589 , this Court held:
"27. The High Court interfered with the order of acquittal recorded by the trial court. The law of interfering with the judgment of acquittal is well settled. It is to the effect that only in exceptional cases where there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...43...
the 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 innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference. (Vide State of Rajasthan v.
Talevar, 2011 11 SCC 666 and Govindaraju v. State, 2012 4 SCC 722)"
14. In a recent decision in Murugesan & Ors. vs. State Through Inspector of Police, 2012 10 SCC 383 , one of us Ranjan Gogoi, J. elaborately considered the broad principles of law governing the power of the High Court under Section 378 of the Code of Criminal Procedure while hearing the appeal against an order of acquittal passed by the trial Judge. After adverting to the principles of law laid down in Sheo Swarup vs. King Emperor, 1934 AIR(PC) 227 (2) and series of subsequent pronouncements in para 21 summarized various principles as found in para 42 of Chandrappa & Ors. vs. State of Karnataka, 2007 4 SCC 415 as under:
"21. A concise sta tement of the law on the issue that had emerged after over half a century of evolution since Sheo Swarup1 is to be found in para 42 of the Report in Chandrappa v. State of Karnataka. The same may, therefore, be usefully noticed below: (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 ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...44...
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.
[pic](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."
(emphasis in original) 97 Similar reiteration of law can be found in a very recent judgment of the Hon'ble Supreme Court in Khekh Ram vs. State of H.P., 2017 SCC Online 1301.
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98 Thus, what can be taken to be settled is that the .
appellate court should not ordinarily set aside a judgment of acquittal and should concentrate 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 has failed to take into consideration admissible evidence and/or has 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.
99 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. However, 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 avoid ed, unless there are good reasons for interference.
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 ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP ...46...
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.
100 After taking into consideration the totality of the facts and circumstances of the case and the evidence led on record by the prosecution, we find that many important links are missing so as to form the complete chain of evidence, which could conclusively establish the guilt on the part of the accused/respondents consistent only with the hypothesis of their guilt and draw a conclusion that it was the accused/respondents alone who had committed the offences in question. Therefore, it can be safely concluded that the prosecution has failed to bring home the guilt of th e accused/respondents as the chain of evidence is inconsistent and broken and that being so, the inference that is in favour of the accused/respondents has to be accepted. The circumstances brought about do not unerringly point out towards the guilt of the accused and such circumstances have otherwise been considered in detail by the learned trial court while ordering the acquittal of the accused.
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Hence, the judgment of the learned trial court otherwise cannot .
be held to be perverse as the learned trial court has taken great pains to discuss threadbare the testimonies of each of the witnesses and it is only after evaluating the statements that the learned trial court has extended the benefit of acquittal.
101 For the forging reasons, the appeal lacks merit and is accordingly dismissed. Pending application(s), if also stands dismissed. Bail bonds are ordered to be discharged.
(Tarlok Singh Chauhan) Judge (Chander Bhusan Barowalia) Judge 14 th December, 2017 (pankaj) ::: Downloaded on - 18/12/2017 23:03:42 :::HCHP