Allahabad High Court
State Of Up vs Rajendra S/O Chunni Lal And 03 Others on 6 July, 2022
Author: Vivek Kumar Birla
Bench: Vivek Kumar Birla
HIGH COURT OF JUDICATURE AT ALLAHABAD AFR Court No. - 42 Case :- GOVERNMENT APPEAL No. - 294 of 2022 Appellant :- State of U.P. Respondent :- Rajendra S/O Chunni Lal And 03 Others Counsel for Appellant :- Shiv Kumar Pal Hon'ble Vivek Kumar Birla,J.
Hon'ble Vikas Bhudhwar,J.
(Delivered by Hon'ble Vikas Budhwar,J.)
1. This is an appeal under Section 378(3) Cr.P.C., 1973 (hereinafter referred as Cr.P.C., 1973) at the behest of State of U.P. instituted against the judgment and order of acquittal dated 9.2.2022 passed by Additional District and Sessions Judge, Court No. 3, Aligarh in Sessions Trial No. 943 of 2010 (State of U.P. vs. Rajendra and others) arising out of Case Crime No. 32 of 2009, under Section 302 and 201 IPC, Police Station Lodha, District Aligarh.
2. The factual matrix of the case as worded in the present appeal are that one Munna Lal s/o Munshi Lal resident of village Kadauli, Police Station Lodha, District Aligarh is a watchman of village Kadauli. According to the prosecution case the resident villagers had gone in the north side of the pitch road towards the land of the Land Management Committee for showering water whereat babool trees were planted and in the bushes so enclosing the babool tree they saw a dead body of unknown woman. On being apprised of the said event Munna Lal s/o Munshi Lal proceeded to the site of occurrence whereat he witnessed that an unknown woman was lying over there and a piece of cloth was tied on the neck in a form of a ring, which according to him was for strangulating her and there was a piece of cloth so scattered on the body, which was in burnt condition so as to consign her in flames. According to the prosecution he approached the concerned police station on 16.2.2009 for lodging of first information report. Record further reveals that that one Sri Dev Dutt Sharma s/o Net Ram Sharma resident of Sarsaul Masjid lane, Police Station Banna Devi, District Aligarh had approached the police station Lodha before the Station House Officer in District Aligarh with a statement that he had come to know while reading in a newspaper that a woman corpus was found. According to Dev Dutt Sharma s/o Net Ram Sharma he had gone to the mortuary, wherein he identified the lady as her mother-in-law and accordingly his wife being the daughter of the deceased being Smt. Tarawati on 16.2.2009 reported the matter before the Senior Superintendent of Police, Aligarh. As per the record the first information report was lodged against unknown persons, however, during course of the investigation the accused, who are four in number, were shown to have commissioned the crime and accordingly charge-sheet was submitted in Case Crime No. 32 of 2009 purported to be under Section 302 and 201 IPC.
3. In order to bring home the charges as many as following ten prosecution witnesses were examined:-
1.
Munna Lal P.W.-1
2. Rajendra P.W.-2
3. Anoop Kumar P.W.-3
4. Dev Dutt Sharma P.W.-4
5. Vishnu P.W.-5
6. S.I. Raj Kumar Singh P.W.-6
7. I.O. Ins. Jagpal Singh P.W.-7
8. Dr. Suresh Chandra Goel P.W.-8
9. S.I. Hariom Sharma P.W.-9
10. Ins. Madan Pal Singh P.W.-10
11. Veer Pal Singh P.W.-11
4. The following documentary evidence were exhibited to bring home charges:-
1.
Written Complaint Ex. A-1
2. Supurdginama Ex. A-2
3. Complaint of Dev Dutt Sharma Ex. A-3
4. First Information Report Ex. A-4
5. Copy of the report Ex. A-5
6. Site Plan Ex. A-6
7. Postmortem report Ex. A-7
8. Panchayatnama of the deceased Ex. A-8
9. Letter no. 33 of Cons.
Ex. A-9
10. Letter no. 13 Ex. A-10
11. Letter of the Incharge Officer, Photography Field Unit, Aligarh Ex. A-11
12. Letter of the Incharge Officer, Finger Print Bureau, Aligarh Ex. A-12
13. Letter of the Reserve Inspector Ex. A-13
14. Letter of C.M.O. Ex. A-14
15. Letter of Incharge Postmortem Incharge Ex. A-15
16. Photo Ex. A-16
17. Letter of Postmortem duty mortuary Ex. A-17
18. Charge-sheet Ex. A-18
5. The record further reveals that the medical report suggested that the deceased had sustained burn injuries on face, head, neck and upper portion of both the hands and redning was present but bulla (fafola) was not present. As per the internal examination of the deceased it was reported that the ribs, which was on the right hand of the chest was fractured and redness was found in the breathing pipe as well as in both the lungs. According to medical report the cause of death was strangulation and the duration of the death was 2-4 days prior to the postmortem, which was conducted on 17.2.2009. As per the prosecution version there was no eye witness to the crime. Consequent to the submission of the charge-sheet the charges were read over to the accused, who pleaded innocence and claimed to be tried. Defence was taken by the accused, who are four in number, that they have been unnecessary implicated in the said case.
6. We have heard Sri Ratan Singh, learned A.G.A. for the State and perused the record.
7. Before we embark on testimony and the judgment of the Court below, the contours for interfering in Criminal Appeals where accused has been held to be non guilty would be required to be discussed.
8. The principles, which would govern and regulate the hearing of an appeal by this Court against an order of acquittal, passed by the trial Court, have been very succinctly explained by the Apex Court in catena of decisions. In the case of Tota Singh and another vs. State of Punjab, reported in (1987) 2 SCC 529, the Hon'ble Apex Court in paragraph-6 has observed as under: -
"6. The High Court has not found in its judgment that the reasons given by the learned Sessions Judge for discarding the testimony of PW 2 and PW 6 were either unreasonable or perverse. What the High Court has done is to make an independent reappraisal of the evidence on its own and to set aside the acquittal merely on the ground that as a result of such reappreciation, the High Court was inclined to reach a conclusion different from the one recorded by the learned Sessions Judge. This Court has repeatedly pointed out that the mere fact that the appellate court is inclined on a reappreciation of the evidence to reach a conclusion which is at variance with the one recorded in the order of acquittal passed by the court below will not constitute a valid and sufficient ground for setting aside the acquittal. The jurisdiction of the appellate court in dealing with an appeal against an order of acquittal is circumscribed by the limitation that no interference is to be made with the order of acquittal unless the approach made by the lower court to the consideration of the evidence in the case is vitiated by some manifest illegality or the conclusion recorded by the court below is such which could not have been possibly arrived at by any court acting reasonably and judiciously and is, therefore, liable to be characterised as perverse. Where two views are possible on an appraisal of the evidence adduced in the case and the court below has taken a view which is a plausible one, the appellate court cannot legally interfere with an order of acquittal even if it is of the opinion that the view taken by the court below on its consideration of the evidence is erroneous."
9. Further, in the case of Ramesh Babulal Doshi vs. State of Gujarat, reported in (1996) 9 SCC 225, in paragraph 7, the Hon'ble Apex Court observed as under:
"7. Before proceeding further it will be pertinent to mention that the entire approach of the High Court in dealing with the appeal was patently wrong for it did not at all address itself to the question as to whether the reasons which weighed with the trial court for recording the order of acquittal were proper or not. Instead thereof the High Court made an independent reappraisal of the entire evidence to arrive at the above-quoted conclusions. This Court has repeatedly laid down that the mere fact that a 'view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then and then only reappraise the evidence to arrive at its own conclusions. In keeping with the above principles we have therefore to first ascertain whether the findings of the trial court are sustainable or not."
10. In the case of State of Rajasthan vs. State of Gujarat, reported in (2003) 8 SCC 180, in paragraph 7, the Hon'ble Apex Court observed as under:
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P.¹) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra², Ramesh Babulal Doshi v. State of Gujarat³ and Jaswant Singh v. State of Haryana."
11. In the case of State of Goa vs. Sanjay Thakran, reported in (2007) 3 SCC 755, in paragraph 15, the Hon'ble Apex Court observed as under:
"15. Further, this Court has observed in Ramesh Babulal Doshi v. State of Gujarat: (SCC p. 229, para 7) "7.... This Court has repeatedly laid down that the mere fact that a view other than the one taken by the trial court can be legitimately arrived at by the appellate court on reappraisal of the evidence cannot constitute a valid and sufficient ground to interfere with an order of acquittal unless it comes to the conclusion that the entire approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. While sitting in judgment over an acquittal the appellate court is first required to seek an answer to the question whether the findings of the trial court are palpably wrong, manifestly erroneous or demonstrably unsustainable. If the appellate court answers the above question in the negative the order of acquittal is not to be disturbed. Conversely, if the appellate court holds, for reasons to be recorded, that the order of acquittal cannot at all be sustained in view of any of the above infirmities it can then - and then only - reappraise the evidence to arrive at its own conclusions." and in State of Rajasthan v. Raja Ram8: (SCC pp. 186-87, para 7) -
"7. There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to reappreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not. (See Bhagwan Singh v. State of M.P.) The principle to be followed by the appellate court considering the appeal against the judgment of acquittal is to interfere only when there are compelling and substantial reasons for doing so. If the impugned judgment is clearly unreasonable, it is a compelling reason for interference. These aspects were highlighted by this Court in Shivaji Sahabrao Bobade v. State of Maharashtra 10, Ramesh Babulal Doshi v. State of Gujarat and Jaswant Singh v. State of Haryana11"."
12. Further in the case of Chandrappa and others vs. State of Karnataka, reported in (2007) 4 S.C.C. 415, the Apex Court has observed as under:
"42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate Court while dealing with an appeal against an order of acquittal emerge:
[1] An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded.
[2] The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
[3] Various expressions, such as,"substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtain extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasis the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion.
[4] An appellate Court, however, must bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court.
[5] If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.
13. In the case of Ghurey Lal vs. State of U.P., reported in (2008) 10 SCC 450, in paragraph 43 and 75, the Hon'ble Apex Court observed as under:
"43. The earliest case that dealt with the controversy in issue was Sheo Swarup v. King Emperor. In this case, the ambit and scope of the powers of the appellate court in dealing with an appeal against acquittal has been aptly a elucidated by the Privy Council. Lord Russell writing the judgment has observed as under (at AIR p. 230): (IA p. 404) "... the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses; (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he b has been acquitted at his trial; (3) the right of the accused to the benefit of any doubt; and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses."
The law succinctly crystallised in this case has been consistently followed by this Court. On proper analysis of the ratio and findings of this case, it is revealed that the findings of the trial court are based on the fundamental principles of the criminal jurisprudence. Presumption of innocence in favour of the accused further gets reinforced and strengthened by the acquittal of the trial court. The appellate court undoubtedly has wide powers of reappreciating and re-evaluating the entire evidence but it would be justified in interfering with the judgment of acquittal only when the judgment of the d trial court is palpably wrong, totally ill-founded or wholly misconceived, based on erroneous analysis of evidence and non-existent material, demonstrably unsustainable or perverse.
...
75. On careful analysis of the entire evidence on record, we are of the view that the reasons given by the High Court for reversing the judgment of acquittal is unsustainable and contrary to settled principles of law. The trial court has the advantage of watching the demeanour of the witnesses who have given evidence, therefore, the appellate court should be slow to interfere with the decisions of the trial court. An acquittal by the trial court should not be interfered with unless it is totally perverse or wholly unsustainable."
14. In the case of Siddharth Vashishtha Alias Manu Sharma vs. State (NCT of Delhi), reported in (2010) 6 SCC 1, in paragraph 303(1), the Hon'ble Apex Court observed as under:
"303. Summary of our conclusions:
(1) The appellate court has all the necessary powers to re-evaluate the evidence let in before the trial court as well as the conclusions reached. It has a duty to specify the compelling and substantial reasons in case it reverses the order of acquittal passed by the trial court. In the case on hand, the High Court by adhering to all the ingredients and by giving b cogent and adequate reasons reversed the order of acquittal. ..."
15. In the case of Babu vs. State of Kerala, reported in (2010) 9 SCC 189, in paragraph 12 and 19, the Hon'ble Apex Court observed as under:
"12. This Court time and again has laid down the guidelines for the High Court to interfere with the judgment and order of acquittal passed by the trial court. The appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. While dealing with a judgment of acquittal, the appellate court has to consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. The appellate court is entitled to consider whether in arriving at a finding of fact, the trial court had failed to take into consideration admissible evidence and/or had taken into consideration the evidence brought on record contrary to law. Similarly, wrong placing of burden of proof may also be a subject-matter of scrutiny by the appellate court. (Vide Balak Ram v. State of U.P.¹, Shambhoo Missir v. State of Bihar2, Shailendra Pratap v. State of U.P.3, Narendra Singh v. State of M.P.4, Budh Singh v. State of U.P.5, State of U.P. v. Ram Veer Singh6, S. Rama Krishna v. S. Rami Reddy7, Arulvelu v. State8, Perla Somasekhara Reddy v. State of A.P.9 and Ram Singh v. State of H.P.10).
...
19. Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial court's acquittal bolsters the presumption of his innocence. Interference in a routine manner where the other view is possible should be avoided, unless there are good reasons for interference."
16. In the case of Ganpat vs. State of Haryana, reported in (2010) 12 SCC 59, in paragraph 14 and 15, the Hon'ble Apex Court observed as under:
"14. The only point for consideration in these appeals is whether there is any ground for interference against the order of acquittal by the High Court. This Court has repeatedly laid down that the first appellate court and the High Court while dealing with an appeal is entitled and obliged as well to scan through and if need be reappreciate the entire evidence and arrive at a conclusion one way or the other.
15. The following principles have to be kept in mind by the appellate court while dealing with appeals, particularly, against an order of acquittal: (i) There is no limitation on the part of the appellate court to review the evidence upon which the order of acquittal is founded and to come to its own conclusion.
(ii) The appellate court can also review the trial court's conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it is the duty of the appellate court to marshal the entire evidence on record and by giving cogent and adequate reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when there are "compelling and substantial reasons" for doing so. If the order is "clearly unreasonable", it is a compelling reason for interference.
(v) When the trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of ballistic experts, etc. the appellate court is competent to reverse the decision of the trial court depending on the materials placed. (Vide Madan Lal v. State of J&K¹, Ghurey Lal v. State of U.P.2, Chandra Mohan Tiwari v. State of M.P.3 and Jaswant Singh v. State of Haryana4.)"
17. In the case of Sunil Kumar Sambhudayal Gupta (Dr.) and others vs. State of Maharashtra, reported in (2010) 13 SCC 657, in paragraph 38, 39 and 40, the Hon'ble Apex Court observed as under:
"38. It is a well-established principle of law, consistently reiterated and followed by this Court that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. Even though the appellate court is entitled to consider, whether in arriving at a finding of fact, the trial court had placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law; the appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be the more probable one. The trial court which has the benefit of watching the demeanour of the witnesses is the best judge of the credibility of the witnesses.
39. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right. Subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence in India. The nature of the offence, its seriousness and gravity has to be taken into consideration. The appellate court should bear in mind the presumption of innocence of the accused, and further, that the trial court's acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a casual or cavalier manner where the other view is possible should be avoided, unless there are good reasons for such interference.
40. In exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding material or by taking into consideration irrelevant/inadmissible material. A finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (See Balak Ram v. State of U.P.9, Shailendra Pratap v. State of U.P.10, Budh Singh v. State of U.P.11, S. Rama Krishna v. S. Rami Reddy¹2, Arulvelu v. State 13, Ram Singh v. State of H.P.14 and Babu v. State of Kerala¹5.)"
18. In the case of State of U.P. vs. Naresh, reported in (2011) 4 SCC 324, in paragraph 33 and 34, the Hon'ble Apex Court observed as under:
"33. We are fully aware of the fact that we are entertaining the appeal against the order of acquittal. Thus, the Court has to scrutinise the facts of the case cautiously and knowing the parameters fixed by this Court in this regard.
34. Every accused is presumed to be innocent unless his The presumption of innocence is a human right subject to the statutory exceptions. The said principle forms the basis of criminal jurisprudence in India. The law in this regard is well settled that while dealing with a judgment of acquittal, an appellate court must consider the entire evidence on record so as to arrive at a finding as to whether the views of the trial court were perverse or otherwise unsustainable. An appellate court must also consider whether the court below has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence or had taken into consideration evidence brought on record contrary to law? In exceptional cases, whether there are compelling circumstances and the judgment in appeal is found to be perverse, the appellate court can interfere with the order of acquittal. So, in order to warrant interference by the appellate court, a finding of fact recorded by the court below must be outweighed evidence or to suffer from the vice of guilt is proved. such finding if outrageously defies logic as irrationality. [Vide Babu v. State of Keralall and Sunil Kumar Sambhudayal Gupta (Dr.)8.]"
19. In the case of State of M.P. vs. Ramesh, reported in (2011) 4 SCC 786, in paragraph 15, the Hon'ble Apex Court observed as under:
"15. We are fully alive of the fact that we are dealing with an appeal against acquittal and in the absence of perversity in the said judgment and order, interference by this Court exercising its extraordinary jurisdiction, is not warranted. It is settled proposition of law that the appellate court being the final court of fact is fully competent to reappreciate, reconsider and review the evidence and take its own decision. Law does not prescribe any limitation, restriction or condition on exercise of such power and the appellate court is free to arrive at its own conclusion keeping in mind that acquittal provides for presumption in favour of the accused. The presumption of innocence is available to the person and in criminal jurisprudence every person is presumed to be innocent unless he is proved guilty by the competent court and there can be no quarrel to the said legal proposition that if two reasonable views are possible on the basis of the evidence on record, the appellate court should not disturb the findings of acquittal."
20. The Apex Court recently in Jayaswamy vs. State of Karnataka, (2018) 7 SCC 219, has laid down the principles for laying down the powers of appellate court in re-appreciating the evidence in a case where the State has preferred an appeal against acquittal, which read as follows:
"13. It is by now well settled that the Appellate Court hearing the appeal filed against the judgment and order of acquittal will not overrule or otherwise disturb the Trial Court's acquittal if the Appellate Court does not find substantial and compelling reasons for doing so. If the Trial Court's conclusion with regard to the facts is palpably wrong; if the Trial Court's decision was based on erroneous view of law; if the Trial Court's judgment is likely to result in grave miscarriage of justice; if the entire approach of the Trial Court in dealing with the evidence was patently illegal; if the Trial Court judgment was manifestly unjust and unreasonable; and if the Trial Court has ignored the evidence or misread the material evidence or has ignored material documents like dying declaration/report of the ballistic expert etc. the same may be construed as substantial and compelling reasons and the first appellate court may interfere in the order of acquittl. However, if the view taken by the Trial Court while acquitting the accused is one of the possible views under the facts and circumstances of the case, the Appellate Court generally will not interfere with the order of acquittal particularly in the absence of the aforementioned factors.
14. It is relevant to note the observations of this Court in the case of Ramanand Yadav vs. Prabhu Nath Jha & Ors., (2003) 12 SCC 606, which reads thus:
"21.There is no embargo on the appellate court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not."
21. The Apex Court recently in Jafarudheen & Ors. vs. State of Kerala, JT 2022(4) SC 445 has observed as under:-
"DISCUSSION Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking Section 378 of the Cr.PC, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Precedents:
Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder: -
"20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. Suffice it is to state that the Appellate Court shall remind itself of the role required to play, while dealing with a case of an acquittal.
21. Every case has its own journey towards the truth and it is the Court's role undertake. Truth has to be found on the basis of evidence available before it. There is no room for subjectivity nor the nature of offence affects its performance. We have a hierarchy of courts in dealing with cases. An Appellate Court shall not expect the trial court to act in a particular way depending upon the sensitivity of the case. Rather it should be appreciated if a trial court decides a case on its own merit despite its sensitivity.
22. At times, courts do have their constraints. We find, different decisions being made by different courts, namely, trial court on the one hand and the Appellate Courts on the other. If such decisions are made due to institutional constraints, they do not augur well. The district judiciary is expected to be the foundational court, and therefore, should have the freedom of mind to decide a case on its own merit or else it might become a stereotyped one rendering conviction on a moral platform. Indictment and condemnation over a decision rendered, on considering all the materials placed before it, should be avoided. The Appellate Court is expected to maintain a degree of caution before making any remark.
23. This court, time and again has laid down the law on the scope of inquiry by an Appellate court while dealing with an appeal against acquittal under Section 378 CrPC. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this court in Anwar Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under : (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179]) "20. The findings of fact recorded by a court can be held to be perverse if the findings have been arrived at by ignoring or excluding relevant material or by taking into consideration irrelevant/inadmissible material. The finding may also be said to be perverse if it is "against the weight of evidence", or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131], Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons [Excise & Taxation Officer-cum-Assessing Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [Triveni Rubber & Plastics v. CCE, 1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [Gaya Din v. Hanuman Prasad, (2001) 1 SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1 SCC (Cri) 288] and Gamini Bala Koteswara Rao v. State of A.P. [Gamini Bala Koteswara Rao v. State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC (Cri) 372] )"
It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. of Police [Kuldeep Singh v. Commr. of Police, (1999) 2 SCC 10 : 1999 SCC (L&S) 429], that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it, the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon, the conclusions would not be treated as perverse and the findings would not be interfered with.
14.3. In the recent decision of Vijay Mohan Singh [Vijay Mohan Singh v. State of Karnataka, (2019) 5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court [State of Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine Kar 10732] in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under:
"31. An identical question came to be considered before this Court in Umedbhai Jadavbhai [Umedbhai Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under:
''10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence.
This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.' 31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under:
''8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972] viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.' 31.2. In K. Ramakrishnan Unnithan [K. Ramakrishnan Unnithan v. State of Kerala, (1999) 3 SCC 309: 1999 SCC (Cri) 410], after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.
31.3. In Atley [Atley v. State of U.P., AIR 1955 SC 807 : 1955 Cri LJ 1653], in para 5, this Court observed and held as under:
''5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order.
It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the well-established rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence.
It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal.
If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State [Surajpal Singh v. State, 1951 SCC 1207 : AIR 1952 SC 52]; Wilayat Khan v. State of U.P. [Wilayat Khan v. State of U.P., 1951 SCC 898 : AIR 1953 SC 122]) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.' 31.4. In K. Gopal Reddy [K. Gopal Reddy v. State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305], this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule."
N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: -
"20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel appearing for the appellant that the view taken by the trial court is a "possible view", having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 CrPC, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325 has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) "42. From the above decisions, in our considered view, the following general principles regarding powers of the appellate court while dealing with an appeal against an order of acquittal emerge:
(1) An appellate court has full power to review, reappreciate and reconsider the evidence upon which the order of acquittal is founded.
(2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate court on the evidence before it may reach its own conclusion, both on questions of fact and of law.
(3) Various expressions, such as, "substantial and compelling reasons", "good and sufficient grounds", "very strong circumstances", "distorted conclusions", "glaring mistakes", etc. are not intended to curtail extensive powers of an appellate court in an appeal against acquittal. Such phraseologies are more in the nature of "flourishes of language" to emphasise the reluctance of an appellate court to interfere with acquittal than to curtail the power of the court to review the evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence is available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court."
21. Further in the judgment in Murugesan [Murugesan v. State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] relied on by the learned Senior Counsel for the appellant, this Court has considered the powers of the High Court in an appeal against acquittal recorded by the trial court. In the said judgment, it is categorically held by this Court that only in cases where conclusion recorded by the trial court is not a possible view, then only the High Court can interfere and reverse the acquittal to that of conviction. In the said judgment, distinction from that of "possible view" to "erroneous view" or "wrong view" is explained. In clear terms, this Court has held that if the view taken by the trial court is a "possible view", the High Court not to reverse the acquittal to that of the conviction.
xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., (2017) 5 SCC 719 : (2017) 2 SCC (Cri) 653 this court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the "possible view" of the trial court is not agreeable for the High Court, even then such "possible view" recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place."
24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m."
22. This Court had the occasion to consider the scope and the extent of interference in the cases, wherein this Court has to delve into the issues, which gets encompassed in the proceedings, where the judgment and the order under challenge is of acquittal and this Court in Government Appeal no. 3804 of 2001 (State of U.P. vs. Subedar and others), has held that it is a settled principle of law that while exercising powers even if two reasonable views/conclusions are possible on the basis of the evidence on record, the Appellate Court should not disturb the finding of acquittal recorded by the trial Court.
23. Recently, the Division Bench of this Court in the case of Virendra Singh vs. State of U.P. and others reported in 2022(3) ADJ 354 had held that while deciding appeals against acquittal, the High Court has to first record its conclusion on the question whether approach of the Trial Court dealing with the evidence was patently illegal or the conclusion arrived was based on no evidence or it was equated by perversity and in case two views are possible then the High Court should detain itself from the order of acquittal.
24. On the contours of the decisions, referred to hereinabove, as well as the legal proposition so culled out, the judgment of the Trial Court is to be scanned and scrutinized.
25. In the present case in hand the prosecution produced as many as eleven witnesses in order to bring home the charges. Sofar as P.W.-1 being Munna Lal is concerned, he had lodged the first information report on 16.2.2009 on the basis of information, which he received against unknown persons. P.W.-4, who happened to be the son-in-law of the deceased being Dev Dutt Sharma in his statement has come up with the stand that the deceased Smt. Ramshree used to stay with P.W.-4-Dev Dutt Sharma and in his examination-in-chief it was alleged that on 14.2.2009 the deceased Smt. Ramshree was approached by two unknown persons at 09 O'clock in the morning for the purpose of purchase of buffaloes and Smt. Ramshree being deceased proceeded with the aforementioned two unknown persons and did not return back despite constant search about her whereabouts. In the statement of P.W.-4-Dev Dutt Sharma it was stated that when the deceased did not return back to the house then on 16.2.2009 the wife of P.W.-4-Dev Dutt Sharma being Smt. Tarawati lodged a missing report on 16.2.2009 and the same was in the backdrop of the fact that P.W.-4-Dev Dutt Sharma read certain news in the newspaper, which according to him was referable to the discovery of a body of lady, which matched with his mother-in-law and accordingly, he went to the mortuary and identified the deceased.
26. The record further reveals that in the complaint so lodged before the police station by P.W.-4-Dev Dutt Sharma the accused was not marked so as to indicate the commission of the said offence and rather to the contrary the Exhibit 3 which happened to be a complaint also did not mention the fact that the deceased on 14.2.2009 had proceeded with two unknown persons at 09 O'clock for purchase of buffaloes. Sofar as P.W.-5 being Vishnu is concerned, he happens to son of P.W.-4-Dev Dutt Sharma and according to the deposition on 14.2.2009 at 09 O'clock in the morning one Santosh Kumar alongwith an unknown person had proceeded to his house and the mother-in-law of P.W.-4-Dev Dutt Sharma were with them. The record further reveals that P.W.-5, Vishnu is a student of 9th class. One of the other prosecution witness whose testimony is to be taken into account is Veer Pal Singh, who in his statement under Section 161 Cr.P.C., which Paper No. 13 on 6.7.2009 about four and a half month after lodging of the first information report has come up with the stand that one of the accused Rajendra, Smt. Meena and Santosh have given their extra judicial confession regarding commission of the crime. The testimony of the aforesaid prosecution witnesses was the basis for bringing home the charges while holding the accused guilty.
27. In order to delve into the question as to whether the order passed by the learned trial court acquitting the accused suffers from perversity or there is a strong case, which will lead to conviction of the accused, the relevant aspects of the matter needs to be considered.
28. The present case does not fall within the parameters of eye witness account as there is no witness, who had seen the commission of the crime by the accused. As a matter of fact, the deceased was staying with P.W.-4-Dev Dutt Sharma and the allegations so pointed out clearly shows that on 14.2.2009 two unknown persons approached the house of P.W.-4-Dev Dutt Sharma and took away the deceased in a motorcycle for the purpose of purchase of buffaloes.
29. Record further reveals that P.W.-4-Dev Dutt Sharma was not present at the time when the alleged incident took place. He was somewhere outside and the only witness, who saw and witnessed the fact that two unknown persons took away the deceased is P.W.-5, Vishnu. P.W.-5, Vishnu in his statement has deposed that on 14.2.2009 at 09 O'clock in the morning Santosh Kumar alongwith an unknown person took away the deceased. The said fact was not even mentioned in the complaint so lodged by the P.W.-4-Dev Dutt Sharma when the same was also recorded in the case diary on 18.2.2009. The record further reveals that on 7.6.2009 in Parcha No. 11 of the case diary, after a period of three and a half month the theory regarding taking away of the deceased from the house of P.W.-4-Dev Dutt Sharma was pointed out. It is also come on record that on 14.2.2009 in the house, P.W.-5-Vishnu and daughter of P.W.-4-Dev Dutt Sharma being Jaimala were present. The record further reveals that on 14.10.2009 after a period of eight months the Investigating Officer in case diary being Parcha No. 29-A recorded the fact that one Santosh Kumar and Pappu, who happened to be accused nos. 3 and 4 had come on 14.2.2009 in the house of P.W-4, Dev Dutt Sharma and took away the deceased. The said fact even did not find mention in the statement purported to be under Section 161 Cr.P.C. In the deposition of P.W.-5 being Vishnu he has stated in cross that he had narrated the fact to his father being P.W-4, Dev Dutt Sharma that the deceased was taken away by the accused no. 3 and others.
30. Another aspect, which needs to be noticed is that the accused no. 3 being Santosh Kumar s/o Ram Narain happened to be uncle of P.W.-5 and it is highly improbable that he would not recognize and forget the close relative.
31. This Court has also to bear in mind that on 14.2.2009 the deceased when missing from 09 O'clock in the morning, however, first information report with regard to the same is being lodged on 16.2.2009 after enormous delay. The learned trial court has meticulously analyzed the matter with regard to lodging of complaint / missing report after enormous delay as according to the learned trial court no explanation worth consideration has been offered in that regard besides other relevant factors for determination as to whether crime was committed or not.
32. Insofar as the element of motive is concerned for commission of the crime P.W.-4, Dev Dutt Sharma has deposed that motive existed for commission of the crime as the accused Rajendra and Smt. Meena wanted to take away the share proceeds of the land so disposed of by the deceased being eight and a half bigha. According to P.W.-4, Dev Dutt Sharma the deceased was living with her son-in-law and she had kept the sale proceeds to the tune of Rs. 6 lakhs in bank and post office, which became the eyesore. He has further deposed that the deceased has lodged complaint against the accused in police station Gabhana that the accused used to beat the deceased and thus he was under suspicion that the accused has abducted her and disposed her. Taking clue from the deposition of P.W.-4, Dev Dutt Sharma onething is to be noticed that the accused Rajendra and Meena are resident of village Kalua as well as P.W.-4, Dev Dutt Sharma with the deceased used to live in village Sarsaul, which are two different villages. Making bald and vague allegations while threatening and administer beating no details of the date and time had been indicated. Even in the complaint so sought to be lodged by the prosecution there is no recital of any enmity or even an allegation of beating and usurping of an amount of Rs. 6 lakhs. However, the said allegations saw the light of the day on 7.9.2009, which was reduced in writing in case diary Parcha No. 11 after a period of seven and a half month.
33. Coming to the deposition of P.W.-11, Veer Pal Singh, who has alleged that an extra judicial confession was sought to be made before him regarding commission of the crime and the same also got surfaced in Parcha No. 13 of the case diary on 6.7.2009 after four and a half month.
34. Extra judicial confession is a weak evidence and the same cannot be the sole ground to hold conviction until unless circumstantial evidence and other materials do indicate and mark that offence has been committed by the accused.
35. The Hon'ble Apex Court in the case of Mohd. Azad @ Samin vs. State of West Bengal, 2008 (15) SCC 449, in paragraphs 21 and 22 observed as under:-
21. A similar view was also taken in Jaswant Gir v. State of Punjab, 2005 (12) SCC 438 and Kusuma Ankama Rao's case, 2008 (13) SCC 257.
22. "18. Confessions may be divided into two classes i.e. judicial and extra- judicial. Judicial confessions are those which are made before a Magistrate or a court in the course of judicial proceedings. Extra-judicial confessions are those which are made by the party elsewhere than before a Magistrate or court. Extra-judicial confessions are generally those that are made by a party to or before a private individual which includes even a judicial officer in his private capacity. It also includes a Magistrate who is not especially empowered to record confessions under Section 164 of the Code of Criminal Procedure, 1973 (for short the `Code') or a Magistrate so empowered but receiving the confession at a stage when Section 164 of the Code does not apply. As to extra-judicial confessions, two questions arise: (i) were they made voluntarily? and (ii) are they true? As the section enacts, a confession made by an accused person is irrelevant in criminal proceedings, if the making of the confession appears to the court to have been caused by any inducement, threat or promise, (1) having reference to the charge against the accused person, (2) proceeding from a person in authority, and (3) sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. It follows that a confession would be voluntary if it is made by the accused in a fit state of mind, and if it is not caused by any inducement, threat or promise which has reference to the charge against him, proceeding from a person in authority. It would not be involuntary, if the inducement, (a) does not have reference to the charge against the accused person; or (b) it does not proceed from a person in authority; or (c) it is not sufficient, in the opinion of the court to give the accused person grounds which would appear to him reasonable for supposing that, by making it, he would gain any advantage or avoid any evil of a temporal nature in reference to the proceedings against him. Whether or not the confession was voluntary would depend upon the facts and circumstances of each case, judged in the light of Section 24 of the Indian Evidence Act, 1872 (in short 'Evidence Act'). The law is clear that a confession cannot be used against an accused person unless the court is satisfied that it was voluntary and at that stage the question whether it is true or false does not arise. If the facts and circumstances surrounding the making of a confession appear to cast a doubt on the veracity or voluntariness of the confession, the court may refuse to act upon the confession, even if it is admissible in evidence. One important question, in regard to which the court has to be satisfied with is, whether when the accused made the confession, he was a free man or his movements were controlled by the police either by themselves or through some other agency employed by them for the purpose of securing such a confession. The question whether a confession is voluntary or not is always a question of fact. All the factors and all the circumstances of the case, including the important factors of the time given for reflection, scope of the accused getting a feeling of threat, inducement or promise, must be considered before deciding whether the court is satisfied that in its opinion the impression caused by the inducement, threat or promise, if any, has been fully removed. A free and voluntary confession is deserving of the highest credit, because it is presumed to flow from the highest sense of guilt. (See R. v. Warickshall) It is not to be conceived that a man would be induced to make a free and voluntary confession of guilt, so contrary to the feelings and principles of human nature, if the facts confessed were not true. Deliberate and voluntary confessions of guilt, if clearly proved, are among the most effectual proofs in law. An involuntary confession is one which is not the result of the free will of the maker of it. So where the statement is made as a result of harassment and continuous interrogation for several hours after the person is treated as an offender and accused, such statement must be regarded as involuntary. The inducement may take the form of a promise or of a threat, and often the inducement involves both promise and threat, a promise of forgiveness if disclosure is made and threat of prosecution if it is not. (See Woodroffe's Evidence, 9th Edn., p. 284.) A promise is always attached to the confession alternative while a threat is always attached to the silence alternative; thus, in one case the prisoner is measuring the net advantage of the promise, minus the general undesirability of a false confession, as against the present unsatisfactory situation; while in the other case he is measuring the net advantages of the present satisfactory situation, minus the general undesirability of the confession against the threatened harm. It must be borne in mind that every inducement, threat or promise does not vitiate a confession. Since the object of the rule is to exclude only those confessions which are testimonially untrustworthy, the inducement, threat or promise must be such as is calculated to lead to an untrue confession. On the aforesaid analysis the court is to determine the absence or presence of an inducement, promise etc. or its sufficiency and how or in what measure it worked on the mind of the accused. If the inducement, promise or threat is sufficient in the opinion of the court, to give the accused person grounds which would appear to him reasonable for supposing that by making it he would gain any advantage or avoid any evil, it is enough to exclude the confession. The words "appear to him" in the last part of the section refer to the mentality of the accused.
19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made. The value of the evidence as to the confession depends on the reliability of the witness who gives the evidence. It is not open to any court to start with a presumption that extra-judicial confession is a weak type of evidence. It would depend on the nature of the circumstances, the time when the confession was made and the credibility of the witnesses who speak to such a confession. Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused, the words spoken to by the witness are clear, unambiguous and unmistakably convey that the accused is the perpetrator of the crime and nothing is omitted by the witness which may militate against it. After subjecting the evidence of the witness to a rigorous test on the touchstone of credibility, the extra-judicial confession can be accepted and can be the basis of a conviction if it passes the test of credibility."
36. In the case of Sansar Chand vs. State of Rajasthan 2010 (10) SCC 604, Hon'ble Apex Court in paragraph 29 observed as under:-
"29. There is no absolute rule that an extra judicial confession can never be the basis of a conviction, although ordinarily an extra judicial confession should be corroborated by some other material vide Thimma vs. The State of Mysore - AIR 1971 SC 1871, Mulk Raj vs. The State of U.P. - AIR 1959 SC 902, Sivakumar vs. State by Inspector of Police - AIR 206 SC 563 (para 41 & 42), Shiva Karam Payaswami Tewar vs. State of Maharashtra - AIR 2009 SC 1692, Mohd. Azad vs. State of West Bengal - AIR 2009 SC 1307."
37. Further, in the case of Sahadevan and another vs. State of Tamilnadu 2012 (6) SCC 403, Hon'ble Apex Court in paragraphs 14 to 16 observed as under:-
14. It is a settled principle of criminal jurisprudence that extra-judicial confession is a weak piece of evidence. Wherever the Court, upon due appreciation of the entire prosecution evidence, intends to base a conviction on an extra- judicial confession, it must ensure that the same inspires confidence and is corroborated by other prosecution evidence. If, however, the extra- judicial confession suffers from material discrepancies or inherent improbabilities and does not appear to be cogent as per the prosecution version, it may be difficult for the court to base a conviction on such a confession. In such circumstances, the court would be fully justified in ruling such evidence out of consideration.
15. Now, we may examine some judgments of this Court dealing with this aspect.
15.1. In Balwinder Singh v. State of Punjab [1995 Supp. (4) SCC 259], this Court stated the principle that an extra-judicial confession, by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution. Where an extrajudicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance.
15.2. In Pakkirisamy v. State of T.N. [(1997) 8 SCC 158], the Court held that:
"8. .... It is well settled that it is a rule of caution where the court would generally look for an independent reliable corroboration before placing any reliance upon such extra-judicial confession."
15.3. Again in Kavita v. State of T.N. [(1998) 6 SCC 108], the Court stated the dictum that:
"4. There is no doubt that conviction can be based on extrajudicial confession, but it is well settled that in the very nature of things, it is a weak piece of evidence. It is to be proved just like any other fact and the value thereof depends upon veracity of the witnesses to whom it is made."
15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in the case of State of Rajasthan v. Raja Ram [(2003) 8 SCC 180] stated the principle that:
"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made.
The Court, further expressed the view that:
"19. .... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused....."
15.5. In the case of Aloke Nath Dutta v. State of W.B. [(2007) 12 SCC 230], the Court, while holding the placing of reliance on extra-judicial confession by the lower courts in absence of other corroborating material, as unjustified, observed:
"87. Confession ordinarily is admissible in evidence. It is a relevant fact. It can be acted upon. Confession may under certain circumstances and subject to law laid down by the superior judiciary from time to time form the basis for conviction. It is, however, trite that for the said purpose the court has to satisfy itself in regard to: (i) voluntariness of the confession; (ii) truthfulness of the confession; (iii) corroboration.
X
89. A detailed confession which would otherwise be within the special knowledge of the accused may itself be not sufficient to raise a presumption that confession is a truthful one. Main features of a confession are required to be verified. If it is not done, no conviction can be based only on the sole basis thereof."
15.6. Accepting the admissibility of the extra-judicial confession, the Court in the case of Sansar Chand v. State of Rajasthan [(2010) 10 SCC 604] held that :-
"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimma Raju v. State of Mysore, Mulk Raj v. State of U.P., Sivakumar v. State (SCC paras 40 and 41 : AIR paras 41 & 42), Shiva Karam Payaswami Tewari v. State of Mahasrashtra and Mohd. Azad v. State of W.B.]
30. In the present case, the extra-judicial confession by Balwan has been referred to in the judgments of the learned Magistrate and the Special Judge, and it has been corroborated by the other material on record. We are satisfied that the confession was voluntary and was not the result of inducement, threat or promise as contemplated by Section 24 of the Evidence Act, 1872."
15.7. Dealing with the situation of retraction from the extra-judicial confession made by an accused, the Court in the case of Rameshbhai Chandubhai Rathod v. State of Gujarat [(2009) 5 SCC 740], held as under :
"53. It appears therefore, that the appellant has retracted his confession. When an extra-judicial confession is retracted by an accused, there is no inflexible rule that the court must invariably accept the retraction. But at the same time it is unsafe for the court to rely on the retracted confession, unless, the court on a consideration of the entire evidence comes to a definite conclusion that the retracted confession is true."
15.8. Extra-judicial confession must be established to be true and made voluntarily and in a fit state of mind. The words of the witnesses must be clear, unambiguous and should clearly convey that the accused is the perpetrator of the crime. The extra-judicial confession can be accepted and can be the basis of conviction, if it passes the test of credibility. The extra-judicial confession should inspire confidence and the court should find out whether there are other cogent circumstances on record to support it. [Ref. S.K. Yusuf v. State of W.B. [(2011) 11 SCC 754] and Pancho v. State of Haryana [(2011) 10 SCC 165].
The Principles
16. Upon a proper analysis of the above-referred judgments of this Court, it will be appropriate to state the principles which would make an extra- judicial confession an admissible piece of evidence capable of forming the basis of conviction of an accused. These precepts would guide the judicial mind while dealing with the veracity of cases where the prosecution heavily relies upon an extra-judicial confession alleged to have been made by the accused:
i) The extra-judicial confession is a weak evidence by itself. It has to be examined by the court with greater care and caution.
ii) It should be made voluntarily and should be truthful.
iii) It should inspire confidence.
iv) An extra-judicial confession attains greater credibility and evidentiary value, if it is supported by a chain of cogent circumstances and is further corroborated by other prosecution evidence.
v) For an extra-judicial confession to be the basis of conviction, it should not suffer from any material discrepancies and inherent improbabilities.
vi) Such statement essentially has to be proved like any other fact and in accordance with law."
38. Further, in the case of Ram Lal vs. State of Himachal Pradesh 2019 (17) SCC 411, Hon'ble Apex Court in paragraphs 13 to 15 observed as under:-
"13. Extra-judicial confession is a weak piece of evidence and the court must ensure that the same inspires confidence and is corroborated by other prosecution evidence. In order to accept extra-judicial confession, it must be voluntary and must inspire confidence. If the court is satisfied that the extra-judicial confession is voluntary, it can be acted upon to base the conviction. Considering the admissibility and evidentiary value of extra-judicial confession, after referring to various judgments, in Sahadevn and another vs. State of Tamilnadu (2012) 6 SCC 403, this court held as under:-
"15.1. In Balwinder Singh v. State of Punjab 1995 Supp (4) SCC 259 this Court stated the principle that:
"10. An extra-judicial confession by its very nature is rather a weak type of evidence and requires appreciation with a great deal of care and caution.Where an extra-judicial confession is surrounded by suspicious circumstances, its credibility becomes doubtful and it loses its importance."
15.4. While explaining the dimensions of the principles governing the admissibility and evidentiary value of an extra-judicial confession, this Court in State of Rajasthan v. Raja Ram (2003) 8 SCC 180 stated the principle that:
"19. An extra-judicial confession, if voluntary and true and made in a fit state of mind, can be relied upon by the court. The confession will have to be proved like any other fact. The value of the evidence as to confession, like any other evidence, depends upon the veracity of the witness to whom it has been made." The Court further expressed the view that:
"19. ... Such a confession can be relied upon and conviction can be founded thereon if the evidence about the confession comes from the mouth of witnesses who appear to be unbiased, not even remotely inimical to the accused, and in respect of whom nothing is brought out which may tend to indicate that he may have a motive of attributing an untruthful statement to the accused...."
15.6. Accepting the admissibility of the extra-judicial confession, the Court in Sansar Chand v. State of Rajasthan (2010) 10 SCC 604 held that:
"29. There is no absolute rule that an extra-judicial confession can never be the basis of a conviction, although ordinarily an extra-judicial confession should be corroborated by some other material. [Vide Thimma and Thimaa Raju v. State of Mysore (1970) 2 SCC 105, Mulk Raj v. State of U.P. AIR 1959 SC 902, Sivakumar v. State of Inspector of Police (2006) 1 SCC 714 (SCC paras 40 and 41 : AIR paras 41 and 42), Shiva Karam Pavaswami Tewari v. State of Maharashtra (2009) 11 SCC 262 and Mohd. Azad alias Shamin v. State of W.B. (2008) 15 SCC 449]"
14. It is well settled that conviction can be based on a voluntarily confession but the rule of prudence requires that wherever possible it should be corroborated by independent evidence. Extra-judicial confession of accused need not in all cases be corroborated. In Madan Gopal Kakkad v. Naval Dubey and another (1992) 3 SCC 204, this court after referring to Piara Singh and others v. State of Punjab (1977) 4 SCC 452 held that the law does not require that the evidence of an extra-judicial confession should in all cases be corroborated. The rule of prudence does not require that each and every circumstance mentioned in the confession must be separately and independently corroborated.
15. As discussed above, if the court is satisfied that if the confession is voluntary, the conviction can be based upon the same. Rule of Prudence does not require that each and every circumstance mentioned in the confession with regard to the participation of the accused must be separately and independently corroborated. In the case at hand, as pointed out by the trial court as well as by the High Court, R.K. Soni (PW-2) and R.C. Chhabra (PW-3) were the senior officers of the bank and when they reached the bank for inspection on 23.04.1994, the accused submitted his confessional statement (Ex.-PW-2/A). Likewise, in the enquiry conducted by R.C. Chhabra (PW-3), the accused had given confession statement (Ex.-PW-3/A)."
39. The law so crystallized by Hon'ble Apex Court in the matters of extra judicial confession itself envisages that it is a weak evidence and it is to be supported by other factors like last seen theory, eye account, testimony, circumstantial evidence and motive. Here in the present case, the chain to link the accused while commissioning the said crime is nowhere connected. Even otherwise, sofar as P.W-11, Veer Pal Singh is concerned, he had stated that the accused Rajendra has made an extra judicial confession before him that he has committed the crime but there happens to be no relationship between them so as to occasion the accused Rajendra to disclose and give details regarding commission of crime.
40. Apart from the same, no recovery whatsoever was made from the accused. The entire prosecution case, which starts from putting the proceeding under motion while lodging first information report or complaint does not contain any of the allegations referable to the commission of the crime by the accused. However, improvements have been sought to be made that too after lodging of first information report during the course of the investigation by adding certain things, which ought to have been the basis for lodging of the proceedings at the stage of first information report or complaints.
41. This Court after meticulously analysing the case in hand from the four corners of law while applying them to the facts of the case is not able to subscribe to the argument so sought to be raked up by learned A.G.A. as this Court finds that the trial court has not committed any perversity in acquitting the accused.
42. Moreover, this Court finds that the chain to link the accused while commissioning the crime itself is missing and the evidence so sought to be pressed into service, which includes testimony of the prosecution witness itself is weak. This Court further finds inability to take a different view from the view so taken by learned trial court as obviously while deciding the present case, which originates in a shape of an appeal from the order of acquittal cannot be stretched too far so as to even take a view once the view taken by the learned trial court is plausible. Nonetheless, presumption of double innocence is already available with the accused and in view of law laid down by Hon'ble Apex Court as referred to above this Court is not in a position to interfere with the findings so recorded by the learned trial court while acquitting the accused persons.
43. We, therefore, find that it is not a case worth granting leave to appeal. The application for granting leave to appeal is rejected.
44. Since the the application for granting leave to appeal has not been granted, the appeal also stands dismissed.
Order Date :- 6.7.2022 Lalit Shukla (Vikas Budhwar,J.) (Vivek Kumar Birla,J.)