Himachal Pradesh High Court
State Of H.P vs Prem Singh on 7 December, 2023
Bench: Tarlok Singh Chauhan, Satyen Vaidya
IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA Cr. Appeal No. 81 of 2012.
.
Reserved on: 04.12.2023 Date of decision : 07.12.2023.
State of H.P. ...Appellant.
Versus
Prem Singh ...Respondent
Coram:
of
The Hon'ble Mr. Justice Tarlok Singh Chauhan, Judge. The Hon'ble Mr. Justice Satyen Vaidya, Judge.
For the appellant rt Whether approved for reporting?1 No : Mr. I. N. Mehta, Sr. Additional Advocate General, with Mr. Navlesh Verma, Ms. Sharmila Patial, Addl. A.Gs. and Mr. J.S. Guleria, Deputy Advocate General.
For the respondent : Mr. G. R. Palsra Advocate.
Satyen Vaidya, Judge By way of instant appeal, the State has assailed judgment dated 08.09.2011 passed by learned Presiding Officer, Fast Track Court, Mandi, H.P. in Sessions Trial No. 64 of 2009 whereby the respondent has been acquitted of charges under Sections 18 and 20 of the Narcotics Drugs 1 Whether reporters of Local Papers may be allowed to see the judgment?
::: Downloaded on - 07/12/2023 20:33:38 :::CIS -2-and Psychotropic Substances Act (for short, "the NDPS"
Act).
.
2. The respondent was charged for commission of offences under Sections 18 and 20 of the ND&PS Act with the allegation that on 20.7.2009 at about 6.00 P.M. the respondent was found in exclusive and conscious of possession of 1 Kg. 200 grams of opium and 850 grams of charas at place near Panarsa within the jurisdiction of rt Police Station Aut, District Mandi, H.P.
3. The case as set-up by the prosecution was that on 20.7.2009, PW-7 ASI Amar Nath alongwith PW-1 HC Dhani Ram and C. Ashok Kumar left Police Station, Aut at about 5.15 P.M. towards Panarsa. While carrying patrol duty on Panarsa - Jawalapur road, the police party apprehended respondent with his motorcycle bearing No.HP-32A-1184. The police got suspicious from the conduct of respondent and accordingly on search of the motorcycle of respondent, 850 grams of charas and 1 kg.
200 grams of opium was recovered from a place beneath the seat of the motorcycle. Charas and opium was lying in ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -3- two separate envelopes. The contraband was seized in two separate parcels, each sealed with six seals having .
impression "Y".
4. The recovery memo Ext. PW-1/B was prepared.
The facsimile of sample seal Ext. PW-1/A was preserved on separate piece of cloth. 'Rukka' Ext.PW-7/A was prepared of by ASI Amar Nath (PW-7) and was sent to the Police Station through C. Ashok rt Kumar. PW-5 Insp./SHO Sureshta Thakur registered FIR Ext. PW-5/A. The file was taken back to the spot. PW-7 ASI Amar Nath prepared the site plan Ext. PW-7/B and formally arrested the respondent vide memo Ext. PW-1/C.
5. The accused alongwith contraband was brought to the police station. PW-5 Insp./SHO Sureshta Thakur resealed the sealed articles with seal impression "M" affixed at five places on each parcel. The sample seal was preserved as Ext. PW-5/C. Re-sealing memo Ext. PW-5/E was prepared. The relevant columns of NCB form Ext. PW-
5/D were filled by PW-7 ASI Amar Nath and PW-5 Insp./SHO Sureshta Thakur.
::: Downloaded on - 07/12/2023 20:33:38 :::CIS -4-6. On 21.7.2009 special report Ext. PW-4/A was sent to Dy. S.P. Head Quarter, Mandi by ASI Amar Nath .
PW-7 through HHC Baldev Singh (PW-2).
7. On 22.7.2009, the sealed parcels containing contraband were sent by MHC Satya Parkash, PW-6, to SFSL, Junga through C. Sudeep Kumar (PW-3) alongwith of related articles and documents. The SFSL, Junga vide its report Ext. PX reported the samples analysed by it to be rt that of charas and opium.
8. On completion of investigation report under Section 173 Cr.P.C. was submitted. The respondent was charged as above. The prosecution examined total 8 witnesses. The respondent was examined under Section 313 Cr.P.C. No defence evidence was led. On completion of trial, the respondent was acquitted by learned Special Judge vide impugned judgment dated 08.09.2011, hence this appeal.
9. We have heard learned counsel for the parties and have also gone through the records of the case carefully.
::: Downloaded on - 07/12/2023 20:33:38 :::CIS -5-10. Learned Special Judge has acquitted the respondent firstly on the ground that despite opportunity .
available to the Investigating Officer, no independent witness was associated, secondly, that there were major contradictions in the versions put-forth by spot witnesses i.e. PW-1 HC Dhani Ram and PW-7 ASI Amar Nath, thirdly, of that the statement of Investigating Officer PW-7 was discrepant in respect of the case property and lastly that rt the reference to seal impression "X" in the records relied upon by the prosecution in reference to the sealing of the case property was antithetical to the prosecution story.
11. The case of the prosecution itself was that three police officials i.e. PW-1 HC Dhani Ram, C. Ashok Kumar and PW-7 ASI Amar Nath were on spot at the time of apprehension of respondent with contraband. Out of these three police officials, prosecution examined only PW-1 HC Dhani Ram and PW-7 ASI Amar Nath. C. Ashok Kumar was given up.
12. Admittedly, no independent witness was associated while carrying the search of the motorcycle.
::: Downloaded on - 07/12/2023 20:33:38 :::CIS -6-PW-1 HC Dhani Ram admitted in his cross-examination that the forest barrier was at a distance of 100 - 150 .
meters from the place of alleged recovery. He further stated that there was a bus stop and said place witnessed hustle bustle throughout the day. He further maintained that no serious effort was made by the Investigating Officer to of associate independent witness and neither PW-1 nor C. Ashok Kumar were sent in search of independent rt witness. PW-7 ASI Amar Nath admitted in his cross-
examination that village 'Patogi' with 10 - 12 houses was below the road where the respondent was apprehended.
Though, PW-7 ASI Amar Nath stated that he had sent C. Ashok Kumar for independent witnesses, but the statement of PW-1 on this aspect is contrary. Additionally, C. Ashok Kumar was given up as a witness. Thus, it is clear that though the Investigating Officer had an opportunity to associate the independent witnesses, but he had omitted to do so.
13. It is more than settled that non-association of independent witnesses in a case of chance recovery is not ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -7- always fatal to the prosecution case. The relevant parameter is whether the evidence of police officials is .
worth credence.
14. In Pramod Kumar vs. State (Government of NCT of Delhi) (2013) 6 SCC 588, Hon'ble Supreme Court has held as under: -
of "13. This Court, after referring to State of U.P. v. Anil Singh, State, Govt. of NCT of Delhi v. Sunil and another rt and Ramjee Rai and others v. State of Bihar, has laid down recently in Kashmiri Lal v. State of Haryana that there is no absolute command of law that the police officers cannot be cited as witnesses and their testimony should always be treated with suspicion. Ordinarily, the public at large show their disinclination to come forward to become witnesses. If the testimony of the police officer is found to be reliable and trustworthy, the court can definitely act upon the same. If, in the course of scrutinising the evidence, the court finds the evidence of the police officer as unreliable and untrustworthy, the court may disbelieve him but it should not do so solely on the presumption that a witness from the department of police should be viewed with distrust. This is also based on the principle that quality of the evidence weighs over the quantity of evidence."
15. In Sathyan vs. State of Kerala 2023 INSC 703, the legal position has been reiterated as under:-
"22. Conviction being based solely on the evidence of police officials is no longer an issue on which the jury is ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -8- out. In other words, the law is well settled that if the evidence of such a police officer is found to be reliable, trustworthy then basing the conviction thereupon, cannot .
be questioned and the same shall stand on firm ground...."
16. Reverting to the facts of the case, we have no hesitation in concurring with the findings recorded by of learned Presiding Officer, Fast Track Court, Mandi regarding the contradictions found in the statements of rt spot witnesses. According to PW-1 HC Dhani Ram, respondent was travelling from Panarsa side, whereas, according to PW-7 ASI Amar Nath, respondent had come from Jawalapur side. It was not the case of prosecution that Panarsa and Jawalapur fell in the same direction. PW-
1 HC Dhani Ram specifically stated that the Investigating Officer had not sent anybody in search of independent witness, whereas, PW-7 ASI Amar Nath stated that he had sent C. Ashok Kumar for the purpose. According to PW-1 the scale used for weighing the contraband was a table scale. On the contrary, PW-7 ASI Amar Nath maintained the same to be a traditional scale i.e. 'Taraju'.
::: Downloaded on - 07/12/2023 20:33:38 :::CIS -9-17. Another fact that has been taken into consideration by learned Presiding Officer is that PW-7 ASI .
Amar Nath while being cross-examined had stated that the shape of recovered charas was round ball shaped. When he was confronted with Charas Ex.P-4, he had to admit that it was in the shape of small sticks. Even the recovery memo of Ext. PW-1/B and 'Rukka' Ext. PW-7/A mentioned the recovered charas to be in the shape of (wicks) small sticks.
rt Such discrepant version of the witness, that too, who had investigated the case remained unexplained.
18. Further as per the prosecution case the seized charas and opium were sealed in two separate parcels each containing six seals having impression "Y". These parcels were further resealed by PW-5 Insp/SHO Sureshta Thakur with five seals of impression "M" each. However, 'Malkhana' register Ext. D-1 carried an entry, according to which, one sealed packet with seal impression "X"
containing 1 kg. 200 grams of opium was deposited in the 'Malkhana'. PW-5 Insp/SHO Sureshta Thakur had admitted such fact in her deposition. She further had ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -10- admitted reference to similar impression "X" on packets containing charas and opium. Noticeably, MHC PW-6 HC .
Satya Parkash was examined after the examination of Insp/SHO Sureshta Thakur as PW-5, but no explanation was sought from the MHC with respect to the entry in Ext.
D-1, i.e. extract of 'Malkhana' Register.
of
19. In light of above discussion, the gaps found in the prosecution case are clearly noticeable and could not rt be brushed aside. The contradictions and discrepancies as pointed above, are sufficient to create doubt in the prosecution case, therefore, the findings recorded by learned Presiding Officer, Fast Track Court, Mandi need no interference. In the aforesaid circumstances, the non-
association of independent witnesses despite opportunity to do so, also assumes significance.
20. It is trite that in appeal against acquittal, no interference is called for in case the view taken by learned trial Court is a possible one and its findings do not suffer from perversity. The accused always has a benefit of presumption of being innocent till proof of charges against ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -11- him beyond reasonable doubts. The acquittal by the learned trial Court doubles the strength of such .
presumption. The view taken by the learned trial Court in the instant case is a possible view and is borne out from the material on record. It is also not a case of perversity.
21. In Chandrappa and others vs. State of of Karnataka (2007) 4 SCC 415, it has been observed as under: rt "42. From the above decisions, in our considered view, the following general principles regarding powers of 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 ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -12- 'flourishes of language' to emphasize 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 available to him under the fundamental principle of criminal jurisprudence that every person shall be of 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 rt 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."
22. In State of Rajasthan vs. Kistoora Ram, 2022 SCC Online SC 984, the Hon'ble Supreme Court has observed as under:
"8. The scope of interference in an appeal against acquittal is very limited. Unless it is found that the view taken by the Court is impossible or perverse, it is not permissible to interfere with the finding of acquittal. Equally if two views are possible, it is not permissible to set aside an order of acquittal, merely because the Appellate Court finds the way of conviction to be more probable. The interference would be warranted only if the view taken is not possible at all."::: Downloaded on - 07/12/2023 20:33:38 :::CIS -13-
23. Similar reiteration of law can be found in Ravi Sharma vs. State (Government of NCT of Delhi) and .
another (2022) 8 SCC 536, the legal position by the Hon'ble Supreme Court has been reiterated as under:
"8. Before venturing into the merits of the case, we of would like to reiterate the scope of Section 378 of the Code of Criminal Procedure (for short 'Cr.P.C.') while deciding an appeal by the High Court, as the position of rt law is rather settled. We would like to quote the relevant portion of a recent judgment of this Court in Jafarudheen and Others v. State of Kerala (2022) 8 SCC 440 as follows: (SCC p. 454, para 25)
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."
9. This Court in the aforesaid judgment has noted the following decision while laying down the law:
(Jafarudheen case, SCC pp. 454-62, paras 26-27) ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -14- "Precedents:
26. Mohan vs. State of Karnataka, (2022) 12 SCC 619 .
as hereunder: (SCC paras 20-23) '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 of 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 rt 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 ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -15- 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 of 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 rt 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: (SCC pp. 182-85, para 14).
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 v. State of Kerala, [(2010) 9 SCC 189, SCC p.199) "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", ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -16- or if the finding so outrageously defies logic as to suffer from the vice of irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn. [(1984) 4 SCC .
635], Excise & Taxation Officer-cum-
Assessing Authority v. Gopi Nath & Sons [1992 Supp (2) SCC 312], Triveni Rubber & Plastics v. CCE [1994 Supp (3) SCC 665], Gaya Din v. Hanuman Prasad [(2001) 1 SCC 501], Arulvelu v. State, [(2009) 10 SCC 206] and Gamini Bala Koteswara Rao v. State of A.P. of [(2009) 10 SCC 636])."
It is further observed, after following the rtdecision of this Court in Kuldeep Singh v. Commr. of Police [(1999) 2 SCC 10], 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 v. State of Karnataka, [(2019) 5 SCC 436], 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: (Vijay Mohan Singh case, SCC pp. 447-49) "31. An identical question came to be considered before this Court in Umedbhai ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -17- Jadavbhai v. State of Gujarat, [(1978) 1 SCC 228]. 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: Umedbhai of Jadavbhai case, SCC p. 233) "10. Once the appeal was rightly rt entertained against the order of acquittal, the High Court was entitled to reappreciate the entievidence 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 v. State of Kerala, [(1998) 5 SCC 412], 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 ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -18- 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: (SCC p.416) '8. We have perused the judgment of under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly rt proceeded in the manner laid down by this Court in Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225] 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 ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -19- 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 of 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 rt 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 v. State of Kerala, [(1999) 3 SCC 309], 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 ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -20- 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 of manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions rt Judge.
31.3. In Atley v. State of U.P., [AIR 1955 SC 807], in para 5, this Court observed and held as under: (AIR pp. 809-10) "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, ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -21- 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 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 rt 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 [1951 SCC 1207]; Wilayat Khan v. State of U.P. [1951 SCC 898]. 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 v. State of A.P., [(1979) 1 SCC 355], this Court has observed that where the trial ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -22- 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."
27. N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as hereunder: (SCC pp. 695-99, of paras 20-21 & 23-24) '20. Mainly it is contended by Shri Nagamuthu, learned Senior Counsel rt 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] 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:
::: Downloaded on - 07/12/2023 20:33:38 :::CIS -23-(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 of before it may reach its own conclusion, both on questions of fact and of law.
rt (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 ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -24- 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 of the trial court."
21. Further in the judgment in Murugesan v. State, [(2012) 10 SCC 383] relied on by rt 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] 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 ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -25- 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) of "9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than rt 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, ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -26- 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 of 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 rt judgment, it can be said that acquittal is a "possible view". By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellant-accused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till 7.00 p.m."
24. Keeping in view the above exposition of law and facts of the case, no interference with the impugned ::: Downloaded on - 07/12/2023 20:33:38 :::CIS -27- judgment of acquittal dated 08.09.2011, passed by learned Presiding Officer, Fast Track Court, Mandi, H.P. in .
Sessions Trial No. 64 of 2009, is required. The appeal is accordingly dismissed.
25. Records be sent back forthwith.
of (Tarlok Singh Chauhan) Judge rt (Satyen Vaidya) 7th December, 2023 Judge (GR) ::: Downloaded on - 07/12/2023 20:33:38 :::CIS