Anwar Ali vs The State Of Himachal Pradesh on 25 September, 2020


Try out our Premium Member services: Virtual Legal Assistant, Query Alert Service and an ad-free experience. Free for one month and pay only if you like it.

Supreme Court of India

Anwar Ali vs The State Of Himachal Pradesh on 25 September, 2020

Author: Ashok Bhushan

Bench: Ashok Bhushan, R. Subhash Reddy, M.R. Shah

                                                             REPORTABLE
                                    IN THE SUPREME COURT OF INDIA
                                    CRIMINAL APPELLATE JURISDICTION
                                    CRIMINAL APPEAL NO. 1121 OF 2016


         Anwar Ali and another                                    …Appellants


                                        Versus


         The State of Himachal Pradesh                            …Respondents




                                             JUDGMENT

M.R. SHAH, J.

Feeling aggrieved and dissatisfied with the impugned

judgment and order dated 20.09.2016 passed by the High Court

of Himachal Pradesh in Criminal Appeal No. 464 of 2012, by

which the High Court has allowed the said appeal preferred by

the respondent – The State of Himachal Pradesh and has
Signature Not Verified

Digitally signed by

reversed the judgment and order of acquittal passed by the
MEENAKSHI KOHLI
Date: 2020.09.25
17:05:28 IST
Reason:

learned trial Court and consequently has convicted the

1
appellants – original accused for the offences punishable under

Sections 302 read with 34, 392, 201 and 420, IPC and has

sentenced the appellants herein – original accused to undergo life

imprisonment for the offences punishable under Section 302 read

with 34, IPC, the appellants – original accused have preferred the

present appeal.

2. That the appellants herein – original accused were charged

for the offences punishable under Sections 302 read with 34,

392, 420 and 201, IPC for having committed the murder of one

Deepak. That the dead body of the deceased was found on

2.9.2010 near bypass Bihali Road, Chandigarh. That the dead

body was seen by one Jashwinder Singh, PW4, who informed the

police station, Bhunter. On receiving such information, the

police came on the spot; recorded the statement of PW4; prepared

Rukka and sent the same through Constable Pushparaj, PW2 to

police station, Bhunter. FIR was registered by Head Constable

Tara Chand. That the dead body was identified by the father of

the deceased. The investigating officer, PW18 conducted the

investigation. The dead body was sent for post mortem.

2
SHO/SI Narayan received a secret information on 5.9.2010

that one vehicle (jeep) was lying at Chandigarh in abandoned

condition. IO along with the other police officers went to

Chandigarh and recovered the abandoned vehicle from Sector

45C, Chandigarh. On checking the jeep, one envelope was found

to have been recovered containing mobile phone, three

photographs and the documents of the vehicle were lying on the

dash board of the jeep. IO took into possession the vehicle and

the documents vide memo. IO dialled from recovered mobile to

his own mobile and the number was detected as 9805523262.

From the recovered photographs, the accused were searched at

place Pandoh Bajaura Aut. Both the accused were arrested on

8.9.2010. During the investigation, the IO recovered the crates

from Punjab. IO also recovered one knife and the rope on

09.09.2010, alleged to have been used in commission of the

offence. After conclusion of the investigation, IO filed

chargesheet against the accused persons for the aforesaid

offences.

3
2.1 To prove the case against the accused, the prosecution

examined in all 9 witnesses, out of 19 witnesses shown in the

chargesheet, details of which are given below:

Sl.No     Name

.

01. Biri Singh (attesting witness on recovery of cloths) (Ex.

          P.W. 2/C & Ex. P.W.2/D)
02        Dinesh Singh (attesting witness on recovery of Jeep,
          photographs, Mobile) Ex. P.W. 1/A
03.       Lucky (witness on recovery of clothes)
04        Subhash (Father of deceased)
05        Rampal, witness of disclosure statement as per PW3
06        Niranjan Singh

He was attesting witness on the seizure of crates from
Ropar (Ext. P.W. 1/B)
07 Jyoti Kumar, Witness on recovery of crates from Ropar
08 Rajendra Kohli + Sushil Kumar
09 H.C. Pune Ram

The prosecution also brought on record the documentary

evidence of the aforesaid witnesses. After conclusion of the

recording of the evidence, statement of the accused persons

under Section 313, Cr.P.C. were recorded.

Before the trial Court, the prosecution mainly relied upon

the disclosure statements, recovery of vehicle (jeep), recovery of

knife and rope from the spot, recovery of mobile and photographs

(from the jeep). Before the trial Court, the case was based on

4
circumstantial evidence as there was no direct evidence. That on

appreciation of evidence on record, both oral as well as

documentary, the learned trial Court by a detailed reasoning did

not believe the disclosure statements, recovery of knife and rope

alleged to have been used for commission of the offence, recovery

of mobile and the recovery of photographs from the jeep. That on

appreciation of evidence, the learned trial Court found that the

prosecution withheld the material information with respect to the

sniffer dogs and on appreciation of evidence found that the

recoveries were made earlier and the panchnama of the same

were prepared subsequently on which PW5 and PW6 put their

signatures. Having found that the prosecution has failed to

establish and prove the complete chain of events and that it was

a case of circumstantial evidence, by a detailed judgment and

order, the learned trial Court acquitted both the accused for the

offences for which they were tried.

2.2 On appeal by the State, by the impugned judgment and

order, the High Court has reversed the judgment and order of

acquittal passed by the learned trial Court and consequently has

convicted the accused for the offences punishable under

5
Sections, 302 read with 34, 392, 420 and 201, IPC. By the

impugned judgment and order, the High Court has sentenced the

appellants – original accused to undergo life imprisonment for the

offence under Section 302 read with 34, IPC. The High Court has

also sentenced the appellants to undergo rigorous imprisonment

for a period of seven years and to pay a fine of Rs.25,000/­ each

for the offence under Section 392, IPC, and in default of payment

of fine, further rigorous imprisonment for a period of three

months. The High Court has also sentenced the appellants to

undergo rigorous imprisonment for a period of seven years and to

pay a fine of Rs.10,000/­ each for the offence under Section 420,

IPC, and in default of payment of fine, further rigorous

imprisonment for a period of three months. The High Court has

also sentenced the appellants to undergo rigorous imprisonment

for a period of two years and to pay a fine of Rs.5,000/­ each for

the offence under Section 201, IPC, and in default of payment of

fine, further rigorous imprisonment for a period of three months.

However, all the sentences were directed to run concurrently.

2.3 Feeling aggrieved and dissatisfied with the impugned

judgment and order passed by the High Court in reversing the

6
judgment and order of acquittal and convicting the appellants for

the aforesaid offences, the appellants­original accused have

preferred the present appeal.

3. Learned counsel appearing on behalf of the appellants­

accused has made the following submissions:

i) that the High Court has exceeded in its jurisdiction in

reversing the well­reasoned judgment and order of acquittal

passed by the learned trial Court and consequently

convicting the accused;

ii) that the High Court has reversed the judgment of the

acquittal on suspicion, surmises and conjectures;

iii) that the learned trial Court, as such, committed no

error in acquitting the accused;

iv) that the learned trial Court on appreciation of evidence

disbelieved the recovery of knife and rope at the instance of

the accused and it was held that a very important link of the

chain was missing;

v) that the learned trial Court gave a specific finding on

appreciation of evidence on doubtful disclosure statements;

7

vi) that the High Court has failed to appreciate and

consider that the knife, which is alleged to have been

recovered on the disclosure statements of the accused

persons, had already been recovered on 2.9.2010 with the

help of sniffer dogs, which was established from the evidence

of PW4 and PW5;

vii) that the High Court ought to have appreciated that the

recovery of knife and rope alleged to have been recovered on

the disclosure statements of the accused persons on

09.09.2010 was concocted one and to fill up the gaps in the

prosecution case;

viii) that even the recovery of photographs, mobile phone of

PW7 and the jeep from Chandigarh on 6.9.2010 is itself very

doubtful, which came to be considered in detail by the

learned trial Court;

ix) that even the conduct of Bhuntar police and the IO in

not informing or taking help of the jurisdictional police and

Chandigarh police while conducting investigation in those

areas, as required under Section 166(3) Cr.P.C. and other

8
lapses has made the entire prosecution case full of doubts

and suspicious;

x) that even the IO has not tried to examine any

independent witness of Chandigarh, though several people

were there at the time of recovery;

xi) that even the recovery of mobile of PW7 is very

doubtful. The IO never tried to find out the call details of

recovered mobile. Even he did not look into call­log of the

mobile himself in order to find out the contact details of the

real culprits. Even the IO did not enquire that after robbing

the mobile of PW7, who were the persons contacted by the

miscreants; how was the mobile used by the accused;

whether the mobile was taken to Ropar by the accused; who

were the persons taking mobile to Chandigarh and kept in

the jeep with the photographs of the appellants? All these

questions could have been easily solved from the call­log/call

details of the mobile if it was really stolen and recovered from

the jeep;

xii) that even the prosecution has not examined the best

material witnesses like Biri Singh, Dinesh Singh, Lucky,

9
Subash (the father of the deceased), Ram Pal, Niranjan Singh

and Jyoti Kumar. It is submitted that non­examination of

material witnesses on recovery and seizure memos has

proved fatal for the prosecution and has created serious

doubts on the prosecution case. It is submitted that there is

absolutely no reason as to why these material witnesses were

not examined by the prosecution, and most of the police

witnesses only were produced in the court, It is submitted

that non­examination of material witnesses is fatal for the

prosecution;

xiii) that it is an admitted position that it is a case of

circumstantial evidence. Therefore, before convicting the

accused, the prosecution has to prove the complete chain of

events which will lead to the only conclusion that it is the

accused who alone has committed the offence. It is

submitted that in the present case the prosecution as such

has failed to complete the chain of events; and

xiv) that there are material contradictions and even the

recovery of jeep, knife and rope, photographs from the jeep,

as observed and held by the learned trial Court, is doubtful

10
and creates serious doubts and therefore the learned trial

Court rightly acquitted the accused, which ought not to have

interfered with by the High Court.

3.1 Making the above submissions and taking us to the

deposition of PW4, PW5 and PW18 and relying upon the

decisions of this Court in the cases of Babu v. State of Kerala,

(2010) 9 SCC 189; Bannareddy v. State of Karnataka (2018) 5

SCC 790; State of Rajasthan v. Mukesh Kumar alias Mahesh

Dhaulpuria (2019) 7 SCC 678; and State of Rajasthan v. Madan

alias Madaniya, (2019) 13 SCC 653, it is prayed to allow the

present appeal and set aside the impugned judgment and order

passed by the High Court and restore the well­reasoned

judgment and order of acquittal passed by the learned trial

Court.

4. The present appeal is vehemently opposed by the learned

counsel appearing on behalf of the respondent – State of

Himachal Pradesh.

4.1 It is submitted that in the present case the High Court has

after re­appreciation of entire evidence on record, found the

accused guilty for the unnatural death of Deepak Kumar

11
deceased. It is submitted that as such the re­appreciation of the

entire evidence by the first appellate court is permissible;

4.2 It is submitted that the High Court, on re­appraisal of the

entire evidence on record, has considered the following

circumstances pointing to the guilt of the accused:

a) recovery of jeep, mobile phone and photographs from
Chandigarh

b) recovery of weapon of offence on the disclosure
statement of appellant no.1 – Anwar Ali

c) recovery of crates on the disclosure statement of
appellant no.1 – Anwar Ali

d) recovery of clothes of accused

e) medical evidence

f) no defence evidence led

4.3 It is submitted that the High Court has given cogent reasons

while considering the afore­stated circumstances against the

accused. It is submitted that the High Court has convicted the

accused on re­appreciation of the entire evidence on record, more

particularly the deposition of PW1, PW3, PW4, PW5, PW11 and

PW18.

4.4 Now so far as the submission on behalf of the accused on

non­examination of independent witnesses at the time of recovery

and non­compliance of the provisions of Section 100(4) Cr.P.C.

and other related provisions is concerned, it is submitted by the

12
learned counsel appearing on behalf of the respondent­State that

the persons who were gathered at the time of recovery were mere

spectators and none had come forward to act as a witness in the

matter.

It is submitted that even otherwise as held by this Court in

the case of Ronny v. State of Maharashtra, (1998) 3 SCC 625 that

even if the witness has been brought by the investigating agency

along with them, they cannot be disbelieved only on that ground.

4.5 In the alternative, it is submitted by the learned counsel

appearing on behalf of the respondent­State that non­compliance

of the directory provisions contained in Section 100 Cr.P.C. can

at the most be treated as defective investigation but that cannot

come in the way of dispensation of justice. Heavy reliance is

placed upon the decision of this Court in the case of C.

Muniappan v. State of Tamil Nadu, (2010) 9 SCC 567 (para 55).

It is submitted that as held by this Court in the case of

State of Punjab v. Balbir Singh, (1994) 3 SCC 299 (para 6), a

defective investigation if any does not vitiate the trial. It is

submitted that as held by this Court in the case of Sudha

Renukaiah v. State of Andhra Pradesh, (2017) 13 SCC 81, in

13
which the decision in the case of Muniappan (supra) was relied

upon, that even if the IO has committed any error and has been

negligent in carrying out any investigation or in the investigation

there is some omission and defect, it is the legal obligation on the

part of the court to examine the prosecution evidence de hors

such lapses.

4.5 It is further submitted that in the present case the recovery

of weapon of offence; recovery of jeep; recovery of photographs

and the stolen mobile phone of PW7; recovery of crates have been

established and proved by the prosecution beyond doubt by

examining the relevant witnesses, which as such, were not

believed by the learned trial Court for minor contradictions. It is

submitted that therefore the order of acquittal passed by the

learned trial Court warranted interference by the High Court.

4.6 Now so far as the submission on behalf of the accused that

in the present case the High Court has committed a grave error

in interfering with the order of acquittal passed by the learned

trial Court is concerned, it is submitted that in the present case

of circumstantial evidence, the factum probandum or the primary

fact stands established and having regard to the common cause

and natural events and to human conduct and their relations,

14
the complete chain of circumstances indicating the guilt of the

accused is established. Reliance is placed upon the decision of

this Court in the case of G. Parshwanath v. State of Karnataka,

(2010) 8 SCC 593 (paragraphs 22 to 24).

Heavy reliance is also placed on the recent decision of this

Court in the case of Vijay Mohan Singh v. State of Karnataka,

(2019) 5 SCC 436, paragraphs 30, 31. 31.1, 31.2, 31.3, 31.4 and

32 of the said decision. It is submitted that in the aforesaid

decision, after considering the entire law on interference by the

High Court with an order of acquittal, it is observed and held that

once the appeal is entertained against the order of acquittal, the

High Court would be entitled to re­appreciate the entire evidence

independently and come to its own conclusion. However,

ordinarily, the High Court would give due importance to the

opinion of the Sessions Judge if the same was arrived at after

proper appreciation of the evidence. It is submitted that it is

further observed that where the Sessions Judge has absolutely

made a wrong assumption of a very material and clinching aspect

in the peculiar circumstances of the case and if the High Court is

satisfied that the order of acquittal passed by the learned trial

Court is perverse and suffers from infirmities, it is always open
15
for the High Court to interfere with the order of acquittal passed

by the learned trial Court.

4.8 Making the above submissions and relying upon the

aforesaid decisions of this Court, it is prayed to dismiss the

present appeal.

5. We have heard the learned counsel for the respective parties

at length. We have gone through in detail the judgment and

order of acquittal passed by the learned trial Court as well as the

impugned judgment and order passed by the High Court

interfering with the order of acquittal passed by the learned trial

Court and thereby convicting the accused. we have also gone

through the relevant evidences, both oral as well as

documentary.

5.1 At the outset, it is required to be noted that this is a case of

reversal of acquittal by the High Court in a case of circumstantial

evidence. Therefore, the first and foremost thing which is

required to be considered is, whether in the facts and

circumstances of the case, the High Court is justified in

interfering with the order of acquittal passed by the learned trial

Court?

16
5.2 Before considering the appeal on merits, the law on the

appeal against acquittal and the scope and ambit of Section 378

Cr.P.C. and the interference by the High Court in an appeal

against acquittal is required to be considered.

5.2.1 In the case of Babu (supra), this Court had reiterated

the principles to be followed in an appeal against acquittal under

Section 378 Cr.P.C. In paragraphs 12 to 19, it is observed and

held 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 subject­matter of scrutiny by the appellate court. (Vide
Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir v.
State of Bihar
(1990) 4 SCC 17, Shailendra Pratap v. State of U.P
(2003) 1 SCC 761, Narendra Singh v. State of M.P (2004) 10 SCC
699, Budh Singh v. State of U.P (2006) 9 SCC 731, State of U.P. v.

Ram Veer Singh (2007) 13 SCC 102, S. Rama Krishna v. S. Rami
Reddy
(2008) 5 SCC 535, Arulvelu v. State (2009) 10 SCC 206,
Perla Somasekhara Reddy v. State of A.P (2009) 16 SCC 98 and
Ram Singh v. State of H.P (2010) 2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the Privy
Council observed as under: (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

17
the fact that he has been acquitted at his trial; (3) the right of the
accused to the benefit of any doubt; and (4) the slowness of an
appellate court in disturbing a finding of fact arrived at by a Judge
who had the advantage of seeing the witnesses.”

14. The aforesaid principle of law has consistently been followed by
this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1, Balbir Singh
v. State of Punjab
AIR 1957 SC 216, M.G. Agarwal v. State of
Maharashtra
AIR 1963 SC 200, Khedu Mohton v. State of Bihar
(1970) 2 SCC 450, Sambasivan v. State of Kerala (1998) 5 SCC 412,
Bhagwan Singh v. State of M.P(2002) 4 SCC 85 and State of Goa v.
Sanjay Thakran
(2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415, this
Court reiterated the legal position as under: (SCC p. 432, para 42)
“(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.”

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this Court
reiterated the said view, observing that the appellate court in
dealing with the cases in which the trial courts have acquitted the
accused, should bear in mind that the trial court’s acquittal
bolsters the presumption that he is innocent. The appellate court
must give due weight and consideration to the decision of the trial
court as the trial court had the distinct advantage of watching the

18
demeanour of the witnesses, and was in a better position to
evaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the Court
again examined the earlier judgments of this Court and laid down
that: (SCC p. 374, para 20)
“20. … an order of acquittal should not be lightly interfered with
even if the court believes that there is some evidence pointing out
the finger towards the accused.”

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court gave
certain illustrative circumstances in which the Court would be
justified in interfering with a judgment of acquittal by the High
Court. The circumstances include: (SCC p. 286, para 28)
“(i) The High Court’s decision is based on totally erroneous view of
law by ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence and
documents on record;

(iii) The entire approach of the High Court in dealing with the
evidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust and
unreasonable based on erroneous law and facts on the record of
the case;

(v) This Court must always give proper weight and consideration to
the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with a
case when both the Sessions Court and the High Court have
recorded an order of acquittal.”
A similar view has been reiterated by this Court in Dhanapal v.
State
(2009) 10 SCC 401.

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.”
(emphasis supplied)

5.2.2 When the findings of fact recorded by a court can be

held to be perverse has been dealt with and considered in

paragraph 20 of the aforesaid decision, which reads as under:

19
“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 (1984) 4
SCC 635, Excise and Taxation Officer­cum­Assessing 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, Aruvelu v. State (2009) 10 SCC 206 and Gamini
Bala Koteswara Rao v. State of A.P
(2009) 10 SCC 636).”
(emphasis supplied)

5.2.3 It is further observed, after following the decision of

this Court in the case of Kuldeep Singh v. Commissioner 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.

5.3 In the recent decision of Vijay Mohan Singh (supra), this

Court again had an occasion to consider the scope of Section 378

Cr.P.C. and the interference by the High Court in an appeal

against acquittal. This Court considered catena of decisions of

this Court right from 1952 onwards. In paragraph 31, it is

observed and held as under:

20
“31. An identical question came to be considered before this Court
in Umedbhai Jadavbhai (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: (SCC p.

233)
“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 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 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 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 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 well­considered judgment duly
meeting all the contentions raised before it. But then will this
non­compliance 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

21
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 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 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 v. State of U.P. AIR 1955 SC 807, in para 5, this
Court observed and held as under: (AIR pp. 809­10)
“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.

22
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 well­established 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 AIR 1952 SC 52;
Wilayat Khan v. State of U.P 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 v. State of A.P. (1979) 1 SCC 355, 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.”

(emphasis supplied)

5.4 It is also required to be noted and it is not in dispute that

this is a case of circumstantial evidence. As held by this Court in

catena of decisions that in case of a circumstantial evidence, the

circumstances, taken cumulatively, should form a chain so

complete that there is no escape from the conclusion that within

all human probability the crime was committed by the accused

23
and none else and the circumstantial evidence in order to sustain

conviction must be complete and incapable of explanation of any

other hypothesis than that of the guilt of the accused and such

evidence should not only be consistent with the guilt of the

accused but should be inconsistent with his innocence. In the

case of Babu (supra), it is observed and held in paragraphs 22 to

24 as under:

“22. In Krishnan v. State (2008) 15 SCC 430, this Court after
considering a large number of its earlier judgments observed as
follows: (SCC p. 435, para 15)
“15. … This Court in a series of decisions has consistently held
that when a case rests upon circumstantial evidence, such
evidence must satisfy the following tests:

(i) the circumstances from which an inference of guilt is sought to
be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringly
pointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form a chain so
complete that there is no escape from the conclusion that within
all human probability the crime was committed by the accused and
none else; and

(iv) the circumstantial evidence in order to sustain conviction must
be complete and incapable of explanation of any other
hypothesis than that of the guilt of the accused and such evidence
should not only be consistent with the guilt of the accused but
should be inconsistent with his innocence. (See Gambhir v. State of
Maharashtra
(1982) 2 SCC 351)”

23. In Sharad Birdhichand Sarda v. State of Maharashtra (1984) 4
SCC 116 while dealing with circumstantial evidence, it has been
held that the onus was on the prosecution to prove that the chain
is complete and the infirmity or lacuna in prosecution cannot be
cured by false defence or plea. The conditions precedent before
conviction could be based on circumstantial evidence, must be
fully established. They are: (SCC p. 185, para 153)

(i) the circumstances from which the conclusion of guilt is to be
drawn should be fully established. The circumstances concerned
“must” or “should” and not “may be” established;

24

(ii) the facts so established should be consistent only with the
hypothesis of the guilt of the accused, that is to say, they should
not be explainable on any other hypothesis except that the accused
is guilty;

(iii) the circumstances should be of a conclusive nature and
tendency;

(iv) they should exclude every possible hypothesis except the one to
be proved; and

(v) there must be a chain of evidence so complete as not to leave
any reasonable ground for the conclusion consistent with the
innocence of the accused and must show that in all human
probability the act must have been done by the accused.
A similar view has been reiterated by this Court in State of U.P. v.
Satish
(2005) 3 SCC 114 and Pawan v. State of Uttaranchal (2009)
15 SCC 259.

24. In Subramaniam v. State of T.N (2009) 14 SCC 415, while
considering the case of dowry death, this Court observed that the
fact of living together is a strong circumstance but that by alone in
absence of any evidence of violence on the deceased cannot be held
to be conclusive proof, and there must be some evidence to arrive
at a conclusion that the husband and husband alone was
responsible therefor. The evidence produced by the prosecution
should not be of such a nature that may make the conviction of the
appellant unsustainable. (See Ramesh Bhai v. State of Rajasthan
(2009) 12 SCC 603).”
(emphasis supplied)

5.5 Even in the case of G. Parshwanath (supra), this Court has

in paragraphs 23 and 24 observed as under:

“23. In cases where evidence is of a circumstantial nature, the
circumstances from which the conclusion of guilt is to be drawn
should, in the first instance, be fully established. Each fact sought
to be relied upon must be proved individually. However, in applying
this principle a distinction must be made between facts called
primary or basic on the one hand and inference of facts to be
drawn from them on the other. In regard to proof of primary facts,
the court has to judge the evidence and decide whether that
evidence proves a particular fact and if that fact is proved, the
question whether that fact leads to an inference of guilt of the
accused person should be considered. In dealing with this aspect
of the problem, the doctrine of benefit of doubt applies. Although
there should not be any missing links in the case, yet it is not
essential that each of the links must appear on the surface of the
evidence adduced and some of these links may have to be inferred

25
from the proved facts. In drawing these inferences, the court must
have regard to the common course of natural events and to human
conduct and their relations to the facts of the particular case. The
court thereafter has to consider the effect of proved facts.

24. In deciding the sufficiency of the circumstantial evidence for
the purpose of conviction, the court has to consider the total
cumulative effect of all the proved facts, each one of which
reinforces the conclusion of guilt and if the combined effect of all
these facts taken together is conclusive in establishing the guilt of
the accused, the conviction would be justified even though it may
be that one or more of these facts by itself or themselves is/are not
decisive. The facts established should be consistent only with the
hypothesis of the guilt of the accused and should exclude every
hypothesis except the one sought to be proved. But this does not
mean that before the prosecution can succeed in a case resting
upon circumstantial evidence alone, it must exclude each and
every hypothesis suggested by the accused, howsoever, extravagant
and fanciful it might be. There must be a chain of evidence so
complete as not to leave any reasonable ground for the conclusion
consistent with the innocence of the accused and must show that
in all human probability the act must have been done by the
accused, where various links in chain are in themselves complete,
then the false plea or false defence may be called into aid only to
lend assurance to the court.”

6. Applying the law laid down by this Court in the aforesaid

decisions to the facts of the case on hand, it is to be considered,

whether in the facts and circumstances of the case, the High

Court is justified in interfering with the order of acquittal passed

by the learned trial Court?

6.1 In the present case, the prosecution as well as the High

Court considered the recovery of photographs; recovery of mobile

phone belonging to PW7, recovery of the knife and rope at the

instance of the accused and on alleged disclosure statements of

the accused on 9.9.2010. The prosecution also relied upon the

26
recovery of jeep in which the photographs of the accused were

found. The prosecution also relied upon the disclosure statement

of the accused Anwar Ali with respect to recovery of crates and

for the aforesaid prosecution heavily relied upon the testimony of

PW5, PW6 and PW7. However, it is required to be noted that on

appreciation of the entire evidence on record, the trial Court

found material contradictions in the deposition of the witnesses

of disclosure statements and the recovery of the knife and rope

on 9.9.2010 and thereby did not believe the recovery of knife,

rope, crates on the basis of the disclosure statements made by

the accused and that too recovered on 9.9.2020. However, the

High Court without giving any cogent reasons has interfered with

the findings of fact recorded by the learned trial Court solely by

observing that those contradictions were minor contradictions

and therefore the learned trial Court was not justified in

acquitting the accused solely on the basis of such minor

contradictions. However, on considering the entire evidence on

record, we are in complete agreement with the view taken by the

learned trial Court. The contradictions which came to be

considered by the learned trial Court cannot be said to be minor

contradictions. In the present case, according to the prosecution

27
and PW18­IO, on the basis of disclosure statements made by the

accused on 8.9.2010, the knife and rope were recovered on

9.9.2010. However, PW4 and PW5 have categorically stated in

their deposition that the police brought the sniffer dogs on

2.9.2010 and the sniffer dogs recovered rope, knife etc. on

2.9.2010. So, according to even PW4 and PW5, the rope and

knife were recovered on 2.9.2010 with the help of sniffer dogs.

However, neither in the FIR there was a mention of recovery of

knife and rope on 2.9.2010 with the help of sniffer dogs nor the

IO in his examination­in­chief has stated so. It is required to be

noted that the accused were arrested on 8.9.2010 and prior

thereto on 2.9.2010 the investigating officer visited the spot from

where the knife and rope was recovered on 2.9.2010. In cross­

examination, the IO admitted that he visited the spot from where

the knife was recovered with sniffer dogs on 2.9.2010. He has

also admitted in the cross­examination that this fact has not

been mentioned in the FIR or in the statement of any witness.

Thus, the prosecution and the IO suppressed the material facts.

Even in the cross­examination, the IO has stated that the sniffer

dog had done nothing on the spot. In the cross­examination, he

has also specifically stated that “it is incorrect to suggest that the

28
sniffer dog had traced the strings Ex. P52, knife Ex. P59 and vest

Ex. P54. However, PW4 and PW5 in their deposition have

categorically stated that the knife and rope were recovered on

2.9.2010. The aforesaid cannot be said to be minor

contradictions. Therefore, the trial Court was justified in not

believing the disclosure statements of the accused and the

recovery of the knife, rope etc. on 9.9.2010 as alleged by the

prosecution. From evidence, it emerges that the knife, rope and

vest were recovered on 2.9.2010 i.e., much prior to 8.9.2010

when the accused were arrested.

7. Even the recovery of jeep from Chandigarh and recovery of

photographs and the recovery of mobile phone belonging to PW7

from the jeep also create serious doubts. According to the

prosecution and the IO, he received a secret information that one

jeep is lying in abandoned condition on the Chandigarh road and

though the distance was around 300 kilo meters, he straightway

went to Chandigarh and recovered the jeep in the presence of

Bhunter people brought by him. The Investigating Officer did not

follow the procedure as required to be followed under Section 166

(3 & 4), Cr.P.C. Even he did not comply with the provisions of

Section 100 (4) Cr.P.C. Non­following of the aforesaid provisions

29
alone may not be a ground to acquit the accused. However,

considering the overall surrounding circumstances and in a case

where recovery is seriously doubted, non­compliance of the

aforesaid play an important role.

8. Even the recovery of the mobile phone from the jeep

belonging to PW7 also creates doubt. Though, PW7 has stated

that his mobile was stolen or cheated, he never filed any

complaint earlier. Even the IO has not tried to have the call

details of the mobile. He has not tried to verify from the call

details the conversation to or from the mobile.

Even the disclosure statement of the accused with respect

to crates being sold to PW6 is concerned, it is required to be

noted that in the present case the so­called disclosure statement

is found to be suspicious and doubtful. Cogent reasons have

been given by the learned trial Court for the same.

9. Now so far as the submission on behalf of the accused that

in the present case the prosecution has failed to establish and

prove the motive and therefore the accused deserves acquittal is

concerned, it is true that the absence of proving the motive

cannot be a ground to reject the prosecution case. It is also true

and as held by this Court in the case of Suresh Chandra Bahri v.

30
State of Bihar
1995 Supp (1) SCC 80 that if motive is proved that

would supply a link in the chain of circumstantial evidence but

the absence thereof cannot be a ground to reject the prosecution

case. However, at the same time, as observed by this Court in

the case of Babu (supra), absence of motive in a case depending

on circumstantial evidence is a factor that weighs in favour of the

accused. In paragraphs 25 and 26, it is observed and held as

under:

“25. In State of U.P. v. Kishanpal (2008) 16 SCC 73, this Court
examined the importance of motive in cases of circumstantial
evidence and observed: (SCC pp. 87­88, paras 38­39)
“38. … the motive is a thing which is primarily known to the
accused themselves and it is not possible for the prosecution to
explain what actually promoted or excited them to commit the
particular crime.

39. The motive may be considered as a circumstance which is
relevant for assessing the evidence but if the evidence is clear
and unambiguous and the circumstances prove the guilt of the
accused, the same is not weakened even if the motive is not a
very strong one. It is also settled law that the motive loses all its
importance in a case where direct evidence of eyewitnesses is
available, because even if there may be a very strong motive for
the accused persons to commit a particular crime, they cannot
be convicted if the evidence of eyewitnesses is not convincing. In
the same way, even if there may not be an apparent motive but if
the evidence of the eyewitnesses is clear and reliable, the
absence or inadequacy of motive cannot stand in the way of
conviction.”

26. This Court has also held that the absence of motive in a case
depending on circumstantial evidence is a factor that weighs in
favour of the accused. (Vide Pannayar v. State of T.N (2009) 9 SCC

152).”
(emphasis supplied)

31

10. Considering the aforesaid facts and circumstances of the

case, the findings recorded by the learned trial Court, which were

based on appreciation of the entire evidence on record cannot be

said to be either perverse or contrary to the evidence on record

and/or it cannot be said that the trial Court did not consider any

material evidence on record. Trial Court was justified in recording

the acquittal by observing that prosecution has failed to complete

the entire chain of events. Therefore, we are of the opinion that

in the facts and circumstances of the case, the High Court is not

justified in reversing the order of acquittal passed by the learned

trial Court. Under the circumstances, the impugned judgment

and order passed by the High Court cannot be sustained and the

same deserves to be quashed and set aside.

11. In view of the above and for the reasons stated above, the

present appeal succeeds. The impugned judgment and order

dated 20.09.2016 passed by the High Court of Himachal Pradesh

in Criminal Appeal No. 464 of 2012 is hereby quashed and set

aside, and the judgment and order dated 15.06.2012 passed by

the learned Additional Sessions Judge, Fast Track Court, Kullu,

Himachal Pradesh in Sessions Trial No. 05 of 2011 is hereby

32
restored. The accused­Appellants, namely, Anwar Ali son of

Gama Ali and Sharif Mohammad son of Sampat Mohammad be

set at liberty forthwith, if not required in any other case.

……………………………………..J.

[ASHOK BHUSHAN]

……………………………………..J.

                                 [R. SUBHASH REDDY]


NEW DELHI;                       …………………………………….J.
SEPTEMBER 25, 2020.              [M.R. SHAH]




                                                               33



Source link