Penal Code,1860 – ss. 302 and 34 – Murder case – Acquittal of three policeman – Correctness of – Prosecution case that prosecution witnesses traveling with the victim, though on a separate scooter, at night in the light of the scooter saw three policemen on the road armed with weapons – Policemen fired at them, hitting the victim who succumbed to the injuries and the prosecution witnesses managed to escape – Policemen charged of murder while patrolling u/s. 302/34 – However, acquittal by the trial court – Appeal thereagainst, u/s. 378(3) – Dismissed by the High Court – On appeal, held: Though judgment of the High Court is a cryptic one but that by itself need not be a ground to set aside the order – There are relevant record to assess the merit of the prosecution case – Incident arose in the year 1987 and the appeal remained pending – Neither of the prosecution witness could identify any of the three accused – They did not depose that the three policemen involved in the crime were those who were facing trial – Trial court justified in discarding the testimony of the eye-witness – Also no reliable evidence that the exchange of fire was with a view to kill – Moreover, the victim died from a .12 bore gunshot which could not be ascribed to rifles issued to the policemen – Circumstances ought to have formed a chain so far complete as to indicate that in all human probability it were the persons facing trial and none else who committed the crime – However, the circumstances found proved do not constitute a complete chain – Thus, not a fit case to interfere with the order passed by the High Court – Code of Criminal Procedure, 1973 – s. 378(3).
Code of Criminal Procedure, 1973: s. 378(3) – Appeal against acquittal – Power of the appellate court – Explained. Dismissing the appeal, the Court
HELD: 1.1 No doubt the judgment and order of the High Court appears a bit cryptic but that by itself need not be a ground to set aside the order and remit the matter to the High Court, particularly, when there are relevant record to assess the merit of the prosecution case. More so, because the incident is of the year 1987 and the appeal has remained pending since more than a decade. In such circumstances, if the matter is remitted to the High Court only to rewrite the judgment, it would be travesty of justice. Consequently, as the trial court has dealt with the matter at great length and has discussed each and every piece of evidence on which the prosecution seeks to rely, it would be apposite to assess whether, by not granting leave to appeal against the judgment of the trial court, there has been a miscarriage of justice. [Para 26][474-H; 475-A-C]
1.2 In an appeal against acquittal, the power of the appellate court to re-appreciate evidence and come to its own conclusion is not circumscribed by any limitation. But it is equally settled that the appellate court must not interfere with an order of acquittal merely because a contrary view is permissible, particularly, where the view taken by the trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record. [Para 27][475-C-D]
1.3 In the instant case, the prosecution case rested on ocular account as well as on certain circumstances. The ocular account is provided by PW-3, PW-6 and PW-15. PW-3 and PW-6 were traveling with the deceased, though on a separate scooter. They, therefore, had the opportunity to witness the incident. According to them, while they were traveling on their respective scooters, torch light was flashed at them by men in police uniform. As a result, deceased’s scooter skidded. Thereafter, when gun shots were fired they escaped and came to the village. On information, a large number of persons from the village arrived at the spot. Neither PW3 nor PW6 could identify any of the three accused. They did not depose that the three policemen involved in the crime were those who were facing trial. Thus, there is no infirmity, much less perversity, in the view taken by the trial court that the testimony of PW-3 and PW-6 is not of much help to the prosecution qua the three accused facing trial. [Para 28][475-E-G]
1.4 With regard to the testimony of PW-15, detailed reasons have been recorded by the trial court to hold him unreliable and unworthy of credit. Moreover, PW15’s presence is not confirmed by PW3 and PW6. Otherwise also, PW15’s conduct of remaining silent for over a week creates a lingering doubt in the mind as to whether he is a witness set up on advise, particularly, when it is noticed that his first statement was not to the investigating agency but made on an affidavit prepared by a lawyer, who simultaneously prepared three affidavits identically worded. The trial court noticed all these facts as also that PW-15 was lying when he stated that he went alone to get the affidavit prepared. The trial court also noticed that all the three affidavits were prepared on stamp papers, consecutively numbered, bought from the same vendor and the affidavits were sworn in quick succession giving rise to a definite conclusion that they were prepared by an advocate. The trial court also noticed that the conduct of PW15 was a bit unusual in the sense that he made no disclosure to anyone including the father of the deceased yet, he straightaway went to swear and dispatch an affidavit by post to a higher officer of the police even though, by that time, the investigation had been transferred to the CB-CID from the local police and, therefore, there was no threat from the local police. In these circumstances, if the trial court discarded the testimony of PW-15, the same was justified. [Para 29][475-H; 476-A-D]
1.5 Adverting to the proven circumstances, what transpires is that the witnesses are consistent that there was a police action on that fateful night. Assuming that it is true that in the night there was an exchange of fire between men in uniform and members of the public, but there is no reliable evidence that the exchange of fire was with a view to kill. Moreover, the deceased did not die of a rifle bullet injury. Rather, he died from a .12 bore gunshot which could not be ascribed to rifles issued to the accused persons. Therefore, even if empties of rifle cartridges relatable to service rifles issued to the accused were found at the spot, culpability of the accused persons in causing death of the deceased is not inferable. Further, there is no recovery of a .12 bore gun from any of the accused persons facing trial. Notably, after the incident, villagers congregated at the scene of crime. The police arrived at the spot and took the injured to the hospital. According to the prosecution evidence, the accused persons were present at the spot during this period. Therefore, if they were really involved they could have been identified by either PW3 or PW6, but there was no such event. Further, the continued presence of the accused at the spot is a circumstance which goes in favour of the accused, being a conduct that belies a guilty mind. Another circumstance which goes in favour of the accused is that, according to the prosecution’s own case, the accused persons, three in number, had a rifle each with 50 rounds. Admittedly, some of the empty cartridges found at the spot, as per the ballistic expert report, were not fired from the rifle issued to the accused. This is indicative of presence of some other rifle also. Whose rifle it was, the prosecution evidence is silent. Moreover, if the accused were to use their rifle to fire shots why would they use a country made pistol to inflict injury to the deceased. [Para 30 & 31][476E-H; 477-A-B]
1.6 The circumstance that the accused persons were required to patrol that area and had left the police station for that end on that fateful night is a circumstance which is not conclusive as to turn the tables on the accused, inasmuch as the patrolling area covered two villages. It may be possible that the accused arrived at the spot late, when the incident had already taken place, and to chase away the miscreants, fired shots from their service rifles. Be that as it may, once the ocular account of PW-15 stood discarded, to clinch a conviction on the basis of circumstances, the circumstances ought to have formed a chain so far complete as to indicate that in all human probability it were the persons facing trial and none else who committed the crime. Here the circumstances found proved do not constitute a chain so far complete as to indicate that in all human probability it were the accused persons and no one else who committed the crime. In such a situation, there was no option for the trial court but to extend the benefit of doubt to the accused. It has not been pointed out that the trial court ignored or misread any relevant evidence. [Para 32, 33][477-C-E]
1.7 It is not a fit case to interfere with the order passed by the High Court and remit the matter only for the High Court to rewrite the judgment as the same, would be an exercise in futility. [Para 34][477-F]
As published in the Supreme Court Reports, Supreme Court of India. Text from the Indian Supreme Court Judgments open data set (Dattam Labs), CC BY 4.0.
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