Code of Criminal Procedure, 1973: s.378: Appeal against acquittal – Scope of – Appellate Court has to consider whether trial court’s view can be termed as a possible one, particularly when evidence on record has been analyzed – An order of acquittal adds up to the presumption of innocence in favour of the accused – Double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters – Thus, appellate court has to be relatively slow in reversing the order of trial court rendering acquittal. Criminal Law: FIR: Delay in sending FIR to Magistrate – FIR starts the process of investigation by setting criminal law into motion – Investigation officer has to keep the magistrate in the loop of his ongoing investigation – Such an information is expected to reach the jurisdictional magistrate at the earliest point of time – Delay introduces coloured version, exaggerated account or concocted story as a result of deliberation and consultation – However, a mere delay by itself cannot be a sole factor in rejecting the prosecution’s case.
Code of Criminal Procedure, 1973: s.161–Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense – An inordinate and unexplained delay may be fatal to the prosecution’s case but only to be considered by the Court, on the facts of each case – However, non-examination of the witness despite being available may call for an explanation from the Investigating Officer.
Evidence Act: s.27: Fact discovered – Onus – Admissibility under s.27 is relatable to the information pertaining to a fact discovered – It facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense – The onus is on the prosecution to prove the fact discovered from the information obtained from the accused – One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means – The Court will have to be conscious of the witness’s credibility and the other evidence produced when dealing with a recovery under s.27 of the Evidence Act.
Criminal Law – In the instant case, accused, 16 in numbers, assembled, hatched a conspiracy and thereafter attacked deceased to take out his life – Trial Court convicted A-2, A-4, A-5, A-8, and A-9 under IPC and acquitted A-10 to A-16 by considering the evidences on record – High Court confirmed the order of acquittal against A-14 to A-16 and confirmed the conviction against the other accused, namely, A-2, A-4, A-5, A-8, and A-9, but it overturned the order of acquittal of A-10, A-11, A-12, and A-13 granted by trial court on the premise that the witnesses who spoke about these accused’s presence failed to consider the import of s.149 IPC – On appeal, held: Trial court has taken a possible view that the evidence rendered by the eyewitnesses does not satisfy the Court qua the presence of A-10 to A-13 – As trial court had the advantage of seeing the witnesses as they deposed, the appellate forum cannot change the conclusion arrived at thereafter by substituting its views – High Court has adopted the principle of preponderance of probability as could be applicable to the civil cases to the case on hand when more scrutiny is warranted for reversing an order of acquittal – For the recovery made from A-12 also, there was no confirmation from prosecution witnesses – The blood-stained dress was stated to have been recovered from A-13 from the hospital – It is not known as to how the said dress reached the hospital, and there was no evidence forthcoming on that count, apart from correlating the said dress to that of the accused – There seemed to be a structured pattern in the recovery of A-10 to A-13 – Conviction rendered by High Court against A-10 to A-13 stands set aside – Acquittal by trial court restored.
Disposing of the appeals, the Court
HELD: 1. 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. [Para 25][733-E-F] Mohan @ Srinivas @ Seena @Tailor Seena v. State of Karnataka 2021 SCC OnLine SC 1233; N.
Vijayakumar v. State of T.N. (2021) 3 SCC 687 – relied on.
2. The jurisdictional Magistrate plays a pivotal role during the investigation process. It is meant to make the investigation just and fair. The Investigating Officer is to keep the Magistrate in the loop of his ongoing investigation. The object is to avoid a possible foul play. The Magistrate has a role to play under Section
159 of Cr.PC. The first information report in a criminal case starts the process of investigation by letting the criminal law into motion. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible ante-dating or ante-timing leading to the insertion of materials meant to convict the accused contrary to the truth and on account of such a delay may also not only gets bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation. However, a mere delay by itself cannot be a sole factor in rejecting the prosecution’s case arrived at after due investigation. Ultimately, it is for the Court concerned to take a call. Such a view is expected to be taken after considering the relevant materials. [Paras 26, 27][744-C-F] Shivlal v. State of Chhattisgarh (2011) 9 SCC 561 : [2011] 11 SCR 429; Rajeevan v. State of Kerala [(2003)
3 SCC 355; State of Rajasthan v. Om Prakash (2002) 5 SCC 745 : [2002] 3 SCR 753 - relied on.
3. The Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense. An inordinate and unexplained delay may be fatal to the prosecution’s case but only to be considered by the Court, on the facts of each case. There may be adequate circumstances for not examining a witness at an appropriate time. However, nonexamination of the witness despite being available may call for an explanation from the Investigating Officer. It only causes doubt in the mind of the Court, which is required to be cleared. Similarly, a statement recorded, as in the present case, the investigation report is expected to be sent to the jurisdictional Magistrate at the earliest. A long, unexplained delay, would give room for suspicion. [Paras 28, 29][748-F-H]
Shahid Khan v. State of Rajasthan (2016) 4 SCC 96 : [2016] 2 SCR 284; Ganesh Bhavan Patel v. State of Maharashtra (1978) 4 SCC 371 : [1979] 2 SCR 94 – relied on.
4. Section 27 of the Evidence Act is an exception to Sections
24 to 26. Admissibility under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, accused of an offense. Thus, it incorporates the theory of “confirmation by subsequent facts” facilitating a link to the chain of events. It is for the prosecution to prove that the information received from the accused is relatable to the fact discovered. The object is to utilize it for the purpose of recovery as it ultimately touches upon the issue pertaining to the discovery of a new fact through the information furnished by the accused. Therefore, Section 27 is an exception to Sections 24 to 26 meant for a specific purpose and thus be construed as a proviso. The onus is on the prosecution to prove the fact discovered from the information obtained from the accused. This is also for the reason that the information has been obtained while the accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery under Section 27 will have to satisfy the Court’s conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the accused, by other means. The Court will have to be conscious of the witness’s credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act. [Paras 30, 31][750-G-H; 751-A-C]
Kusal Toppo v. State of Jharkhand (2019) 13 SCC 676; Navaneethakrishnan v. State (2018) 16 SCC 161: [2018]
6 SCR 749; H.P. Admn. v. Om Prakash (1972) 1 SCC 249: [1972] 2 SCR 765; Aghnoo Nagesia v. State of Bihar [1966] 1 SCR 134; K. Chinnaswamy Reddy v. State of A.P. [1963] 3 SCR 412 – relied on.
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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