Code of Criminal Procedure, 1973 – ss.378, 384 – Appeal against acquittal – Murder of police officer – Appellants acquitted giving benefit of doubt – Acquittal reversed by High Court – On appeal, held: Most of the witnesses turned hostile – PW1-Sub Inspector of Police, the sterling witness of the prosecution had an axe to grind against the accused who had given a complaint against him – It is too strange that he could be a chance witness – Many contradictions in statements made by PW-1 and PW-2-Duty constable – Alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic however, except the evidence of PW-1 and PW-2, there was no other evidence relied upon by the prosecution – On motive, there was nothing to implicate the accused with motive to murder the deceased – High Court did not undertake the exercise as mandated u/s.378 r/w s.384 in reversing the reasoned decision rendered by the trial court – Penal Code, 1860 – ss.302, 506-B, 120B r/w 34.
Code of Criminal Procedure, 1973 – ss.378, 384 – Scope of – Discussed.
Allowing the appeals, the Court
HELD: 1.1 Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to involve itself in a deeper, studied scrutiny of not only the evidence before it, but is duty bound to satisfy itself whether the decision of the trial court is both possible and plausible view. When two views are possible, the one taken by the trial court in a case of acquittal is to be followed on the touchstone of liberty along with the advantage of having seen the witnesses. Article 21 of the Constitution of India also aids the accused after acquittal in a certain way, though not absolute. The Appellate Court is expected to maintain a degree of caution before making any remark. [Paras 20, 22][460-B-E; 461-A]
1.2 The trial court considered the testimonies of the other witnesses first before embarking upon eye witnesses and the material witness. It gives exhaustive reasoning for its ultimate conclusion. Most of the witnesses turned hostile. PW-16, an independent witness also states that she has not seen the occurrence and she heard that the deceased was dead before taking to the hospital. The trial court took enormous pains in considering the evidence of all the witnesses one by one. On considering the evidence of PW-7, a shoe shop owner, it gives its cogent reasoning for its non-acceptance. The previous bill and the relevant bill had a difference of about 8 months in between and this witness has not seen who has purchased the chappals marked as M.O. 8 from his shop. Similarly, PW-20 who was running an STD booth could not convince the trial court as he could not say that the accused had made calls from his booth. On motive, it was correctly analysed that there was nothing to implicate the accused with motive to murder the deceased. PW-1 was the sterling witness of the prosecution. Certainly, he had an axe to grind against the accused who had given a complaint against him. He was facing a departmental enquiry and suspension. It is too strange that he could be a chance witness. His evidence was thoroughly analysed by the trial court including the distance between his place of work and his residence. He did not use his wireless which was not in operation and went to the police station to give an oral complaint the first time but the same was not registered. PW-25 was known to him and it is surprising as to why no attempt was made to save the deceased immediately by taking him to the nursing home which was 50 meters away as a normal human conduct. There are many contradictions between the statements made by PW-1 and PW-2. It is also surprising as to how the other chance witness ‘R’ came to the place, once again, a person known to the family of the deceased. Though PW-1 denied the complaint against him, he made an admission that he was under suspension. There was no bloodstain of the deceased on PW-1 as against PW-2 and the same was also not matched. PW-2 was also seen along with PW-1. He was another eye witness. He was a duty constable. The trial court rightly doubted his presence as well. Once again, even this witness has not given any complaint. This Court is dealing with the deposition of a police officer who is expected to know his duty. While PW-2 did not make a complaint but went on to do his duty, PW-1 did not attend to his duty thereafter or informed the police station in which he was posted. Though, PW-2 has stated that accused made an attempt to attack him by throwing one of the material objects, even the High Court has disbelieved that. The said material object was recovered from some other place as could be seen from the recovery memo, despite the fact that it was nobody’s case that the accused retrieved the same and kept it with them while being chased. [Paras 24-27][465-G-H; 466-A-H; 467-A-B]
1.3 PW-25 is the doctor who is well known to PW-1. While PW-1 deposed that he did not actually accompany the deceased, PW-25 did make a statement that both the police and public admitted the deceased. This witness did admit that exhibit Ex. P-41 made a mention that the deceased was brought by PW-1 and Ramesh. Both PW-1 and PW-2 did not speak about this. He had also stated that he did not know whether the contents of Ex. P-41 as correct or not. He acknowledged the fact that he was well known to PW-1 and his family. On a reading of the evidence of PW-25 no existence of dying declaration is found in it. He had deposed that he did not remember whether the deceased told him that the accused attacked him and caused injuries. It is his further testimony that he had given Ex. P-41 due to the persistence of the police. He did not remember whether police asked him to name the accused under Ex. P-41. Exhibit P-38, the case sheet maintained by PW-25 though makes a mention about the accused, it did not speak about any statement being made by the deceased about the accused. This Court is in agreement with the reasoning of the trial court for not accepting the evidence of PW-25. [Paras 28-30][267-B-F]
1.4 The defence also examined one witness. This witness is a Government doctor being an expert in the field of surgery. He had clearly deposed that it would be impossible for the deceased to be conscious after suffering injuries as mentioned in Exhibit P-38, which is intestines coming out. The trial court correctly considered this evidence. High Court rendered a conviction on mere surmise, even though an inference can never be the basis of a conviction when the testimony of a witness is not believed on cogent reasoning. It is also not known as to how the High Court could give a finding that the investigating officer was supporting the accused qua the contradiction elicited between Section 161 CrPC statement given by the witness as against deposition before the Court. The alleged occurrence was said to have happened at about 5 p.m. on a busy road with heavy traffic and even the evidence of PW-1 and PW- 2 suggests that there were about 1000 persons. Except the evidence of PW-1 and PW-2, there was no other evidence relied upon by the prosecution. The High Court did not undertake the exercise as mandated under Section 378 read with Section 384 CrPC in reversing the reasoned decision rendered by the trial court. The orders of conviction passed by the High Court stand set aside. [Paras 31-33] [467-F-G; 468-B-E]
Anwar Ali and Anr. v. State of Himachal Pradesh (2020)
10 SCC 166 – relied on.
Jayamma & Anr. vs. State of Karnataka (2021) 6 SCC 213; Paparambaka Rosamma & Ors. vs State of A.P. (1999) 7 SCC 695 : [1999] 2 Suppl. SCR 328; Surinder Kumar vs. State of Haryana (2011) 10 SCC 173 : [2011]
12 SCR 1205; Chandrappa vs. State of Karnataka (2007) 4 SCC 415 : [2007] 2 SCR 630; Rajendra Prasad vs. State of Bihar (1977) 2 SCC 205 [1977] 3 SCR 68; Padmanabhan Vijaykumar vs. State of Kerela (1994) Supp. 2 SCC 156; Amar Singh vs. State of NCT of Delhi (2020) SCC Online SC 826; Narayana Reddy alias Babu vs. State of Karnataka (2016) 14 SCC 212; A Shanker vs. State of Karnataka (2011) 6 SCC 279 : [2011] 6 SCR 999; Selvaraj vs. State of Tamil Nadu (1976) 4 SCC 343; Pradeep Narayan Madgaonkar vs. State of Maharashtra (1995) 4 SCC 255 – referred to.
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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