Penal Code, 1860: ss. 302/34, 120B – Explosive Substances Act, 1908 – ss. 3, 4 – In the instant case, the accused-respondent committed offence u/s 302 r/w 34 and 120B IPC by causing death of father of appellant-informant, and other deceased victim by use of explosive substance (bomb) and thereby was also charged u/s 3/
4 of the Explosive Substances Act, 1908 – On trial, the accused was convicted and along with the term of imprisonment was also awarded death sentence – High Court acquitted him of all charges on the ground that there were flaws in the investigation and also in the evidence of the prosecution witnesses – While acquitting the accused, the High Court directed the appellant to be tried for the offence of perjury – Hence the instant appeal against setting aside the conviction of the respondent and also against the initiation of the proceeding for perjury – Held: Trial Court failed to appreciate the evidence of PWs-1, 3, 4 and 7 in proper perspective and further failed to recognize the fact that PW-7 (the appellant) did not at all support the case of the prosecution although he was the informant and hence, erroneously convicted the accused – However, having regard to the facts and circumstances of these cases, and bearing in mind that there were two deaths in the incident which was not proved beyond reasonable doubt, only the direction to trial court to initiate proceedings of perjury against the appellant is set aside – Rest of the impugned judgment of acquittal is affirmed. Code of Criminal Procedure, 1973 – s. 378 – Power and Scope – Appellate court has full powers to review and to reverse the acquittal – For the High Court to take a different view on the evidence there must also be substantial and compelling reasons for holding that the trial court was wrong – The High Court in dealing with an appeal against the acquittal ought to be cautious because the presumption of the innocence in the favour of the accused is not weakened by the fact that he has been acquitted at his trial but if the court holds otherwise then it should assign reasons for differing with the decision of the acquittal.
Appeal – Criminal Appellate Jurisdiction of Supreme Court – Extent and scope in cases of appeal against acquittal – The exercise of such power is rare in cases the order of the acquittal has been confirmed by the High Court – Such power can be exercised only when the High Court’s conclusion is absolutely wrong, legally erroneous and perverse keeping in mind the facts of the case. Partly allowing the appeals, the Court
HELD: 1. It is only in rarest of rare cases, where the High Court, on an absolutely wrong process of reasoning and a legally erroneous and perverse approach to the facts of the case, ignoring some of the most vital facts, has acquitted the accused, that the same may be reversed by this Court, exercising jurisdiction under Article 136 of the Constitution. Such fetters on the right to entertain an appeal are prompted by the reluctance to expose a person, who has been acquitted by a competent court of a criminal charge, to the anxiety and tension of a further examination of the case, even though it is held by a superior court. An appeal cannot be entertained against an order of acquittal which has, after recording valid and weighty reasons, has arrived at an unassailable, logical conclusion which justifies acquittal. [Para 30][1063-D-G]
2. The circumstances under which this Court may entertain an appeal against an order of acquittal and pass an order of conviction, may be summarised as follows:(i)Where the approach or reasoning of the High Court is perverse:(a) where incontrovertible evidence has been rejected by the High Court based on suspicion and surmises, which are rather unrealistic.(b) Where the intrinsic merits of the testimony of relatives, living in the same house as the victim, were discounted on the ground that they were ‘interested’ witnesses. (c) Where testimony of witnesses had been disbelieved by the High Court, on an unrealistic conjecture of personal motive on the part of witnesses to implicate the accused, when in fact, the witnesses had no axe to grind in the said matter.
(d) Where dying declaration of the deceased victim was rejected by the High Court on an irrelevant ground that they did not explain the injury found on one of the persons present at the site of occurrence of the crime. (e) Where the High Court applied an unrealistic standard of ‘implicit proof’ rather than that of ‘proof beyond reasonable doubt’ and therefore evaluated the evidence in a flawed manner. (f) Where the High Court rejected circumstantial evidence, based on an exaggerated and capricious theory, which were beyond the plea of the accused or where acquittal rests merely in exaggerated devotion to the rule of benefit of doubt in favour of the accused. (g) Where the High Court acquitted the accused on the ground that he had no adequate motive to commit the offence, although, in the said case, there was strong direct evidence establishing the guilt of the accused, thereby making it unnecessary on the part of the prosecution to establish ‘motive.’ (ii) Where acquittal would result is gross miscarriage of justice (a) Where the findings of the High Court, disconnecting the accused persons with the crime, were based on a perfunctory consideration of evidence or based on extenuating circumstances which were purely based in imagination and fantasy. (b) Where the accused had been acquitted on ground of delay in conducting trial, which delay was attributable not to the tardiness or indifference of the prosecuting agencies, but to the conduct of the accused himself; or where accused had been acquitted on ground of delay in conducting trial relating to an offence which is not of a trivial nature. [Para 30][1064-A-H; 1065-A-F]
State of U.P. v. Sahai AIR 1981 SC 1442; Arunachalam v. Sadhananthan AIR 1979 (SC) 1284 : [1979] 3 SCR 482; State of Haryana v. Lakhbir Singh (1990) CrLJ 2274 (SC); State of Rajasthan v. Sukhpal Singh, AIR 1984 SC 207 : [1983] 2 SCR 53; State of UP v. Shanker, AIR 1981 SC 879; State of UP v. Hakim Singh AIR 1980 SC 184; State of UP v. Ranjha Ram, AIR 1986 SC 1959; State of Maharashtra v. Champalal Punjaji Shah, AIR 1981 SC 1675; Gurbachan v. Satyapal Singh, AIR 1990 SC 209 : 1989 (1) Suppl SCR 292; State of AP v. Bogam Chandraiah, AIR 1986 SC 1899; State of UP v. Pheru Singh, AIR 1989 SC 1205 and State of Uttar Pradesh v. Pussu 1983 AIR 867 (SC) : [1983] 3 SCR 294 - relied on.
3. The High Court also noted flaws in the investigation of the case and in the evidence of the prosecution witnesses which are culled out as under: (i) PW-7 said that PW-4 drew up the written report while PW-4 denied the same. (ii) While PW-1 and PW-3 were related to the deceased and signed the seizure list immediately after the occurrence, yet PW-3 had stated that he was not aware of the other signatory to the seizure list. (iii) The statement of PW-1, who was a witness to the seizure list as well as an eye-witness , was recorded by the police one and half months later with no explanation either by the witness or by the police.
(iv) Similarly, statement of PW-4 who is an eyewitness and a witness to the inquest report of the deceased and who is stated to have drawn up the written report given to the police, was recorded by the police after two months and twenty days. The High Court has noted that there is no explanation for the delay, though he could be presumed to be present at the Police Station when the written report was handed over to the Police. (v) PW-2, the shop owner of the PCO booth adjoining the betel shop of the deceased, was also allegedly injured during the occurrence but there is no injury report. (vi) While the prosecution witnesses alleged throwing of three or more bombs, the Investigating Officer stated that he found signs only of two explosions; first one being at the betel shop of the deceased and the second one near M/s Aditya Electronics, located 40-45 yards north of the site of the first explosion. [Para 52][1077-C-H; 1078-A-C]
4. The Fast Track Court has failed to appreciate the evidence of PWs-1, 3, 4 and 7 in their proper perspective and has further failed to recognise the fact that PW-7/the appellant herein did not at all support the case of the prosecution although he was the informant and hence, erroneously convicted the accused and sentenced two of them with death penalty and the third accused with imprisonment for life. The High Court was, therefore, justified in reversing the judgment and order of conviction passed by the Fast-Track Court. Further, the High Court stated that this is a fit case for initiating proceedings of perjury against the appellant. No doubt, the appellant who was the informant did not at all support the case of the prosecution during trial and as a result, the High Court acquitted the accused. However, having regard to the facts and circumstances of these cases and bearing in mind that there were two deaths in the incident that occurred on 10th March, 2005 which has not been proved beyond reasonable doubt, the portion of the impugned judgment and order directing the trial court to initiate proceedings of perjury against the appellant is set aside. [Paras 54, 57, 58][1080-A-B, D-F]
Atley vs. State of U.P. AIR 1955 SC 807; Sanwat Singh v. State of Rajasthan AIR 1961 SC 715 : [1961] 3 SCR 120; Aher Raja Khima v. State of Saurashtra AIR 1956 SC 217 : [1955] 2 SCR 1285; M.G. Agarwal v. State of Maharashtra, AIR 1963 SC 200 : [1963] 2 SCR 405; Shivaji Sahabrao Bobade v. State of Maharashtra (1973) 2 SCC 793 : [1974] 1 SCR 489; Ramesh Babulal Doshi v. State of Gujarat (1996) 9 SCC 225 : [1996] 2 Suppl. SCR 265; Ajit Savant Majagvai v. State of Karnataka (1997) 7 SCC 110 : [1997] 3 Suppl. SCR 444; Ramesh Babulal Doshi v. State of Gujarat, (1996)
9 SCC 225 : [1996] 2 Suppl. SCR 265; Chandrappa & Ors. v. State of Karnataka, (2007) 4 SCC 415 : [2007]
2 SCR 630; Nepal Singh v. State of Haryana (2009) 12 SCC 351 : [2009] 6 SCR 982 – 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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