Penal Code, 1860: s.302 r/w s.34 – Prosecution case was that the informant was the daughter of the victim-deceased – As per her statement, the deceased had left in the morning on the fateful day to meet one ‘K’ and thereafter he had to join duty – When he did not return home till 6 pm she called him but his phone was switched off – Next morning, she called the Forest Guard who told her that the deceased had not come to duty – Thereafter she called accused-S whose house was near her house and sought number of ‘K’ – Police came to her house and she found that her father had died due to gun shot by accused-S and accused-R and the body was lying in the forest – The dead body and murder weapon were allegedly recovered on the disclosure statements made by the two accused stated to have been made in presence of PW-2 and PW-3 – Trial court acquitted all the accused for the reason that prosecution failed to prove the guilt of the accused beyond reasonable doubt – On State’s appeal against acquittal, High Court reversed the order of acquittal holding that the finding of trial court that dead body was recovered prior to the disclosure statement made by the accused-S and accused-R was not correct and that the dead body was recovered only on the basis of the disclosure statements – Appeal against conviction – Held: The statements of the prosecution witnesses did not appear to be trustworthy – The entire prosecution case was based on the telephone call made by accused-S but no call details were produced to verify their correctness – The other incriminating circumstance weighed with the High Court was the recovery of the single barrel gun with the cartridge from the house of accused-L, the licence holder – The report of the forensic science laboratory only showed that such gun was used in the commission of crime, but prosecution failed to establish which of the accused actually used the gun – The disclosure statement of accused-S was that he fired from the gun – But the recovery of the gun was on the basis of disclosure statement of accused-R – There was no direct evidence as to the use of licensed gun of accused-L, though the gun along with empty and live cartridges were recovered on the statement of accused-R – In the absence of evidence as to which of the two accused fired upon the deceased, the accused cannot be convicted only on the basis of recovery of gun used in the commission of crime – Prosecution also failed to prove any motive on the part of the accused – Thus, in the absence of any evidence led by the prosecution as to who fired the fatal shot, the benefit of doubt to the accused persons was rightly granted by the trial court – High Court interfered with the findings of acquittal even though the conclusion drawn by the trial court was a possible conclusion on the basis of evidence on record – As regards conviction under ss.25 and 27 of Arms Act, none of the conditions mentioned in those sections were attracted – Conviction of the appellants for the offences punishable under s.302 r/w s.34 and ss.25 and 27 of the Arms Act is set aside – Arms Act, 1959 – ss.25 and 27.
Code of Criminal Procedure, 1973: s.389 – Jurisdiction of Appellate Court to interfere with order of trial court – Scope of – Held: While exercising the jurisdiction under s.389 of the Code, especially when trial court has recorded a finding of not proving the guilt, the Appellate Court should interfere only if the findings are perverse and are not possible by any reasonable person – High Court in an appeal against acquittal does not interfere only if the Appellate Court has a different view on process of evidence than what was taken by the trial court – Penal Code, 1860 – s.302 r/w s.34.
Evidence: Circumstantial evidence – Motive, absence of – Effect on prosecution case – Held: In a case based upon circumstantial evidence, motive is relevant – In the instant case, prosecution failed to prove any motive on the part of the accused – As per the statement of PW-1, the motive was land dispute with accused-S – If such was a motive, then there was no reason for her to contact accused-S who was said to be staying near her house, to find out whereabouts of her father (victim-deceased) – The said motive had no foundation to stand – Criminal law – Motive – Penal Code, 1860 – s.302 r/w s.34.
Allowing the appeals, the Court
HELD: 1. The first statement of PW-1 was that she came to know from the police, when they arrived at the village, that accused-S and accused-R have killed her father. She as PW1 deposed that the statement of the accused was recorded before they proceeded to the forest, and that except ward member (PW2) nobody had told her that her father had been murdered by accused-S and accused-R. It was after her statement that she went to the forest with the police, along with PW-2 and PW-3, and accused-R and accused-S. She further deposed that PW-2 had informed her before the arrival of the police that the dead body of her father was lying in the forest. PW-2 is ward member from Balh Churani of Gram Panchayat Robin. Some officials proceeded to the spot, whereas some came along with dead body of her father. On the other hand, PW-2 was declared hostile. In his crossexamination, he denied that any disclosure statement was made by the accused-S and accused-R. He also denied that accused-R had signed any statement in his presence. He denied other recovery memos as well. In the cross-examination by the accused, he admitted that Balh Churani forest starts near the house of deceased and many registered hunters used to come to this forest for hunting prior to the occurrence. Some hunters without permission, would also come to the forest. The dead body was recovered from a distance of approximately 1 KM from his house. The motorable road is at a distance of 1½ KM from the dead body. He deposed that the statement of PW-1 and accused-S was recorded near the dead body after identification of the dead body. He deposed that accused-S stated to the police that he fired a gunshot by mistake but he had not stated that the gunshot was fired by him and by accused-R. He stated that accused-R had stated to the police that their gun was not used for firing but was still taken into possession by the police. He admitted that there were criminal cases between the father of accused-S and himself, but those cases were compromised. [Paras 15, 16][1155-E-H; 1156-A-D]
2. PW-3 also turned hostile and denied that any statement was made by accused-S and accused-R in his presence. In crossexamination, he deposed that 15-20 persons of Balh Churani Village had gone to the forest. He admitted that the dead body was searched by the police and was not demarcated by anybody else. PW-15 (Inspector) in his cross-examination deposed that accused-S and accused-R were arrested on 22nd December, 2009 at 1.30 pm. He categorically deposed that he had not informed PW-2 before proceeding from the police station. He did not enquire with anybody over the telephone from the police station pursuant to Daily Diary Report. He deposed that he came to know that deceased had died due to gunshot injury before recording the statement of PW-1. [Paras 17, 18][1156-E-G]
3. The phone call was received by police at 7.15 am. The distance of the place of recovery of dead body in forest from the house of the deceased is only about 2 Kms approx. In the first statement of PW-1 recorded at 12.45 pm, there is an assertion that her father was killed by gun shot by accused-S and accused-R. How could she disclose the names of the assailants, if the police had yet to start investigation? The statement of accused-S was recorded prior to the statement of accused-R which was recorded between 1.30 to 2.00 pm as per PW-15. But as per PW-2 the police called him and got the first confirmation about the incident from him, whereas the IO completely denied having made any attempt to contact PW-2 to get any information. As per the IO, he proceeded to Balh Churani forest after associating accused-S, PW2, PW3 and PW-1. The conclusion of the cause of death as due to gunshot by accused-S and accused-R could find mention in the FIR, which is the basis of initiating the investigating process, only if the dead body had already been recovered. The IO has given contradictory statement as that of statement of PW-1 as well as PW-2. The statements of the witnesses did not appear to be trustworthy so as to maintain conviction of the appellants. The evidence of the prosecution did not inspire confidence. [Para 19][1157-A-D]
4. The entire prosecution case was based upon the telephone call made by accused-S but no call details have been produced to verify the correctness of the telephone call. As per the IO, there was no verification made in pursuance of the phone call received. The other incriminating circumstance weighed with the High Court was the recovery of the single barrel gun with the cartridge from the house of accused-L, the licence holder. The report of the forensic science laboratory would only show that such gun was used in the commission of crime, but the prosecution has failed to establish which of the accused has actually used the gun. The disclosure statement of accused-S is that he fired from the gun. But the recovery of the gun is on the basis of disclosure statement of accused-R. There is no direct evidence as to the use of licensed gun of accused-L, though the gun along with empty and live cartridges were recovered on the statement of accused-R. It is not possible to conclusively hold that it was either accused-R or accused-S who fired upon the deceased. In the absence of the evidence as to which of the two accused fired upon the deceased, the accused cannot be convicted only on the basis of recovery of gun used in the commission of crime. [Paras 20, 21][1157-E-H; 1158-A]
5. The High Court has convicted all the accused additionally for the offences under Sections 25 and 27 of the Act. None of the conditions mentioned in Section 25 of the Act were even broadly extended towards the accused including accused-L, the licensee. Section 27 of the Act provides for punishment if whoever uses any arms or ammunition in contravention of Section 5 of the said Act. Again, none of the conditions mentioned in Section 5 are attracted towards any of the accused including accused-L. [Para 22][1158-B-C]
6. In a case based upon circumstantial evidence, motive is relevant but the prosecution has failed to prove any motive on the part of the accused. As per the statement of PW-1, the motive was land dispute with accused-S. If such was a motive, then there was no reason for her to contact accused-S who was said to be staying near her house, to find out whereabouts of her father. The said motive has no foundation to stand. [Para 23][1158-D]
7. The trial court has recorded an order of acquittal. Such order of acquittal could be interfered with only if there was perversity in the findings recorded by the trial court. Mere fact that the High Court has a different opinion will not be sufficient to enable the High Court to set aside the order of acquittal. While exercising the jurisdiction under Section 389 of the Code of Criminal Procedure, 1973, especially when trial court has recorded a finding of not proving the guilt, the Appellate Court should interfere only if the findings are perverse and are not possible by any reasonable person. The High Court in an appeal against acquittal does not interfere only if the Appellate Court has a different view on process of evidence than what was taken by the trial court. [Para 24][1158-E-G]
8. The High Court interfered with the findings of acquittal even though the conclusion drawn by the trial court is a possible conclusion on the basis of evidence on record. The prosecution has failed to prove the role of accused in causing death of the deceased inasmuch as the recovery of dead body in pursuance of similar disclosure statements made by accused-S and accused-R is not proved. In the absence of any evidence led by the prosecution as to who fired the fatal shot, the benefit of doubt must go to the accused persons and was rightly granted by the trial court. The order of the High Court convicting the appellants is wholly illegal, unwarranted and unjust. The conviction of the appellants for the offences punishable under Section 302 read with Section 34 IPC and Sections 25 and 27 of the Act is set aside. [Paras 25, 26][1159-G-H; 1160-A-B]
Sharad Birdhichnd Sarda v. State of Maharashtra (1984) 4 SCC 116 : [1985] 1 SCR 88 ; Brajendra singh v. State of M.P. (2012) 4 SCC 289 : [2012] 3 SCR 599 Chandrappa and Others v. State of Karnataka (2007)
4 SCC 415 : [2007] 2 SCR 630 – 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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