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2011 DIGILAW 1427 (MP)

State of M. P. v. Amol Singh

2011-12-15

G.D.SAXENA, S.K.GANGELE

body2011
JUDGMENT Saxena, J. -- 1. The State has preferred this appeal under section 378 of the Code of Criminal Procedure 1973 having been aggrieved by the judgment dated 27th March, 1997 in Sessions Trial No.59/91 by the Fifth Additional Sessions Judge, Bhind (M.P.) acquitting thereby the respondents-accused of the charges framed under section 148, 302/149 and 307/149 of IPC read with section 25(1b) of the Arms Act. 2. It is alleged that on 13.4.1990, brother of complainant Raghuraj Singh and father Lakhan Singh were injured by accused Sahab Singh, Amol Singh, Budha Singh and Sanjeev Singh by means of Lathis and Ballam for which the injured were admitted to the Government Hospital. On the date of incident, i.e., on 19th April, 1990 at around 10:30 o’clock, all the accused opened fire towards Raghuraj Singh, who were returning from the Government Hospital, Bhind after visiting Bharat Singh and Lakhan Singh, who got injured in the previous incident by Sahab Singh. It is alleged that Shishupal Singh was behind the complainant and other witnesses, so the bullet fired by accused Sahab Singh hit Shishupal Singh who received severe injuries on his body and died on the spot. It is stated that Dharam Singh was seriously injured due to firing made by the accused. The incident was narrated by the complainant to Dau Komal Singh at his residence.Then, he reached the Police Station Pawai and lodged the FIR against the accused. The Marg report was also written. The inquiry in the Marg case and the investigation commenced. The injured was sent for treatment to the Government Hospital and dead body of the deceased was sent to post-mortem. Statements of the eye-witnesses were recorded. After arrest of the accused, the fire arms used in incident were seized. The articles relating to the crime were seized and the fire arms used in the incidents by the accused were sent to the Director State Forensic Laboratory and after receipt of the reports from expert, charge-sheet was filed before the criminal Court, having the jurisdiction. On committal, the accused were tried for the offence above. During trial, the accused Sahab Singh expired. After trial, the remaining accused were acquitted of the offence, as mentioned above, hence, this appeal by the State. 3. On committal, the accused were tried for the offence above. During trial, the accused Sahab Singh expired. After trial, the remaining accused were acquitted of the offence, as mentioned above, hence, this appeal by the State. 3. The contention of the learned Public Prosecutor appearing for State is that the judgment of acquittal passed by the trial Judge is against the facts, evidence adduced and the law applicable to the present case. It is submitted that the ocular evidence fully supported the prosecution story but the learned trial Court erred in discarding the prosecution witnesses. It is argued that the villagers were terrorized and, therefore, no independent witness could come forward for recording his statement before the investigating agency.The trial Judge erred in valuing the evidence as adduced and committed an illegality in passing the judgment of acquittal. Therefore, it is prayed that by allowing the appeal, respondents-accused be convicted for committing murder of Shishupal and for attempt to commit murder of Raghuraj Singh and Dharam Singh and appropriate sentence be awarded to them as per law. 4. The learned counsel appearing on behalf of respondents-accused on the other hand, supported the judgment of acquittal and contended that the author of the crime of murder accused Sahab Singh who fired and caused injuries to the deceased and injured had expired during trial. It is submitted that the prosecution utterly failed to bring home the rest of the accused for the alleged offence to attempt to commit murder of Raghuraj Singh and Dharam Singh. The judgment of acquittal against the respondents-accused is passed on the sound reasonings and the totality of the evidence of the case. Accordingly, it is prayed that by confirming the judgment of the trial Court, the appeal preferred by the State be dismissed. 5. Heard the learned counsel for the parties and also perused the evidence on record. 6. In view of the rival submissions of the parties, we think it proper to consider and clarify the legal position first. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extenso : “378. Appeal in case of acquittal. 6. In view of the rival submissions of the parties, we think it proper to consider and clarify the legal position first. Section 378 confers power on the State to present an appeal to the High Court from an order of acquittal. The said section is material and may be quoted in extenso : “378. Appeal in case of acquittal. -- (1) Save as otherwise provided in sub-section (2) and subject to the provisions of sub-sections (3) and (5) : (a) the District Magistrate may, in any case, direct the Public Prosecutor to present an appeal to the Court of Sessions from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of acquittal passed by any Court other than a High Court, or an order of acquittal passed by the Court of Session in revision. (2) If such an order of acquittal is passed in any case in which the offence has been investigated by the Delhi Special Police Establishment constituted under the Delhi Special Police Establishment Act, 1946 (25 of 1946), or by any other agency empowered to make investigation into an offence under any Central Act other than this Code, the Central Government may also direct the Public Prosecutor to present an appeal, subject to the provisions of sub-section (3) : (a) to the Court of Session, from an order of acquittal passed by a Magistrate in respect of a cognizable and non-bailable offence; (b) to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision. (3) No appeal under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (4) If such an order of acquittal is passed in any case instituted upon complaint and the High Court, on an application made to it by the complainant in this behalf, grants special leave to appeal from the order of acquittal, the complainant may present such an appeal to the High Court. (5) No application under sub-section (4) for the grant of special leave to appeal from an order of acquittal shall be entertained by the High Court after the expiry of six months, where the complainant is a public servant, and sixty days in every other case, computed from the date of that order of acquittal. (6) If, in any case, the application under sub-section (4) for the grant of special leave to appeal from an order of acquittal is refused, no appeal from that order of acquittal shall lie under sub-section (1) or under sub-section (2).” 7. Since in the present appeal, we have been called upon to decide the ambit and scope of the power of an appellate Court in an appeal against an order of acquittal, we have confined ourselves to one aspect only, i.e., an appeal against an order of acquittal. 8. Bare reading of section 378 of the present Code (appeal in case of acquittal) quoted above, makes it clear that no restrictions have been imposed by the Legislature on the powers of the appellate Court in dealing with appeals against acquittal. When such an appeal is filed, the High Court has full power to re-appreciate, review and reconsider the evidence at large, the material on which the order of acquittal is founded and to reach its own conclusions on such evidence. Both questions of fact and of law are open to determination by the High Court in an appeal against an order of acquittal. 9. Now we go to consider the evidence on record. 10. Raghuraj Singh (PW1), deposed that on 19th April 1990, at about 10:30 a.m., in the morning Shishupal Singh, after visiting the injured Bharat Singh were returning back with Dharam Singh, Surendra, Sitambar Singh and he himself. As they reached the public road near his house and the house of Sahab Singh, they saw accused Sahab Singh present by the corner of their houses, from before having firearms. As they reached the public road near his house and the house of Sahab Singh, they saw accused Sahab Singh present by the corner of their houses, from before having firearms. By the corner of the house of Pandit Ram Autar, accused Sahab Singh fired from his 12 bore single barrel gun at Shishupal Singh which hit him. Another accused Budha Singh fired a shot, which bullets hit on the back side of Shishupal. The rest of the accused also fired in the air.After receiving injuries, Shishupal fell down.The witness deposed that after incident he and Dharam Singh went to the Police Station Pawai and lodged the FIR. They returned back with police force on the spot and found Shishupal Singh lying dead in the house of Komal Singh. It was informed to him that after incident, all the accused dragged the dead body of the deceased up to the house of Komal Singh. The accused also damaged the outer gate of the house of complainant. 11. Lakhan Singh (PW2) also deposed that accused Sahab Singh fired which caused injuries to deceased from his front side. Accused Sanjeev also caused injuries by firearm to Shishupal Singh. When the witness tried to save Shishupal Singh, accused Sanjeev inflicted two lathis blows to him. Sitambar Singh (PW3) who was present on the spot in his deposition also supported the prosecution story that accused Sahab Singh and accused Budha Singh fired from his gun and caused injuries on the body of Shishupal Singh. He stated that accused Sanjeev Singh caused injuries by means of an Axe on the body of Shishupal Singh. Bharat Singh (PW4) deposed that on 18th April 1990 when he was admitted in the Hospital due to injuries received in previous incident, deceased Shishupal Singh came to him in the Hospital. On next day, in the morning, when he was returning from Hospital, all accused committed murder of him by means of fire arms.The incident was narrated to him by his brother Sitambar Singh, who was present on the spot. 12. Dr. R.N. Gupta (PW10) deposed that on 20th April 1990, he was on the Emergency Duty in the District Hospital Bhind. 12. Dr. R.N. Gupta (PW10) deposed that on 20th April 1990, he was on the Emergency Duty in the District Hospital Bhind. On that day, he conducted autopsy on the dead body of Shishupal Singh, resident of Nunheta sent by Police Station Umari, District Bhind and found one rounded circular holes 25 in No. each about 1/2” in diameter, over rt. iliac region and hypo gastric region of the abdomen. Blackening and charring were seen around the wounds. The injury was due to gun shot and dangerous to the life. One incised wound was also found admeasuring 5 cm. x 1/2 cm. x skin deep over fronto parietal region of the skull, due to sharp cutting object. According to the doctor, the cause of death was haemorrhage and shock due to gun shot injury received by the deceased, which was homicidal in nature. The said post-mortem report is Ex.P-17, prepared and signed by the witness. 13. The investigation in this case was conducted by Head Constable Prakash Singh (PW11) and part of the investigation was conducted by A.K. Ghansoria (PW12), Inspector and In-charge of the Police Station Pawai. During investigation on 25th May 1990, he arrested the accused Amol Singh, Budha Singh, Ramveer, Rakesh and Rajana vide arrest memo (Ex.P-9), however, no weapon of crime was seized from the possession of these accused. On 8th June, 1990, he arrested accused Rajveer vide arrest memo (Ex.P-20). In custody, the arrested accused informed him about weapon of offence, i.e., country made pistol and on production of the same, it was seized. The seized weapon (the country made pistol) from the accused and the empty cartridges seized along with other articles seized from the spot vis-a-vis blood stained cloths of the deceased, received from the Hospital and seized during autopsy, subsequently were sent to the Director State Forensic Science Laboratory. The report received from the Firearms Expert clearly goes to indicate that the weapon (country made pistol) was in a workable condition and the empty cartridges with pallets recovered from the spot, were said to be the parts of the bullets fired by the seized country made pistal. 14. On the close scrutiny of the ocular evidence as produced before the trial Judge clearly indicated that the deceased Shishpal Singh was injured by the pallets of the fire arms of the deceased accused Sahab Singh. As per statement of Dr. 14. On the close scrutiny of the ocular evidence as produced before the trial Judge clearly indicated that the deceased Shishpal Singh was injured by the pallets of the fire arms of the deceased accused Sahab Singh. As per statement of Dr. R.N. Gupta (PW10), who conducted the autopsy on the person of Shishupal Singh, there was only one gun shot injury found on body of the deceased. So, another gun shot injury which was attributed to co-accused Budha Singh does not find corroboration and support by the medical evidence. On perusal of the post-mortem report (Ex.P-17) and the statements of Dr. R.N. Gupta (PW10), one incised wound was found on the scalp of the deceased which was caused by sharp edged weapon. This injury as per statement of Sitambar Singh is caused by accused Sanjeev Singh, but there are contradictions in between the statements of prosecution witnesses on the point of causing injury by accused Sanjeev. 15. At this juncture, it would be refer to the decision in the case of Daya Kishan v. State of Haryana [ AIR 2010 SC 2147 ], the apex Court held : “Section 149, IPC creates a constructive or vicarious liability on the members of the unlawful assembly for the unlawful acts committed pursuant to the common object by any other member of that assembly. The basis of the constructive guilt under section 149, IPC is mere membership of the unlawful assembly, with the requisite common object or knowledge.This section makes a member of the unlawful assembly responsible as a member for the acts of each and all, merely because he is a member of an unlawful assembly. While overt act and active participation may indicate common intention of the person perpetrating the crime, the mere presence in the unlawful assembly may fasten vicariously criminal liability under section 149. There are two essential ingredients of section 149, viz., (1) commission of an offence by any member of an unlawful assembly and (2) such offence must have been committed in prosecution of the common object of that assembly or must be such as the members of that assembly knew to be likely to be committed. Once the Court finds that these two ingredients are fulfilled, every person, who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. Once the Court finds that these two ingredients are fulfilled, every person, who at the time of committing that offence was a member of the assembly has to be held guilty of that offence. After such a finding, it would not be open to the Court to see as to who actually did the offensive act nor it would be open to the Court to require the prosecution to prove which of the members did which of the offensive acts. Whenever a Court convicts any person of an offence with the aid of section 149, a clear finding regarding the common object of the assembly must be given and the evidence discussed must show not only the nature of the common object but that in pursuance of such common object the offence was committed. There is no manner of doubt that before recording the conviction under section 149, IPC, the essential ingredients of section 149, IPC must be established.” 16. In the light of the above facts and evidence of the case we find that although the rest accused except accused Sahab Singh (deceased) though were present having fire arms but their active participation in incident is not proved. So, the respondents cannot be held responsible for the acts of Sahab Singh, the author of the crime. 17. It cannot, however, be forgotten that in case of acquittal, there is a double presumption in favour of the accused. Firstly, the presumption of innocence available to the accused under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is proved to be guilty by a competent Court of law. Secondly, the accused having secured an acquittal, the presumption of his innocence is certainly not weakened but reinforced, reaffirmed and strengthened by the trial Court. 18. It is also well settled that the Court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial Court continues even up to the appellate stage and the appellate Court should attach due weight to the opinion of the trial Court which recorded the order of acquittal. If the appellate Court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. 19. Hence, we do agree with the submissions of the learned counsel for the respoondents-accused that under section 378 of the Code of Criminal Procedure, the High Court could not disturb the finding of facts of the trial Court. The settled position of law regarding the powers of the High Court in an appeal against an order of acquittal is that the Court has full powers to review the evidence upon which an order of acquittal is based and generally it will not interfere with the order of acquittal because by passing an order of acquittal the presumption of innocence in favour of the accused is reinforced. The golden thread which runs through the web of administration of justice in criminal case is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted. The paramount consideration of the Court is to ensure that miscarriage of justice is avoided. A miscarriage of justice which may arise from the acquittal of guilty is no less than from the conviction of an innocent. In a case where the trial Court has taken a view ignoring the admissible evidence, a duty is cast upon the High Court to re-appreciate the evidence in acquittal appeal for the purposes of ascertaining as to whether all or any of the accused has committed any offence or not. In the case of Harijana Thirupala v. Public Prosecutor, High Court of Andhra Pradesh, Hyderabad [ (2002)6 SCC 470 ], the apex Court held : “Doubtless the High Court in appeal either against an order of acquittal or conviction as a Court of first appeal has full power to review the evidence to reach its own independent conclusion. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. However, it will not interfere with an order of acquittal lightly or merely because one other view is possible, because with the passing of an order of acquittal presumption of innocence in favour of the accused gets reinforced and strengthened. The High Court would not be justified to interfere with order of acquittal merely because it feels that sitting as a trial Court would have proceeded to record a conviction; a duty is cast on the High Court while reversing an order of acquittal to examine and discuss the reasons given by the trial Court to acquit the accused and then to dispel those reasons. If the High Court fails to make such an exercise the judgment will suffer from serious infirmity.” 20. In the case of Ramanand Yadav v. Prabunath Jha [(2003)12 SCC 606], it is observed : “There is no embargo on the appellate Court reviewing the evidence upon which an order of acquittal is based. Generally, the order of acquittal shall not be interfered with because the presumption of innocence of the accused is further strengthened by acquittal. The golden thread which runs through the web of administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case, one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted.The paramount consideration of the Court is to ensure that miscarriage of justice is prevented. A miscarriage of justice which may arise from acquittal of the guilty is no less than from the conviction of an innocent. In a case where admissible evidence is ignored, a duty is cast upon the appellate Court to re-appreciate the evidence in a case where the accused has been acquitted, for the purpose of ascertaining as to whether any of the accused committed any offence or not.” 21. Further, in case of Darshan Singh v. State of Punjab [ AIR 2010 SC 1212 ], the apex Court held : “In a case of acquittal, if the trial Court’s view is a possible or plausible view, then the appellate Court or the High Court would not be justified in interfering with it. Further, in case of Darshan Singh v. State of Punjab [ AIR 2010 SC 1212 ], the apex Court held : “In a case of acquittal, if the trial Court’s view is a possible or plausible view, then the appellate Court or the High Court would not be justified in interfering with it. It is the settled legal position that there is presumption of innocence and that presumption is further fortified with the acquittal of the accused by the trial Court.The appellate Court or the High Court would not be justified in reversing the judgment of acquittal unless it comes to a clear conclusion that the judgment of the trial Court is utterly perverse and, on the basis of the evidence on record, no other view is plausible or possible than the one taken by the appellate Court or the High Court.” 22. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge : “(1) An appellate Court has full power to review, re-appreciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, ‘substantial and compelling reasons’, ‘good and sufficient grounds’, ‘very strong circumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc. are not intended to curtail extensive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of ‘flourishes of language’ to emphasize the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion; (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Firstly, the presumption of innocence available to him under the fundamental principle of criminal jurisprudence that every person shall be presumed to be innocent unless he is proved guilty by a competent Court of law. Secondly, the accused having secured his acquittal, the presumption of his innocence is further reinforced, reaffirmed and strengthened by the trial Court; (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate Court should not disturb the finding of acquittal recorded by the trial Court.” 23. Applying the above principles to the case in hand, we are of the considered view that the learned counsel for the accused is right in submitting that the High Court ought not to have disturbed judgment of acquittal recorded by the trial Court. In our view, if in the light of above circumstances, the trial Court felt that the accused could get benefit of doubt, the said view cannot be held to be illegal, improper or contrary to law. Hence, even though we are of the opinion that in an appeal against acquittal, powers of appellate Court are as wide as that of the trial Court and it can review, re-appreciate and reconsider the entire evidence brought on record by the parties and can come to its own conclusion on fact as well as on law, in the present case, the view taken by the trial Court for acquitting the accused was possible and plausible. On the basis of evidence, therefore, at the most, it can be said that the other view was equally possible. But it is well-established that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial Court, it ought not to be disturbed by the appellate Court. In this case, a possible view on the evidence of prosecution had been taken by the trial Court which ought not to have been disturbed by this Court. 24. For the aforesaid reasons, the appeal deserves to be and is, accordingly, dismissed. The judgment of acquittal recorded by the trial Court is hereby maintained. .............