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Wednesday, September 4, 2013

Presence of witness doubtful = According to the report (Exh.PAK) of the Deputy Director, Forensic Science Laboratory, Madhuban no linkage could be established between the bullets recovered from the dead body and the fire arms allegedly recovered at the instance of the accused both of which were sent for forensic examination. The learned Trial Court also noticed that PW-11 and PW-12 had identified the accused including the present appellant for the first time in Court. It was also held that the refusal of the accused to cooperate and take part in the test identification parade could not be held adversely against the accused on account of the fact that even earlier to the proposed test identification parade the accused were shown to PWs 11 and 12 and also to the son of the deceased. The mere claim of the prosecution that PW-11 Sohan Lal and PW-12 Bharat Lal were eye witnesses to the occurrence could not have been sufficient for the High Court to treat the ocular version of the said witnesses as the undisputed version of the occurrence. The High Court did not test the prosecution claim in the backdrop of the totality of the facts of the case. Having done so, we arrive at a different conclusion and, therefore, take the view that the High Court was not justified in reversing the acquittal of the accused-appellant Prem Singh. We, therefore, set aside the order of the High Court insofar as the present appellant is concerned and restore the order of acquittal passed by the learned Trial Court. The appeal is consequently allowed. If the appellant is presently in custody he be released

                           published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40723 
 REPORTABLE

                        IN THE SUPREME COURT OF INDIA
                       CRIMINAL APPELLATE JURISDICTION
                       CRIMINAL APPEAL NO. 925 OF 2009

Prem Singh                              ...  Appellant(s)
                                   Versus
State of Haryana                        ...  Respondent(s)

                               J U D G M E N T

RANJAN GOGOI, J.

1.    The appellant, Prem  Singh,  alongwith  six  others  was  charged  for
various offences punishable under the Indian Penal Code (IPC), 1860 and  the
Arms Act, 1959, including, the offence under Section 302 read  with  Section
149 IPC.  Two of the  accused,  namely,  Satish  Kumar  and  Surinder,  were
acquitted even prior to the recording of their statements under Section  313
Code of Criminal Procedure (Cr.P.C).  The remaining five accused,  including
the present appellant, were acquitted by the  learned  Trial  Court  at  the
conclusion of the trial by order dated 5.4.1997.  Aggrieved, the  State  had
filed an appeal before the High Court of Punjab & Haryana.  The  High  Court
by judgment and order dated 12.5.2008 reversed the acquittal insofar as  the
present appellant Prem Singh and another accused,  i.e.,  Vishwa  Bandhu  is
concerned.  Both the aforesaid accused persons were convicted under  Section
302 read with Section 34 IPC and have been  sentenced  to  undergo  rigorous
imprisonment for life.  The appeal of the State in respect of the  remaining
three accused, namely, Daulat Ram, Ballu and  Radhey  Shyam  was  dismissed.
Aggrieved by his conviction and the sentence imposed,  the  appellant,  Prem
Singh, has filed the present appeal.

2.    The case of the prosecution, in short, is that on 26.11.1993 at  about
6.30/6.45 a.m. when PW-16 Sohan Lal was present  in  his  house,  one  Vijay
Kumar, a neighbour, came and  informed  him  that  his  elder  brother  Siri
Krishan who had gone for a morning walk has been shot  at  by  some  persons
who had come in a Maruti car. On receipt of the said information from  Vijay
Kumar, who claimed to have witnessed the  occurrence,  PW-16  alongwith  his
nephew Navneet Kumar went to the spot and found  Siri  Krishan  lying  in  a
pool of blood. The injured was removed to the government hospital at  Karnal
where he was declared “brought dead”. According to the prosecution,  on  the
basis of the information sent to the police by the doctor in the  government
hospital, PW-24 SI Gurcharan Singh arrived in the hospital and recorded  the
statement of PW-16 Sohan Lal to the above effect (Exh.PQ).  On the basis  of
the said statement a FIR was registered which was investigated initially  by
PW-23 Inspector Om Prakash and thereafter by PW-24 SI Gurucharan  Singh  and
PW-27 Inspector Gordhan Singh. In the  course  of  investigation  the  seven
accused persons including the appellant were arrested and recovery  of  fire
arms was allegedly effected at the instance  of  accused-appellant  and  co-
accused Ballu.  From the place of occurrence several  empty  cartridges  and
lead bullets were recovered. 3 bullets were also  recovered  from  the  dead
body in the course of the post-mortem examination. The same  alongwith  fire
arms allegedly recovered at the instance of the two accused  were  sent  for
forensic examination.  On  completion  of  the  investigation   the  accused
persons including the present appellant were chargesheeted and the case  was
committed for trial to the Court  of  Sessions  at  Karnal.   Charges  under
Sections 120-B, 148, 302 read with Section 149 of the Indian Penal Code  and
Section 25 of the Arms Act  were framed  against  the  accused.   While  the
trial ended in the acquittal of all the accused persons the  same  has  been
reversed by the High Court in respect of the two  accused  persons,  namely,
Prem Singh and Vishwa Bandhu.   Challenging the  order  of  the  High  Court
this appeal has been filed by accused-appellant Prem Singh.

3.    The appeal was initially heard by  a  Bench  of  two  Hon’ble  Judges.
However, there being a difference of opinion between the Hon’ble Judges  the
matter required consideration by a larger Bench.  This  is  how  the  appeal
has come to be posted before us.

4.    We have heard Mr. D.B. Goswami learned counsel for the  appellant  and
Mr. Suryanaryana Singh, learned Addl. Advocate  General  for  the  State  of
Haryana.

5.    Having regard to the fact that in the instant case the High Court  had
thought it proper to reverse the order of acquittal passed  by  the  learned
Trial Court it will be appropriate  to  notice,  though  very  briefly,  the
virtually settled position in law with regard to the power of the  Appellate
Court to reverse an order of acquittal  passed  by  a  Trial  Court.   In  a
recent decision in Murugesan v. State Through Inspector of  Police[1]   this
Court had the occasion to consider the broad  principles  of  law  governing
the power of the High Court under  Section  378  of  the  Code  of  Criminal
Procedure, 1973. The summary of the relevant principles of law  set  out  in
para 21 of the judgment may be extracted hereinunder:
        “21. A concise statement of the law on the issue that  had  emerged
      after over half a century of evolution since Sheo Swarup[2] is  to  be
      found in para 42 of the Report in Chandrappa v. State of Karnataka[3].
      The same may, therefore, be usefully noticed below:


           “42. From the above  decisions,  in  our  considered  view,  the
        following general principles  regarding  powers  of  the  appellate
        court while dealing with an appeal against an  order  of  acquittal
        emerge:


           (1) An appellate court has full power  to  review,  reappreciate
        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 emphasise 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 is 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.”(Emphasis
        supplied)


6.    It is in the light of the above principles of law that  the  reasoning
and conclusions of the High Court that will have to be  analysed  so  as  to
determine the correctness of the  view  taken  by  the  High  Court  in  the
present case.  To facilitate the aforesaid exercise the manner in which  the
learned Trial Court had arrived at its conclusions  in  the  matter  may  be
usefully noticed in the first instance.

7.    Vijay Kumar, who according to PW-16 Sohan Lal, came and  informed  him
about the incident was not examined  by  the  prosecution.  The  above  fact
assumes significance in as much as from the statement of PW-16  recorded  in
the hospital (Exh.PQ) it would appear that Vijay  Kumar  had  witnessed  the
occurrence. The learned Trial Court took note of the above  facts  and  also
that the statement  of  the  aforesaid  Vijay  Kumar  was  recorded  by  the
Investigating Officer only on 28.3.1994  and  that  too  on  account  of  an
objection raised by the  public  prosecutor  prior  to  the  filing  of  the
chargesheet (Challan) before the Court.  The public prosecutor had tried  to
justify the non-examination of Vijay Kumar by contending  that  it  was  not
Vijay Kumar but his daughter who had witnessed the occurrence.   Considering
the aforesaid contention the learned Trial Court held that even if the  same
is to be accepted the daughter of Vijay Kumar should have been  examined  as
a witness.  However, the evidence of Investigating Officers PW-23  Insp.  Om
Prakash, PW-24 SI Gurcharan Singh  and PW-27 Insp.  Gordhan  Singh  make  it
clear that none of the members of the family of Vijay  Kumar  were  examined
and no statement of any family member was recorded.

8.    The learned Trial Court came to the conclusion  that
there  is  ample
room to doubt whether PW-11  Sohan  Lal  and  PW-12  Bharat  Lal,  who  were
examined by the prosecution as eye witnesses,  had  actually  witnessed  the
occurrence. Both  the  aforesaid  two  witnesses  had  come  to  Karnal  (in
Haryana) from Sunam in Punjab about two months prior to the incident and  in
the month of March, 1994 they had shifted back to Sunam from where they  had
come. In this regard the Trial Court  specifically  noticed  that  both  the
witnesses were not able to give any specific address  in  Karnal;  
they  had
not received any summons to appear as witnesses and had so appeared  at  the
request of the son of the deceased.  Furthermore, PW-11  Sohan  Lal  claimed
to be an employee of the brother of PW-13 Smt. Pushpa Devi who is  the  wife
of the deceased.  
Both PW-11 and PW-12 claimed that they knew  the  deceased
from before and that the house of the deceased was very near  to  the  place
of occurrence. Yet, PW-11 and PW-12 did not go to the house of the  deceased
to inform the family members of the incident; neither did  they  report  the
incident to the police. 
Instead, they were roaming around aimlessly  in  the
streets of Karnal until they came to the place of occurrence  at  1.30  p.m.
when their statements were recorded by the  police.   
The  aforesaid  facts,
according to the learned Trial Court, cast a serious doubt  with  regard  to
the presence of PW-11 Sohan Lal and PW-12 Bharat Lal at  the  scene  of  the
occurrence.

9.    Furthermore, the learned Trial Court on  the  basis  of  the  evidence
adduced before it held the recovery of the weapons at the  instance  of  the
accused-appellant and co-accused Ballu to be  highly  doubtful  inasmuch  as
though the weapons were not concealed under the earth, no recovery was  made
from the spot on 21.09.1994; yet, on 22.1.1994 and 23.1.1994  the  two  fire
arms were recovered allegedly at the instance of the accused-appellant  Prem
Singh and co-accused Ballu respectively.  In this  regard  the  Trial  Court
also noticed that
according to the report (Exh.PAK) of the Deputy  Director,
Forensic Science  Laboratory,  Madhuban  no  linkage  could  be  established
between the  bullets  recovered  from  the  dead  body  and  the  fire  arms
allegedly recovered at the instance of the accused both of which  were  sent
for forensic examination.   
The learned Trial Court also noticed that  PW-11
and PW-12 had identified the accused including  the  present  appellant  for
the first time in Court.  
It was also held that the refusal of  the  accused
to cooperate and take part in the test identification parade  could  not  be
held adversely against the accused on account of the fact that even  earlier
to the proposed test identification parade the accused were shown to PWs  11
and 12 and also to the son of the deceased.

10.   In addition to the above, the Trial  Court  also  noticed  significant
discrepancies in the evidence of PWs 11 and 12,  particularly,  with  regard
to the identity of the accused who had  held  the  deceased  while  the  two
accused, i.e., accused-appellant Prem Singh  and  co-accused  Vishwa  Bandhu
allegedly fired at the deceased.  In this regard PW-11 in his  evidence  had
named accused Bijender  Singh  alias  Ballu  as  the  person  who  held  the
deceased from behind whereas PW-12 Bharat Lal had named accused Satish.  The
fact that the evidence of PWs 11 and 12 on the above aspect of the  case  is
belied  by  the  evidence  of  PW-3  (Dr.  N.K.Bhandwal)  and   PW-25   (Dr.
R.K.Kaushal) had also been taken note by the learned Trial Court.  Both  PWs
3 and 25 had stated that all the shots could not  have  been  fired  on  the
deceased if he had been held by a third person.   The  above  is  the  broad
basis on which the order of acquittal passed by the learned Trial Court  was
founded.

11.   The parameters within which the High Court was  required  to  exercise
its powers under Section 378 of the Code while hearing  the  State’s  appeal
have already been noticed.  If a conclusion with regard to the innocence  of
the accused is  reasonably  possible  on  the  basis  of  the  evidence  and
materials on record the High Court ought not to have disturbed the  findings
recorded by the Trial Court, even if, on a re-appreciation of the  evidence,
it was inclined to take a different view.  So long the  view  taken  by  the
Trial Court was a possible view the exercise of the appellate power  of  the
High Court under Section 378 CrPC would remain  circumscribed  by  the  well
settled parameters.

12.   In the present case, the learned Trial Court for the  reasons  noticed
came to the conclusion that the accused before it should be  acquitted.   
An
inference adverse to the prosecution on account of  non-examination  of  the
person who could be the star witness  for  the  prosecution,  namely,  Vijay Kumar; 
the inherent lacunae in the evidence of PWs 11 and 12; the doubt  and suspicion with regard to the bonafides of the recovery  of  the  fire  arms;
the failure of the prosecution to establish the linkage between the  weapons recovered and the bullets extracted from the body of the deceased are  facts and conclusions that can be reasonably reached on the basis of the  evidence and materials on record.  
If the aforesaid conclusions are  possible  to  be
reached and we are inclined to so hold, the same cannot be characterized  as
unreasonable or perverse so as to justify the interference made by the  High
Court.

13.   Furthermore, a reading of the order of the High Court  indicates  that
the reversal made was entirely on the basis of the evidence tendered by  PWs
11 and 12. The High Court seems to have accepted the  versions  narrated  by
the aforesaid two witnesses without considering  the  shortcomings  inherent
therein which  made  their  presence  at  the  place  of  occurrence  highly
doubtful, facts that had been elaborately noted by the learned  Trial  Court
in its order.
The mere claim of the prosecution that PW-11  Sohan  Lal  and
PW-12 Bharat Lal were eye witnesses to the occurrence could  not  have  been sufficient for the High Court to  treat  the  ocular  version  of  the  said witnesses as the undisputed version of the occurrence. 
The  High  Court  did
not test the prosecution claim in the backdrop of the totality of the  facts of the case.  
Having done so, we  arrive  at  a  different  conclusion  and,
therefore, take the view that the High Court was not justified in  reversing the acquittal of the  accused-appellant  Prem  Singh.   
We,  therefore,  set aside the order of the High  Court  insofar  as  the  present  appellant  is concerned and restore the order of acquittal passed  by  the  learned  Trial Court.  The  appeal  is  consequently  allowed.   If    the   appellant   is presently  in  custody  he be released







 forthwith unless his custody is  required  in  connection  with  any  other
case.
                                                         ………………………………………CJI.
                                                  [P. SATHASIVAM]



                                                          …………………………………………J.
                                                 [RANJANA PRAKASH DESAI]




                                                          …………………………………………J.
                                                 [RANJAN GOGOI]
NEW DELHI
SEPTEMBER 2, 2013




























                             ITEM NO.1-B      COURT No.14        Section IIB
                                                              (For Judgment)



           S U P R E M E   C O U R T   O F   I N D I
                     RECORD OF PROCEEDINGS

                   CRIMINAL APPEAL No.925 OF 2009


Prem Singh                                  Appellant(s)

    Versus

State of Haryana                          Respondent(s)


DATE 02/09/2013       This matter was called
       on for pronouncement of judgment today.

For Appellant(s)    Mr. D.B. Goswami, Adv.
                         Mr. K.H. Nobib Singh, Adv.

For Respondent(s)         Mr. Suryanarayana Singh, Adv.
                         Ms. Pragati Neekhra, Adv.


       Hon'ble Mr. Justice Ranjan Gogoi  pronounced  the  judgment  of  the
  Bench comprising Hon'ble the Chief Justice, Hon'ble Mrs. Justice  Ranjana
  Prakash Desai and His Lordship.




           The appeal is allowed.  If the appellant is presently in custody
  he be released forthwith unless his custody  is  required  in  connection
  with any other case.




    (Usha Bhardwaj)                        (Usha Sharma)
     (AR-cum-PS)                        (Court Master)

       [Signed reportable judgment is placed on the file ]


-----------------------
[1]    (2012) 10 SCC 383
[2]    Sheo Swarup v. King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227
(2)
[3]    (2007) 4 SCC 415

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