# ANWAR ALI AND ANOTHER v. THE STATE OF HIMACHAL PRADESH

- **Citation:** [2020] 9 S.C.R. 878
- **Court:** Supreme Court of India
- **Decided:** 2020-09-25
- **Case number:** Criminal Appeal No. 1121 of 2016
- **Bench:** Ashok Bhushan, R. Subhash Reddy, M. R. Shah
- **Source:** https://unisonlegal.in/judgment/supreme-court-of-india/anwar-ali-and-another-v-the-state-of-himachal-pradesh-34599
- **Pages:** 28

## Headnote

Penal Code, 1860:
ss. 302/34, 392, 201 and 420 - Prosecution under -
Circumstantial evidence - Acquittal by trial court in view of
contradictions in prosecution case - High Court reversed the
acquittal order holding that the contradictions were minor in nature
- Appeal to Supreme Court - Held: In the case of circumstantial
evidence, the circumstances, taken cumulatively, form a chain so
complete that there is no escape from the conclusion that the crime
was committed by the accused and none else - The contradictions,
which came to be considered by trial court, cannot be said to be
minor - Trial court was justified in recording the acquittal observing
that prosecution failed to complete entire chain of events - High
Court was not justified in reversing acquittal order.
Code of Criminal Procedure, 1973:
s. 378 - Appeal against acquittal - Scope and ambit of -
Held: Court can interfere with order of acquittal only in compelling
circumstances, where the order under appeal is perverse - In the
present case, the acquittal order under appeal cannot be said to be
perverse as the same was based on appreciation of entire evidence
on record.
Investigation:
Defective investigation - Non-compliance of provisions u/ss.
166(3) & (4) and 100(4) Cr. P.C. - Held: Non-compliance of the
provisions may not be a ground to acquit the accused - But, where
recovery is seriously doubted, non-compliance would play an
important role - Code of Criminal Procedure, 1973 - ss. 100(4)
and 166(3) & (4).
[2020] 9 S.C.R. 878
878
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Evidence:
Circumstantial evidence - Motive - Absence - Effect of -
Held: Proving of motive does supply a link in the chain of
circumstantial evidence - But absence of motive cannot be a ground
to reject prosecution case - Absence of motive can be a factor that
weighs in favour of the accused.
Allowing the appeal, the Court
HELD: 1.1 In exceptional cases where there are
compelling circumstances, and the judgment under appeal is found
to be perverse, the appellate court can interfere with the order
of acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the
trial court's acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference.
[Para 5.2.1][894-E-F]
Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9
SCR 1039; Vijay Mohan Singh v. State of Karnataka
(2019) 5 SCC 436 : [2019] 6 SCR 994 - relied on.
1.2 If a decision is arrived at, on the basis of no evidence
or thoroughly unreliable evidence that no reasonable person
would act upon it, the order would be perverse. But if there is
some evidence on record which is acceptable and which could be
relied upon, the conclusions would not be treated as perverse
and the findings would not be interfered with. [Para 5.2.3]
[895-C-D]
Kuldeep Singh v. Commissioner of Police (1999) 2 SCC
10 : [1998] 3 Suppl. SCR 594 - relied on.
1.3 In the present case, the findings recorded by the trial
Court, based on appreciation of the entire evidence on record,
cannot be said to be either perverse or contrary to the evidence
on record and/or it cannot be said that the trial Court did not
consider any material evidence on record. [Para 10][905-B]
2.1 In case of a circumstantial evidence, the circumstances,
taken cumulatively, should form a chain so complete that there is
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no escape from the conclusion that within all human probability,
the crime was committed by the accused and none else and the
circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but should be
inconsistent with his innocence. [Para 5.4][899-A-B]
Babu v. St

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ANWAR ALI AND ANOTHER
v.
THE STATE OF HIMACHAL PRADESH
(Criminal Appeal No. 1121 of 2016)
SEPTEMBER 25, 2020
[ASHOK BHUSHAN, R. SUBHASH REDDY AND
M. R. SHAH, JJ.]
Penal Code, 1860:
ss. 302/34, 392, 201 and 420 - Prosecution under -
Circumstantial evidence - Acquittal by trial court in view of
contradictions in prosecution case - High Court reversed the
acquittal order holding that the contradictions were minor in nature
- Appeal to Supreme Court - Held: In the case of circumstantial
evidence, the circumstances, taken cumulatively, form a chain so
complete that there is no escape from the conclusion that the crime
was committed by the accused and none else - The contradictions,
which came to be considered by trial court, cannot be said to be
minor - Trial court was justified in recording the acquittal observing
that prosecution failed to complete entire chain of events - High
Court was not justified in reversing acquittal order.
Code of Criminal Procedure, 1973:
s. 378 - Appeal against acquittal - Scope and ambit of -
Held: Court can interfere with order of acquittal only in compelling
circumstances, where the order under appeal is perverse - In the
present case, the acquittal order under appeal cannot be said to be
perverse as the same was based on appreciation of entire evidence
on record.
Investigation:
Defective investigation - Non-compliance of provisions u/ss.
166(3) & (4) and 100(4) Cr. P.C. - Held: Non-compliance of the
provisions may not be a ground to acquit the accused - But, where
recovery is seriously doubted, non-compliance would play an
important role - Code of Criminal Procedure, 1973 - ss. 100(4)
and 166(3) & (4).
[2020] 9 S.C.R. 878
878
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Evidence:
Circumstantial evidence - Motive - Absence - Effect of -
Held: Proving of motive does supply a link in the chain of
circumstantial evidence - But absence of motive cannot be a ground
to reject prosecution case - Absence of motive can be a factor that
weighs in favour of the accused.
Allowing the appeal, the Court
HELD: 1.1 In exceptional cases where there are
compelling circumstances, and the judgment under appeal is found
to be perverse, the appellate court can interfere with the order
of acquittal. The appellate court should bear in mind the
presumption of innocence of the accused and further that the
trial court's acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference.
[Para 5.2.1][894-E-F]
Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9
SCR 1039; Vijay Mohan Singh v. State of Karnataka
(2019) 5 SCC 436 : [2019] 6 SCR 994 - relied on.
1.2 If a decision is arrived at, on the basis of no evidence
or thoroughly unreliable evidence that no reasonable person
would act upon it, the order would be perverse. But if there is
some evidence on record which is acceptable and which could be
relied upon, the conclusions would not be treated as perverse
and the findings would not be interfered with. [Para 5.2.3]
[895-C-D]
Kuldeep Singh v. Commissioner of Police (1999) 2 SCC
10 : [1998] 3 Suppl. SCR 594 - relied on.
1.3 In the present case, the findings recorded by the trial
Court, based on appreciation of the entire evidence on record,
cannot be said to be either perverse or contrary to the evidence
on record and/or it cannot be said that the trial Court did not
consider any material evidence on record. [Para 10][905-B]
2.1 In case of a circumstantial evidence, the circumstances,
taken cumulatively, should form a chain so complete that there is
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no escape from the conclusion that within all human probability,
the crime was committed by the accused and none else and the
circumstantial evidence in order to sustain conviction must be
complete and incapable of explanation of any other hypothesis
than that of the guilt of the accused and such evidence should not
only be consistent with the guilt of the accused but should be
inconsistent with his innocence. [Para 5.4][899-A-B]
Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9
SCR 1039; G. Parshwanath v. State of Karnataka
(2010) 8 SCC 593 : [2010] 10 SCR 377 - relied on.
2.2 The contradictions which came to be considered by the
trial Court cannot be said to be minor contradictions. The High
Court without giving any cogent reasons has interfered with the
findings of fact recorded by the trial Court solely by observing
that those contradictions were minor contradictions.
[Para 6.1][902-D-F]
2.3 In the present case, according to the prosecution and
PW18-IO, on the basis of disclosure statements made by the
accused on 8.9.2010, the knife and rope were recovered on
9.9.2010. However, PW4 and PW5 have categorically stated in
their deposition that the police brought the sniffer dogs on
2.9.2010 and the sniffer dogs recovered rope, knife etc. on
2.9.2010. So, according to even PW4 and PW5, the rope and knife
were recovered on 2.9.2010 with the help of sniffer dogs.
However, neither in the FIR there was a mention of recovery of
knife and rope on 2.9.2010 with the help of sniffer dogs nor the
IO in his examination-in-chief has stated so. The accused were
arrested on 8.9.2010 and prior thereto on 2.9.2010 the
investigating officer visited the spot from where the knife and
rope was recovered on 2.9.2010. In cross-examination, the IO
admitted that he visited the spot from where the knife was
recovered with sniffer dogs on 2.9.2010. He has also admitted in
the cross-examination that this fact has not been mentioned in
the FIR or in the statement of any witness. Thus, the prosecution
and the IO suppressed the material facts. Even in the crossexamination, the IO has stated that the sniffer dog had done
nothing on the spot. In the cross-examination, he has also
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specifically stated that "it is incorrect to suggest that the sniffer
dog had traced the strings Ex. P52, knife Ex. P59 and vest Ex.
P54. However, PW4 and PW5 in their deposition have
categorically stated that the knife and rope were recovered on
2.9.2010. The aforesaid cannot be said to be minor contradictions.
Therefore, the trial Court was justified in not believing the
disclosure statements of the accused and the recovery of the
knife, rope etc. on 9.9.2010 as alleged by the prosecution. From
evidence, it emerges that the knife, rope and vest were recovered
on 2.9.2010 i.e., much prior to 8.9.2010 when the accused were
arrested. [Para 6.1][902-F-H; 903-A-C]
2.4 Even the recovery of jeep from Chandigarh and recovery
of photographs and the recovery of mobile phone belonging to
PW7 from the jeep also create serious doubts. The Investigating
Officer did not follow the procedure as required to be followed
under Section 166 (3 & 4), Cr.P.C. Even he did not comply with
the provisions of Section 100 (4) Cr.P.C. Non-following of the
aforesaid provisions alone may not be a ground to acquit the
accused. However, considering the overall surrounding
circumstances and in a case where recovery is seriously doubted,
non-compliance of the aforesaid, play an important role.
[Para 7][903-D-F]
Ronny v. State of Maharashtra (1998) 3 SCC 625 :
[1998] 2 SCR 162; C. Muniappan v. State of Tamil
Nadu (2010) 9 SCC 567 : [2010] 10 SCR 262; State of
Punjab v. Balbir Singh (1994) 3 SCC 299 : [1994] 2
SCR 208; Sudha Renukaiah v. State of Andhra Pradesh
(2017) 13 SCC 81 - referred to.
2.5 As regards the recovery of the mobile phone, PW7 has
stated that his mobile was stolen or cheated, he never filed any
complaint earlier. Even the IO has not tried to have the call details
of the mobile. He has not tried to verify from the call details, the
conversation to or from the mobile. Even the disclosure statement
of the accused with respect to crates being sold to PW6 is found
to be suspicious and doubtful. Cogent reasons have been given
by the trial Court for the same. [Para 8][903-G-H; 904-A]
ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH
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2.6 If motive is proved, that would supply a link in the chain
of circumstantial evidence but the absence thereof cannot be a
ground to reject the prosecution case. However, at the same time,
absence of motive in a case depending on circumstantial evidence
is a factor that weighs in favour of the accused. [Para 9][904-C]
Suresh Chandra Bahri v. State of Bihar (1995) 1 Suppl.
SCC 80 : [1994] 1 Suppl. SCR 483; Babu v. State of
Kerala (2010) 9 SCC 189 : [2010] 9 SCR 1039
- relied on.
2.7 Trial Court was justified in recording the acquittal by
observing that prosecution has failed to complete the entire chain
of events. Therefore, in the facts and circumstances of the case,
the High Court is not justified in reversing the order of acquittal.
[Para 10][905-C]
Bannareddy v. State of Karnataka (2018) 5 SCC 790 :
[2018] 4 SCR 623; State of Rajasthan v. Mukesh Kumar
alias Mahesh Dhaulpuria (2019) 7 SCC 678; State of
Rajasthan v. Madan alias Madaniya (2019) 13 SCC
653 - referred to.
Case Law Reference
[2018] 4 SCR 623
referred to
Para 3.1
(2019) 7 SCC 678
referred to
Para 3.1
(2019) 13 SCC 653
referred to
Para 3.1
[1998] 2 SCR 162
referred to
Para 4.4
[2010] 10 SCR 262
referred to
Para 4.4
[1994] 2 SCR 208
referred to
Para 4.4.
(2017) 13 SCC 81
referred to
Para 4.4
[2010] 9 SCR 1039
relied on
Para 5.2.1
[1998] 3 Suppl. SCR 594
relied on
Para 5.2.3
[2019] 6 SCR 994
relied on
Para 5.3
[2010] 9 SCR 1039
relied on
Para 5.4
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[2010] 10 SCR 377
relied on
Para 5.5
[1994] 1 Suppl. SCR 483
relied on
Para 9
[2010] 9 SCR 1039
relied on
Para 9
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1121 of 2016.
From the Judgment and Order dated 20.09.2016 of the High Court
of Himachal Pradesh at Shimla in Crl. Appeal No. 464 of 2012.
Manan Kumar Mishra, Anjani Kumar Mishra, Hardeep Kaur
Mishra, Ms. Anjul Dwivedi, Sunil Kumar Agarwal, Shiv Ram Pandey,
Abhimanyu Jhamba, Ms. R.A. Thonpinao Thangal, Ashish Jhamb,
Ms. Hemlata Ranga, Ms. Hatnei Mawi, Abhinav Mukerji, Advs. for the
appearing parties.
The Judgment of the Court was delivered by
M. R. SHAH, J.
1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 20.09.2016 passed by the High Court of Himachal
Pradesh in Criminal Appeal No. 464 of 2012, by which the High Court
has allowed the said appeal preferred by the respondent - The State of
Himachal Pradesh and has reversed the judgment and order of acquittal
passed by the learned trial Court and consequently has convicted the
appellants - original accused for the offences punishable under Sections
302 read with 34, 392, 201 and 420, IPC and has sentenced the appellants
herein - original accused to undergo life imprisonment for the offences
punishable under Section 302 read with 34, IPC, the appellants - original
accused have preferred the present appeal.
2. That the appellants herein - original accused were charged for
the offences punishable under Sections 302 read with 34, 392, 420 and
201, IPC for having committed the murder of one Deepak. That the
dead body of the deceased was found on 2.9.2010 near bypass Bihali
Road, Chandigarh. That the dead body was seen by one Jashwinder
Singh, PW4, who informed the police station, Bhunter. On receiving
such information, the police came on the spot; recorded the statement of
PW4; prepared Rukka and sent the same through Constable Pushparaj,
PW2 to police station, Bhunter. FIR was registered by Head Constable
ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH
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Tara Chand. That the dead body was identified by the father of the
deceased. The investigating officer, PW18 conducted the investigation.
The dead body was sent for post mortem.
SHO/SI Narayan received a secret information on 5.9.2010 that
one vehicle (jeep) was lying at Chandigarh in abandoned condition. IO
along with the other police officers went to Chandigarh and recovered
the abandoned vehicle from Sector 45C, Chandigarh. On checking the
jeep, one envelope was found to have been recovered containing mobile
phone, three photographs and the documents of the vehicle were lying
on the dash board of the jeep. IO took into possession the vehicle and
the documents vide memo. IO dialled from recovered mobile to his own
mobile and the number was detected as 9805523262. From the recovered
photographs, the accused were searched at place Pandoh Bajaura Aut.
Both the accused were arrested on 8.9.2010. During the investigation,
the IO recovered the crates from Punjab. IO also recovered one knife
and the rope on 09.09.2010, alleged to have been used in commission of
the offence. After conclusion of the investigation, IO filed chargesheet
against the accused persons for the aforesaid offences.
2.1 To prove the case against the accused, the prosecution
examined in all 9 witnesses, out of 19 witnesses shown in the chargesheet,
details of which are given below:
Sl.No.
Name
01.
Biri Singh (attesting witness on recovery of cloths)
(Ex. P.W. 2/C & Ex. P.W.2/D)
02
Dinesh Singh (attesting witness on recovery of Jeep,
photographs, Mobile) Ex. P.W. 1/A
03.
Lucky (witness on recovery of clothes)
04
Subhash (Father of deceased)
05
Rampal, witness of disclosure statement as per PW3
06
Niranjan Singh
He was attesting witness on the seizure of crates
from Ropar (Ext. P.W. 1/B)
07
Jyoti Kumar, Witness on recovery of crates from
Ropar
08
Rajendra Kohli + Sushil Kumar
09
H.C. Pune Ram
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The prosecution also brought on record the documentary evidence
of the aforesaid witnesses. After conclusion of the recording of the
evidence, statement of the accused persons under Section 313, Cr.P.C.
were recorded.
Before the trial Court, the prosecution mainly relied upon the
disclosure statements, recovery of vehicle (jeep), recovery of knife and
rope from the spot, recovery of mobile and photographs (from the jeep).
Before the trial Court, the case was based on circumstantial evidence
as there was no direct evidence. That on appreciation of evidence on
record, both oral as well as documentary, the learned trial Court by a
detailed reasoning did not believe the disclosure statements, recovery of
knife and rope alleged to have been used for commission of the offence,
recovery of mobile and the recovery of photographs from the jeep. That
on appreciation of evidence, the learned trial Court found that the
prosecution withheld the material information with respect to the sniffer
dogs and on appreciation of evidence found that the recoveries were
made earlier and the panchnama of the same were prepared subsequently
on which PW5 and PW6 put their signatures. Having found that the
prosecution has failed to establish and prove the complete chain of events
and that it was a case of circumstantial evidence, by a detailed judgment
and order, the learned trial Court acquitted both the accused for the
offences for which they were tried.
2.2 On appeal by the State, by the impugned judgment and order,
the High Court has reversed the judgment and order of acquittal passed
by the learned trial Court and consequently has convicted the accused
for the offences punishable under Sections, 302 read with 34, 392, 420
and 201, IPC. By the impugned judgment and order, the High Court has
sentenced the appellants - original accused to undergo life imprisonment
for the offence under Section 302 read with 34, IPC. The High Court
has also sentenced the appellants to undergo rigorous imprisonment for
a period of seven years and to pay a fine of Rs.25,000/- each for the
offence under Section 392, IPC, and in default of payment of fine, further
rigorous imprisonment for a period of three months. The High Court has
also sentenced the appellants to undergo rigorous imprisonment for a
period of seven years and to pay a fine of Rs.10,000/- each for the
offence under Section 420, IPC, and in default of payment of fine, further
rigorous imprisonment for a period of three months. The High Court has
also sentenced the appellants to undergo rigorous imprisonment for a
ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH
[M. R. SHAH, J.]
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period of two years and to pay a fine of Rs.5,000/- each for the offence
under Section 201, IPC, and in default of payment of fine, further rigorous
imprisonment for a period of three months. However, all the sentences
were directed to run concurrently.
2.3 Feeling aggrieved and dissatisfied with the impugned judgment
and order passed by the High Court in reversing the judgment and order
of acquittal and convicting the appellants for the aforesaid offences, the
appellants-original accused have preferred the present appeal.
3. Learned counsel appearing on behalf of the appellants-accused
has made the following submissions:
i)
that the High Court has exceeded in its jurisdiction in reversing
the well-reasoned judgment and order of acquittal passed by
the learned trial Court and consequently convicting the
accused;
ii)
that the High Court has reversed the judgment of the acquittal
on suspicion, surmises and conjectures;
iii) that the learned trial Court, as such, committed no error in
acquitting the accused;
iv) that the learned trial Court on appreciation of evidence
disbelieved the recovery of knife and rope at the instance of
the accused and it was held that a very important link of the
chain was missing;
v)
that the learned trial Court gave a specific finding on
appreciation of evidence on doubtful disclosure statements;
vi) that the High Court has failed to appreciate and consider that
the knife, which is alleged to have been recovered on the
disclosure statements of the accused persons, had already
been recovered on 2.9.2010 with the help of sniffer dogs,
which was established from the evidence of PW4 and PW5;
vii) that the High Court ought to have appreciated that the recovery
of knife and rope alleged to have been recovered on the
disclosure statements of the accused persons on 09.09.2010
was concocted one and to fill up the gaps in the prosecution
case;
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viii) that even the recovery of photographs, mobile phone of PW7
and the jeep from Chandigarh on 6.9.2010 is itself very
doubtful, which came to be considered in detail by the learned
trial Court;
ix) that even the conduct of Bhuntar police and the IO in not
informing or taking help of the jurisdictional police and
Chandigarh police while conducting investigation in those
areas, as required under Section 166(3) Cr.P.C. and other
lapses has made the entire prosecution case full of doubts
and suspicious;
x)
that even the IO has not tried to examine any independent
witness of Chandigarh, though several people were there at
the time of recovery;
xi) that even the recovery of mobile of PW7 is very doubtful.
The IO never tried to find out the call details of recovered
mobile. Even he did not look into call-log of the mobile himself
in order to find out the contact details of the real culprits.
Even the IO did not enquire that after robbing the mobile of
PW7, who were the persons contacted by the miscreants;
how was the mobile used by the accused; whether the mobile
was taken to Ropar by the accused; who were the persons
taking mobile to Chandigarh and kept in the jeep with the
photographs of the appellants? All these questions could have
been easily solved from the call-log/call details of the mobile
if it was really stolen and recovered from the jeep;
xii) that even the prosecution has not examined the best material
witnesses like Biri Singh, Dinesh Singh, Lucky, Subash (the
father of the deceased), Ram Pal, Niranjan Singh and Jyoti
Kumar. It is submitted that non-examination of material
witnesses on recovery and seizure memos has proved fatal
for the prosecution and has created serious doubts on the
prosecution case. It is submitted that there is absolutely no
reason as to why these material witnesses were not examined
by the prosecution, and most of the police witnesses only were
produced in the court, It is submitted that non-examination of
material witnesses is fatal for the prosecution;
ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH
[M. R. SHAH, J.]
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xiii) that it is an admitted position that it is a case of circumstantial
evidence. Therefore, before convicting the accused, the
prosecution has to prove the complete chain of events which
will lead to the only conclusion that it is the accused who
alone has committed the offence. It is submitted that in the
present case the prosecution as such has failed to complete
the chain of events; and
xiv) that there are material contradictions and even the recovery
of jeep, knife and rope, photographs from the jeep, as observed
and held by the learned trial Court, is doubtful and creates
serious doubts and therefore the learned trial Court rightly
acquitted the accused, which ought not to have interfered
with by the High Court.
3.1 Making the above submissions and taking us to the deposition
of PW4, PW5 and PW18 and relying upon the decisions of this Court in
the cases of Babu v. State of Kerala, (2010) 9 SCC 189; Bannareddy
v. State of Karnataka (2018) 5 SCC 790; State of Rajasthan v.
Mukesh Kumar alias Mahesh Dhaulpuria (2019) 7 SCC 678; and
State of Rajasthan v. Madan alias Madaniya, (2019) 13 SCC 653,
it is prayed to allow the present appeal and set aside the impugned
judgment and order passed by the High Court and restore the wellreasoned judgment and order of acquittal passed by the learned trial
Court.
4. The present appeal is vehemently opposed by the learned counsel
appearing on behalf of the respondent - State of Himachal Pradesh.
4.1 It is submitted that in the present case the High Court has
after re-appreciation of entire evidence on record, found the accused
guilty for the unnatural death of Deepak Kumar deceased. It is submitted
that as such the re-appreciation of the entire evidence by the first appellate
court is permissible;
4.2 It is submitted that the High Court, on re-appraisal of the
entire evidence on record, has considered the following circumstances
pointing to the guilt of the accused:
a) recovery of jeep, mobile phone and photographs from
Chandigarh
b) recovery of weapon of offence on the disclosure statement
of appellant no.1 - Anwar Ali
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c) recovery of crates on the disclosure statement of appellant
no.1 - Anwar Ali
d) recovery of clothes of accused
e) medical evidence
f)
no defence evidence led
4.3 It is submitted that the High Court has given cogent reasons
while considering the afore-stated circumstances against the accused.
It is submitted that the High Court has convicted the accused on reappreciation of the entire evidence on record, more particularly the
deposition of PW1, PW3, PW4, PW5, PW11 and PW18.
4.4 Now so far as the submission on behalf of the accused on
non-examination of independent witnesses at the time of recovery and
non-compliance of the provisions of Section 100(4) Cr.P.C. and other
related provisions is concerned, it is submitted by the learned counsel
appearing on behalf of the respondent-State that the persons who were
gathered at the time of recovery were mere spectators and none had
come forward to act as a witness in the matter.
It is submitted that even otherwise as held by this Court in the
case of Ronny v. State of Maharashtra, (1998) 3 SCC 625 that even if
the witness has been brought by the investigating agency along with
them, they cannot be disbelieved only on that ground.
4.5 In the alternative, it is submitted by the learned counsel
appearing on behalf of the respondent-State that non-compliance of the
directory provisions contained in Section 100 Cr.P.C. can at the most be
treated as defective investigation but that cannot come in the way of
dispensation of justice. Heavy reliance is placed upon the decision of
this Court in the case of C. Muniappan v. State of Tamil Nadu, (2010)
9 SCC 567 (para 55).
It is submitted that as held by this Court in the case of State of
Punjab v. Balbir Singh, (1994) 3 SCC 299 (para 6), a defective
investigation if any does not vitiate the trial. It is submitted that as held
by this Court in the case of Sudha Renukaiah v. State of Andhra
Pradesh, (2017) 13 SCC 81, in which the decision in the case of
Muniappan (supra) was relied upon, that even if the IO has committed
any error and has been negligent in carrying out any investigation or in
the investigation there is some omission and defect, it is the legal obligation
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on the part of the court to examine the prosecution evidence de hors
such lapses.
4.5 It is further submitted that in the present case the recovery of
weapon of offence; recovery of jeep; recovery of photographs and the
stolen mobile phone of PW7; recovery of crates have been established
and proved by the prosecution beyond doubt by examining the relevant
witnesses, which as such, were not believed by the learned trial Court
for minor contradictions. It is submitted that therefore the order of acquittal
passed by the learned trial Court warranted interference by the High
Court.
4.6 Now so far as the submission on behalf of the accused that in
the present case the High Court has committed a grave error in interfering
with the order of acquittal passed by the learned trial Court is concerned,
it is submitted that in the present case of circumstantial evidence, the
factum probandum or the primary fact stands established and having
regard to the common cause and natural events and to human conduct
and their relations, the complete chain of circumstances indicating the
guilt of the accused is established. Reliance is placed upon the decision
of this Court in the case of G. Parshwanath v. State of Karnataka,
(2010) 8 SCC 593 (paragraphs 22 to 24).
Heavy reliance is also placed on the recent decision of this Court
in the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5
SCC 436, paragraphs 30, 31. 31.1, 31.2, 31.3, 31.4 and 32 of the said
decision. It is submitted that in the aforesaid decision, after considering
the entire law on interference by the High Court with an order of acquittal,
it is observed and held that once the appeal is entertained against the
order of acquittal, the High Court would be entitled to re-appreciate the
entire evidence independently and come to its own conclusion. However,
ordinarily, the High Court would give due importance to the opinion of
the Sessions Judge if the same was arrived at after proper appreciation
of the evidence. It is submitted that it is further observed that where the
Sessions Judge has absolutely made a wrong assumption of a very material
and clinching aspect in the peculiar circumstances of the case and if the
High Court is satisfied that the order of acquittal passed by the learned
trial Court is perverse and suffers from infirmities, it is always open for
the High Court to interfere with the order of acquittal passed by the
learned trial Court.
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4.8 Making the above submissions and relying upon the aforesaid
decisions of this Court, it is prayed to dismiss the present appeal.
5. We have heard the learned counsel for the respective parties
at length. We have gone through in detail the judgment and order of
acquittal passed by the learned trial Court as well as the impugned
judgment and order passed by the High Court interfering with the order
of acquittal passed by the learned trial Court and thereby convicting the
accused. We have also gone through the relevant evidences, both oral
as well as documentary.
5.1 At the outset, it is required to be noted that this is a case of
reversal of acquittal by the High Court in a case of circumstantial
evidence. Therefore, the first and foremost thing which is required to be
considered is, whether in the facts and circumstances of the case, the
High Court is justified in interfering with the order of acquittal passed by
the learned trial Court?
5.2 Before considering the appeal on merits, the law on the appeal
against acquittal and the scope and ambit of Section 378 Cr.P.C. and the
interference by the High Court in an appeal against acquittal is required
to be considered.
5.2.1 In the case of Babu (supra), this Court had reiterated the
principles to be followed in an appeal against acquittal under Section 378
Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
12. This Court time and again has laid down the guidelines for the
High Court to interfere with the judgment and order of acquittal
passed by the trial court. The appellate court should not ordinarily
set aside a judgment of acquittal in a case where two views are
possible, though the view of the appellate court may be the more
probable one. While dealing with a judgment of acquittal, the
appellate court has to consider the entire evidence on record, so
as to arrive at a finding as to whether the views of the trial court
were perverse or otherwise unsustainable. The appellate court is
entitled to consider whether in arriving at a finding of fact, the
trial court had failed to take into consideration admissible evidence
and/or had taken into consideration the evidence brought on record
contrary to law. Similarly, wrong placing of burden of proof may
also be a subject-matter of scrutiny by the appellate court. (Vide
Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir
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v. State of Bihar (1990) 4 SCC 17,Shailendra Pratap v. State
of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P
(2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC
731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.
Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu
v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State
of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010)
2 SCC 445)
13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the
Privy Council observed as under: (IA p. 404)
"... the High Court should and will always give proper weight and
consideration to such matters as (1) the views of the trial Judge
as to the credibility of the witnesses; (2) the presumption of
innocence in favour of the accused, a presumption certainly not
weakened by the fact that he has been acquitted at his trial; (3)
the right of the accused to the benefit of any doubt; and (4) the
slowness of an appellate court in disturbing a finding of fact arrived
at by a Judge who had the advantage of seeing the witnesses."
14. The aforesaid principle of law has consistently been followed
by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1,
Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G.
Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu
Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.
State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of
M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran
(2007) 3 SCC 755)
15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,
this Court reiterated the legal position as under: (SCC p. 432, para
42)
"(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.
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(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."
16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this
Court reiterated the said view, observing that the appellate court
in dealing with the cases in which the trial courts have acquitted
the accused, should bear in mind that the trial court's acquittal
bolsters the presumption that he is innocent. The appellate court
must give due weight and consideration to the decision of the trial
court as the trial court had the distinct advantage of watching the
demeanour of the witnesses, and was in a better position to
evaluate the credibility of the witnesses.
17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the
Court again examined the earlier judgments of this Court and laid
down that: (SCC p. 374, para 20)
"20. ... an order of acquittal should not be lightly interfered with
even if the court believes that there is some evidence pointing out
the finger towards the accused."
18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court
gave certain illustrative circumstances in which the Court would
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be justified in interfering with a judgment of acquittal by the High
Court. The circumstances include: (SCC p. 286, para 28)
"(i) The High Court's decision is based on totally erroneous view
of law by ignoring the settled legal position;
(ii) The High Court's conclusions are contrary to evidence and
documents on record;
(iii) The entire approach of the High Court in dealing with the
evidence was patently illegal leading to grave miscarriage of justice;
(iv) The High Court's judgment is manifestly unjust and
unreasonable based on erroneous law and facts on the record of
the case;
(v) This Court must always give proper weight and consideration
to the findings of the High Court;
(vi) This Court would be extremely reluctant in interfering with a
case when both the Sessions Court and the High Court have
recorded an order of acquittal."
A similar view has been reiterated by this Court in Dhanapal v.
State (2009) 10 SCC 401.
19. Thus, the law on the issue can be summarised to the effect
that in exceptional cases where there are compelling
circumstances, and the judgment under appeal is found to be
perverse, the appellate court can interfere with the order of
acquittal. The appellate court should bear in mind the presumption
of innocence of the accused and further that the trial court's
acquittal bolsters the presumption of his innocence. Interference
in a routine manner where the other view is possible should be
avoided, unless there are good reasons for interference."
 (emphasis supplied)
5.2.2 When the findings of fact recorded by a court can be held to
be perverse has been dealt with and considered in paragraph 20 of the
aforesaid decision, which reads as under:
"20. The findings of fact recorded by a court can be held to be
perverse if the findings have been arrived at by ignoring or
excluding relevant material or by taking into consideration
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irrelevant/inadmissible material. The finding may also be said to
be perverse if it is "against the weight of evidence", or if the
finding so outrageously defies logic as to suffer from the vice of
irrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)
4 SCC 635, Excise and Taxation Officer-cum-Assessing
Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni
Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya
Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State
(2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State
of A.P (2009) 10 SCC 636)."
(emphasis supplied)
5.2.3 It is further observed, after following the decision of this
Court in the case of Kuldeep Singh v. Commissioner of Police (1999)
2 SCC 10, that if a decision is arrived at on the basis of no evidence or
thoroughly unreliable evidence and no reasonable person would act upon
it, the order would be perverse. But if there is some evidence on record
which is acceptable and which could be relied upon, the conclusions
would not be treated as perverse and the findings would not be interfered
with.
5.3 In the recent decision of Vijay Mohan Singh (supra), this
Court again had an occasion to consider the scope of Section 378 Cr.P.C.
and the interference by the High Court in an appeal against acquittal.
This Court considered catena of decisions of this Court right from 1952
onwards. In paragraph 31, it is observed and held as under:
"31. An identical question came to be considered before this Court
in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before
this Court, the High Court interfered with the order of acquittal
passed by the learned trial court on re-appreciation of the entire
evidence on record. However, the High Court, while reversing
the acquittal, did not consider the reasons given by the learned
trial court while acquitting the accused. Confirming the judgment
of the High Court, this Court observed and held in para 10 as
under: (SCC p. 233)
"10. Once the appeal was rightly entertained against the order
of acquittal, the High Court was entitled to reappreciate the
entire evidence independently and come to its own conclusion.
Ordinarily, the High Court would give due importance to the
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opinion of the Sessions Judge if the same were arrived at after
proper appreciation of the evidence. This rule will not be
applicable in the present case where the Sessions Judge has
made an absolutely wrong assumption of a very material and
clinching aspect in the peculiar circumstances of the case."
31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the
High Court reversed the order of acquittal passed by the learned
trial court and held the accused guilty on re-appreciation of the
entire evidence on record, however, the High Court did not record
its conclusion on the question whether the approach of the trial
court in dealing with the evidence was patently illegal or the
conclusions arrived at by it were wholly untenable. Confirming
the order passed by the High Court convicting the accused on
reversal of the acquittal passed by the learned trial court, after
being satisfied that the order of acquittal passed by the learned
trial court was perverse and suffered from infirmities, this Court
declined to interfere with the order of conviction passed by the
High Court. While confirming the order of conviction passed by
the High Court, this Court observed in para 8 as under: (SCC p.
416)
"8. We have perused the judgment under appeal to ascertain
whether the High Court has conformed to the aforementioned
principles. We find that the High Court has not strictly proceeded
in the manner laid down by this Court in Ramesh Babulal Doshi
v. State of Gujarat (1996) 9 SCC 225 viz.