Home Case Index All Cases Indian Laws Indian Laws + SC Indian Laws - 2022 (4) TMI SC This
Forgot password New User/ Regiser ⇒ Register to get Live Demo
2022 (4) TMI 1563 - SC - Indian LawsOverturning of order of acquittal against A-14 to A-16 - witnesses who spoke about these Accused's presence failed to consider the import of Section 149 Indian Penal Code - Scope of Appeal filed against the Acquittal - Delay in sending the (FIR) First Information Report to the Magistrate - Delay in Recording the Statement Under Section 161 Code of Criminal Procedure - Recovery Under Section 27 of the Evidence Act. Scope of Appeal filed against the Acquittal - HELD THAT:- While dealing with an appeal against acquittal by invoking Section 378 of the Code of Criminal Procedure, the Appellate Court has to consider whether the Trial Court's view can be termed as a possible one, particularly when evidence on record has been analyzed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the Accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the Accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the Accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Delay in sending the (FIR) First Information Report to the Magistrate - HELD THAT:- The first information report in a criminal case starts the process of investigation by letting the criminal law into motion. It is certainly a vital and valuable aspect of evidence to corroborate the oral evidence. Therefore, it is imperative that such an information is expected to reach the jurisdictional Magistrate at the earliest point of time to avoid any possible ante-dating or ante-timing leading to the insertion of materials meant to convict the Accused contrary to the truth and on account of such a delay may also not only gets bereft of the advantage of spontaneity, there is also a danger creeping in by the introduction of a coloured version, exaggerated account or concocted story as a result of deliberation and consultation. However, a mere delay by itself cannot be a sole factor in rejecting the prosecution's case arrived at after due investigation. Ultimately, it is for the Court concerned to take a call. Such a view is expected to be taken after considering the relevant materials. Delay in Recording the Statement Under Section 161 Code of Criminal Procedure - HELD THAT:- The Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense. An inordinate and unexplained delay may be fatal to the prosecution's case but only to be considered by the Court, on the facts of each case. There may be adequate circumstances for not examining a witness at an appropriate time. However, non-examination of the witness despite being available may call for an explanation from the Investigating Officer. It only causes doubt in the mind of the Court, which is required to be cleared - Similarly, a statement recorded, as in the present case, the investigation report is expected to be sent to the jurisdictional Magistrate at the earliest. A long, unexplained delay, would give room for suspicion. Recovery Under Section 27 of the Evidence Act - HELD THAT:- Section 27 of the Evidence Act is an exception to Sections 24 to 26. Admissibility Under Section 27 is relatable to the information pertaining to a fact discovered. This provision merely facilitates proof of a fact discovered in consequence of information received from a person in custody, Accused of an offence - The onus is on the prosecution to prove the fact discovered from the information obtained from the Accused. This is also for the reason that the information has been obtained while the Accused is still in the custody of the police. Having understood the aforesaid object behind the provision, any recovery Under Section 27 will have to satisfy the Court's conscience. One cannot lose sight of the fact that the prosecution may at times take advantage of the custody of the Accused, by other means. The Court will have to be conscious of the witness's credibility and the other evidence produced when dealing with a recovery Under Section 27 of the Evidence Act. There is a structured pattern in the recovery of A-10 to A-13. There appears to be some anxiety on the part of the prosecution to make compulsory recoveries. The recoveries are said to have been made from the house of P.W. 21, having no connection with A-10. The fallacious notion that the recovery of such an incriminating Article was made from a place that might also be accessible to the P.W. 21, is also one of the doubts we sense in the following factual analogy of this case. P.W. 21 is also the same witness who has given his 161 Code of Criminal Procedure statement nine days after the incident pertaining to the Accused. The conviction rendered by the High Court against the Appellants in Criminal Appeal No. 430-431 of 2015 arrayed as A-10 to A-13 stands set aside. Consequently, the appeals filed by Accused Nos. A-10 to A-13 being Criminal Appeal No. 430-431 of 2015 are allowed by setting aside the judgment rendered by the High Court and restoring the acquittal rendered by the Trial Court. Bail bonds, if any, pertaining to A-10 to A-13 stand discharged.
|