TMI Blog2022 (7) TMI 1374X X X X Extracts X X X X X X X X Extracts X X X X ..... ance in a case involving eyewitnesses, it may not be so when an accused is implicated based upon the circumstantial evidence. There is no sufficient link to come to the irresistible conclusion pointing the guilt only to the appellant. Much reliance has been made on the recoveries made. When the observation Mahazar was prepared along with the sketch and the inquest conducted, admittedly, scores of persons were present. No independent witness was made to sign and the evidence on behalf of the prosecution that they did not volunteer to do so, cannot be accepted. A witness may not come forward to adduce evidence at times when asked to act as an eyewitness. However, when a large number of persons were available near the dead body, it is incomprehensible as to how all of them refused to sign the documents prepared by the police - the trial Court rightly doubted the recovery under Section 27 of the Act. There was no need to take PW2 and thereafter make him to sign. There are a lot of contradictions in the evidence rendered. PW2 has stated that many persons were available at the time of the recovery, but no statement has been obtained from any of them. PW11, the Head Constable says ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... made under Section 27 of the Act. From the place of occurrence, recoveries were made by way of a wooden piece of the butt of a gun along with the cartridges. Of this, four cartridges were found in the pocket of the deceased. 4. Having found that the motive has not been proved and the recovery being doubtful despite the presence of scores of independent witnesses on both occasions, the Court in the first instance deemed it appropriate to extend the benefit of doubt in favour of the appellant. 5. The Division Bench of the Delhi High Court, despite concurring with the views expressed by the trial Court qua the last seen theory, nonetheless accepted the evidence of PW2 with respect to the motive coupled with the recoveries made. Though the trial Court eschewed the evidence of the Ballistic Expert, which remained inconclusive with respect to the bullet which caused the death, relatable to the gun belonging to the appellant, the High Court felt that it could be relied upon. Incidentally, it was held that the wooden piece of the butt did belong to the appellant. Therefore, the circumstances forming a chain were sufficient enough to point out guilt towards him and accordingly t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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. 9. This Court in the aforesaid judgment has noted the following decision while laying down the law: Precedents: Mohan alias Srinivas alias Seena alias Tailor Seena v. State of Karnataka, [2021 SCC OnLine SC 1233] as hereunder: 20. Section 378 CrPC enables the State to prefer an appeal against an order of acquittal. Section 384 CrPC speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the accused, presumption of innocence gathers strength before the Appellate Court. As a consequence, the onus on the prosecution becomes more burdensome as there is a double presumption of innocence. Certainly, the Court of first instance has its own advantages in delivering its verdict, which is to see the witnesses in person while they depose. The Appellate Court is expected to invo ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... n, which reads as under: [Babu v. State of Kerala, [(2010) 9 SCC 189]: 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 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 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]). It is further observed, after following the decision of this Court in Kuldeep Singh v. Commr. 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 acceptab ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... lined 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: 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 Doshi case [Ramesh Babulal Doshi v. State of Gujarat, (1996) 9 SCC 225] viz. first recording 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, which alone will justify interference in an order of acquittal though the High Court has rendered a wellconsidered judgment duly meeting all the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the app ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... e trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the wellestablished rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence have been recorded in its presence. 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 i ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 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 fur ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place. 24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judg ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... o post-mortem. In cross-examination he stated that the name of the suspect had come in the statement without any further address of the suspect and thus his house could not be visited at that point of time, though the witnesses mentioned some Gali number as well as the house number but since it was a Katcha colony it was difficult to locate the said address, unless the address was specifically ascertained with the help of witness or other sources. 14. In view of this cross-examination of Ashok Kumar and Vijay Sirotiya we cannot hold that the finding of the learned Trial Court on the point that the last seen evidence is not reliable is perverse. Though both views are possible, however the view taken by the learned Trial Judge is also a plausible view. 12.Thus, when the last seen theory is found to be not true, there has to be much more concrete and clinching evidence to implicate the appellant. PW1 is the father of the deceased who not only deposed that there was no animosity between the deceased and the appellant, but also that he did not know about the past transaction. 13. Having accepted the views of the trial Court holding that the last seen theory has not bee ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 1989 Supp (2) SCC 706: 10. Before adverting to the arguments advanced by the learned Counsel, we shall at the threshold point out that in the present case there is no direct evidence to connect the accused with the offence in question and the prosecution rests its case solely on circumstantial evidence. This Court in a series of decisions has consistently held that when a case rests upon circumstantial evidence such evidence must satisfy the following tests: (1) the circumstances from which an inference of guilt is sought to be drawn, must be cogently and firmly established; (2) those circumstances should be of a definite tendency unerringly pointing towards guilt of the accused; (3) the circumstances, taken cumulatively, should form a chain so complete that there is no escape from the conclusion that within all human probability the crime was committed by the accused and none else; and (4) 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 incon ..... X X X X Extracts X X X X X X X X Extracts X X X X
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