TMI Blog2022 (4) TMI 1563X X X X Extracts X X X X X X X X Extracts X X X X ..... eversing 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... s 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. - SANJAY KISHAN KAUL AND M.M. SUNDRESH, JJ. For the Appellant : Mr. Basant R., Sr. Adv., Mr. Ramesh Babu M. R., AOR, Mr. Vishnu, Adv., Mr. Abdul Latheef M.P., Adv. For the Respondent : Mr. P.V. Surendranath, Sr. Adv., Mr. Nishe Rajen Shonker, AOR, Ms. Anu K Joy, Adv., Mr. Alim Anvar, Adv., Mr. Harshad V. Hameed, AOR JUDGMENT M.M. SUNDRESH, J. 1. Convictions confi ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-11, recoveries were made on 13.08.2002. 6. On completion of the investigation, a charge sheet was laid against 16 Accused. Charges were framed against A2, A-4, A-5, A-8, A-9 to A-16 for the offences punishable Under Sections 120-B, 143, 147, 148, 427, 460, 302 read with 149 Indian Penal Code and Sections 3 and 5 of the Explosives Substances Act. As A-1, A-3, A-6 and A-7 were absconding, the case against them got split up. 7. The prosecution examined 66 witnesses in total while marking Ext. P-1 to P-97. On behalf of the defence, particularly A-8 A-9, one witness was examined as DW-1, while Ext. D-1 to D-18 were marked. The material objects 1 to 54 were exhibited and identified before the Court. 8. The learned Additional District and Sessions Judge, Court I, Kollam, while acquitting A-10 to A-16, convicted the others for the following offences: A-2, A-4, A-5, A-8, A-9 - Under Section 302 r/w 149 Indian Penal Code and sentenced to life imprisonment. A-2, A-4, A-5, A-8, A-9 - Under Section 147 r/w 149 Indian Penal Code for 1 year S.I. and fine of Rs. 5000. A-2, A-4, A-5, A-8, A-9 - Under Section 148, 149 Indian Penal Code for 2 years S.I. and fine of Rs. 10 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... #39;s house. He had seen the occurrence from the theatre. He identified A-10, having seen him near the vicinity of the deceased's house. His statement Under Section 161 of the Code of Criminal Procedure (for short 'Cr.P.C.') was recorded nine days after the incident. Incidentally, the bloodstained clothes of A-10 were recovered from his house, he being not a party to the recovery mahazar. He also similarly identified A-11 and A-12. He attributes the specific overt act against A-13 of throwing a bomb. Though he states that he saw the occurrence along with C.W. 22, the said person was not examined. 15. P.W. 46 saw the incident while returning home. He heard the gunshot and attributes overt act as against A-10, A-12 and A-13. His statement was also recorded only on 20.07.2002. He wrongly identified A-10 as A-7 while unable to identify A-12. He has not expressed anything about A-11. 16. The doctor who has been examined as P.W. 15 has issued Ext. P-45 - the postmortem certificate which, on perusal, indicates about 30 ante-mortem injuries, of which the majority of them are incised. 17. A-8 and A-9 got injuries and took treatment in the hospital. The injuries were fou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... th sword on his right leg. Thereafter A7, A10, A12 entered into the hall room inflicted cut injuries on various parts of the person of Ashraf. Ext. A45 and the deposition of PW58 proved that corresponding injuries found on the dead body of Ashraf. Though PW1 could depose the names of A1 to A12 he could not identify A 1, A3, A6, A7 and A 10, A 11, he could identify A2, A4, A5, AS and A9. His evidence shows that A11 did not inflict any injury on Ashraf. PW2 also stated the name of the assailants came inside the house and caused injury on the person of Ashraf. Though PW2 stated the names of A2, A4, A5, AS, A9, A11 he could identify only AS and A9. No overt act stated by PW2 against A 11 and on analyzing the evidence of PW2 it is seen that A11 was armed with sword and it was catched by Ashraf and attacked the assailants. Thus PW2 has identified Accused 8 and 9 only. The evidence of PWs 1 and 2 and PW58 and Ex. P45 proved that the version of PWs 1 and 2 is credible probable to believe. The victim sustained 20 incised wounds, on the right side of vertex, right eye brow, left cheek and also on various parts of his body. The evidence of PW58 and Ext. P45 corroborate the testimony of PWs 1 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... A-4, A-5, A-8, and A-9. However, it overturned the order of acquittal of A-10, A-11, A-12, and A-13 granted by the Trial Court on the premise that the witnesses who spoke about these Accused's presence failed to consider the import of Section 149 Indian Penal Code. These minor discrepancies ought to have been ignored, and the prosecution case is supported by both recoveries and medical, forensic, and scientific evidence. SUBMISSIONS 22. Counsel appearing for A-2, A-4, A-5, A-8, and A-9 contended that the first information report registered as Ext. P-1 is an after-thought, created subsequently and thus ante-dated. There is no proper explanation for referring the jeep with the registration number, which is one of the material objects recovered under Ext.P-1, when P.W. 1 states that he came to know about it only the next day of the occurrence. Though Ext. P-1 was sent after its registration at about 11.00 p.m., it did reach the jurisdictional Magistrate only at about 4.15 p.m. the next day. This delay has not been examined properly. The witnesses are either interested or chance and, therefore, the courts ought to have rejected their testimonies. They are not only the me ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... DISCUSSION Scope of Appeal filed against the Acquittal: 25. 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. Precedents: Mohan @Srinivas @Seena @Tailor Seena v. State of Karnataka, as hereunder: 20. Section 378 Code of Criminal Procedure enables the State to prefer an appeal against an order of acquittal. Section 384 Code of Criminal Procedure speaks of the powers that can be exercised by the Appellate Court. When the trial court renders its decision by acquitting the Accused, presum ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Under Section 378 Code of Criminal Procedure. We do not wish to multiply the aforesaid principle except placing reliance on a recent decision of this Court in Anwar Ali v. State of Himachal Pradesh, (2020) 10 SCC 166: 14.2. When can the findings of fact recorded by a court be held to be perverse has been dealt with and considered in paragraph 20 of the aforesaid decision, which reads as under: (Babu case [Babu v. State of Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri.) 1179]) 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. [Rajinder Kumar Kindra v. Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L S) 131], Excise Taxation Officer-cum-Assessing Authority v. Gopi Nath Sons [Excise Taxation Officer-cum-Assessing Authority v. Gopi Nath Sons, 1992 Supp (2) SCC 312], Triveni Rubber Plastics v. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ly wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case. 31.1. In Sambasivan [Sambasivan v. State of Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri.) 1320], the High Court reversed the order of acquittal passed by the learned trial court and held the Accused guilty on reappreciation 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: 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 ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the Accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge. 31.3. In Atley [Atley v. State of U.P. AIR 1955 SC 807 : 1955 Cri.L.J. 1653], in para 5, this Court observed and held as under: 5. It has been argued by the learned Counsel for the Appellant that the judgment of the 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 co ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g for the Appellant that the view taken by the trial court is a possible view , having regard to the evidence on record. It is submitted that the trial court has recorded cogent and valid reasons in support of its findings for acquittal. Under Section 378 Code of Criminal Procedure, no differentiation is made between an appeal against acquittal and the appeal against conviction. By considering the long line of earlier cases this Court in the judgment in Chandrappa v. State of Karnataka, (2007) 4 SCC 415 : (2007) 2 SCC (Cri.) 325 has laid down the general principles regarding the powers of the appellate Court while dealing with an appeal against an order of acquittal. Para 42 of the judgment which is relevant reads as under: (SCC p. 432) 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 a ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... udgment it is held that if the possible view of the trial court is not agreeable for the High Court, even then such possible view recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) 9. Having heard the learned Counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons Accused of the crime of murder i.e. Under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... nvestigation. The object is to avoid a possible foul play. The Magistrate has a role to play Under Section 159 of Code of Criminal Procedure. 27. 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. Precedents: Shivlal v. Stat ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eyewitnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. It is, therefore, essential that the delay in lodging of the first information report should be satisfactorily explained. (emphasis supplied) xxx xxx xxx 14. As feared by the learned Counsel for the Appellants, the possibility of subsequent implication of the Appellants as a result of afterthought, maybe due to political bitterness, cannot be ruled out. This fact is further buttressed by the delayed placing of FIR before the Magistrate, non-satisfactory explanation given by the police officer regarding the blank sheets in Ext. P-30, counterfoil of the FIR and also by t ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... 501] holding that the first information report in a criminal case is an extremely vital and valuable piece of evidence for the purpose of corroborating the oral evidence adduced at the trial. The object of insisting upon prompt lodging of the report to the police in respect of commission of an offence is to obtain early information regarding the circumstances in which the crime was committed, the names of the actual culprits and the part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in lodging the first information report quite often results in embellishment which is a creature of an afterthought. On account of delay, the report not only gets bereft of the advantage of spontaneity, danger creeps in of the introduction of coloured version, exaggerated account or concocted story as a result of deliberation and consultation. There can be no dispute about these principles relied upon by Mr. Bachawat but the real question in the present case is about the explanation for the delay. It is not at all unnatural for the family members to await the arrival of the elders in the family when an offence of this nature is committed before taking a d ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... g and PW 24 Mohamed Shakir, in view of their unexplained silence and delayed statement to the police, do not appear to us to be wholly reliable witnesses. There is no corroboration of their evidence from any other independent source either. We find it rather unsafe to rely upon their evidence only to uphold the conviction and sentence of the Appellants. The High Court has failed to advert to the contentions raised by the Appellants and reappreciate the evidence thereby resulting in miscarriage of justice. In our opinion, the case against the Appellants has not been proved beyond reasonable doubt. Ganesh Bhavan Patel v. State of Maharashtra, [(1978) 4 SCC 371] as hereunder: 15. As noted by the trial Court, one unusual feature which projects its shadow on the evidence of PWs Welji, Pramila and Kuvarbai and casts a serious doubt about their being eyewitnesses of the occurrence, is the undue delay on the part of the investigating officer in recording their statements. Although these witnesses were or could be available for examination when the investigating officer visited the scene of occurrence or soon thereafter, their statements Under Section 161, Code of Criminal Procedure ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... to 26 meant for a specific purpose and thus be construed as a proviso. 31. 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. Precedents: Kusal Toppo v. State of Jharkhand, [(2019) 13 SCC 676] as hereunder: 25. The law Under Section 27 of the Evidence Act is well settled now, wherein this Court in Geejaganda Somaiah v. State of Karnataka, (2007) 9 SCC 315 : (2007) 3 SCC (Cri.) 135 has observed as under: (SCC p. 324, para 22) 22. As the Section is alleged to be frequently misused by the police, the courts are required to be vigilant about its application. ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... it was held as under: (SCC pp. 334-35, paras 133 134) 133. We have already referred to the language of Section 161 Code of Criminal Procedure which protects the Accused as well as suspects and witnesses who are examined during the course of investigation in a criminal case. It would also be useful to refer to Sections 162, 163 and 164 Code of Criminal Procedure which lay down procedural safeguards in respect of statements made by persons during the course of investigation. However, Section 27 of the Evidence Act incorporates the theory of confirmation by subsequent facts i.e. statements made in custody are admissible to the extent that they can be proved by the subsequent discovery of facts. It is quite possible that the content of the custodial statements could directly lead to the subsequent discovery of relevant facts rather than their discovery through independent means. Hence such statements could also be described as those which furnish a link in the chain of evidence needed for a successful prosecution..... H.P. Admn. v. Om Prakash, [(1972) 1 SCC 249] as hereunder: 8...We are not unaware that Section 27 of the Evidence Act which makes the information given ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ed in consequence of information received from a person Accused of any offence, in the custody of a police officer, so much of such information, whether it amounts to a confession or not, as relates distinctly to the fact thereby discovered, may be proved. Section 162 of the Code of Criminal Procedure forbids the use of any statement made by any person to a police officer in the course of an investigation for any purpose at any enquiry or trial in respect of the offence under investigation, save as mentioned in the proviso and in cases falling Under Sub-section (2), and it specifically provides that nothing in it shall be deemed to affect the provisions of Section 27 of the Evidence Act. The words of Section 162 are wide enough to include a confession made to a police officer in the course of an investigation. A statement or confession made in the course of an investigation may be recorded by a Magistrate Under Section 164 of the Code of Criminal Procedure subject to the safeguards imposed by the section. Thus, except as provided by Section 27 of the Evidence Act, a confession by an Accused to a police officer is absolutely protected Under Section 25 of the Evidence Act, and if it ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... he Accused to the police would be admissible Under Section 27 and laid stress on the words so much of such information ... as relates distinctly to the fact thereby discovered in that connection. It held that the extent of the information admissible must depend on the exact nature of the fact discovered to which such information is required to relate. It was further pointed out that the fact discovered embraces the place from which the object is produced and the knowledge of the Accused as to this, and the information given must relate distinctly to this fact..... On Merit: 32. We shall first take the case of the Accused who suffered conviction at the hands of the Trial Court and the High Court. On perusal, we find that the courts have dealt with all the contentions thoroughly. The Trial Court considered the issue qua the delay, and the reasoning rendered thereunder does not warrant interference. We do not find any material to hold that the delay is willful and deliberate to the extent of creating any suspicion. The occurrence happened at night and Ext. P1 reached on the next day evening. There is no clarity on the mode. Perhaps it reached late during the day as it wou ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... iminal appeals being Criminal Appeal Nos. 430-431 of 2015. We find considerable force in the submission made by Mr. R. Basant, learned Senior Counsel. The Trial Court has given cogent reasoning for acquitting these Accused. It found the witnesses struggling and going back and forth to identify these Accused persons. Incidentally, it found that two material objects in which A-8 and A-11 were involved either by travelling to the place of occurrence or by owning are not proved by duly connecting them. Very exhaustive reasons have been given for coming to the said conclusion. 37. The High Court found fault with the Trial Court by relying on Section 149 Indian Penal Code. To attract Section 149, the prosecution has to prove its foundational facts. The Trial Court has taken a possible view that the evidence rendered by the eyewitnesses does not satisfy the Court qua the presence of A-10 to A-13. As recorded by us, adequate reasons have been given for coming to this conclusion. In that context, the Trial Court held that P.W. 1 and P.W. 2 did not state that A-11 inflicted injuries. The Trial Court had the advantage of seeing the witnesses as they deposed. The appellate forum cannot chan ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... tains. The same logic would also apply to A-10 as well. 42. The blood-stained dress was stated to have been recovered from A-13 from the hospital. It is not known as to how the said dress reached the hospital, and there is no evidence forthcoming on that count, apart from correlating the said dress to that of the Accused. 43. From the above, we can find 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. This further raises the question on the credibility of the prosecution case. 44. Upon the discussion made as aforesaid, we are inclined to dismiss the appeals filed being Criminal Appeal No. 450-451 of 2015 and Cri ..... X X X X Extracts X X X X X X X X Extracts X X X X
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