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TMI Blog2023 (7) TMI 1421X X X X Extracts X X X X X X X X Extracts X X X X ..... making statement and after obtaining the permission of the doctor, statement of injured was recorded to the effect that he was a resident of village Agwanpur and was a tailor by profession. On 08.09.2017 at about 9.00 p.m. he along with his wife Suman and mother Dayawati was sitting in the verandah of his house. In the meantime, a white car came in front of their house and three young boys alighted therefrom. They all were having weapons in their hands. They all fired shots upon him with an intention to kill him. One bullet hit him on the leg due to which he became unconscious. All the assailants fled from the spot along with their weapons. Thereafter he was taken to Government Hospital, Ganaur for treatment. 3. On this complaint, the prosecution machinery swung into motion. A case under Sections 307, 34 IPC and Section 25 of the Arms Act was registered. Accused Rahul was arrested and his disclosure statement was recorded. Accused Ankit and Shakti were arrested after issuance of production warrants. Their disclosure statements were also recorded. On completion of investigation, challan under Section 173 Cr.P.C. was filed in Court. 4. On finding a prima facie case against the accu ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... the possession of the accused has matched with the empty bullet(s) recovered from the place of occurrence. ANALYSIS and OBSERVATIONS 7. Before going into the veracity of the evidence of the case, in the light of the arguments of the learned State counsel, this Court would first like to examine the scope and ambit of power of this Court in re-appreciating the evidence in an appeal against an order of acquittal. It is accepted proposition of criminal jurisprudence that this Court has the power to unsettle the order of acquittal on the basis of re-appreciation of the evidence but the power is subject to the settled law that where two views are possible and out of the two, one points towards the innocence of the accused, the view which favour the accused should prevail over the other pointing towards the guilt of the accused. 8. The Hon'ble Supreme Court has articulated the above principle in the following decisions: a) A five Judge Bench of the Privy Council in Sheo Swarup and others v. King Emperor, 1934 AIR(Privy Council) 227, speaking through Lord Russell of Killowen, held as under: "7. ... But in exercising the power conferred by the Code and before reaching its conclusio ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... hich recorded the order of acquittal..." c) A three Judge Bench of Hon'ble Supreme Court in Kali Ram v. State of H.P., 1973 (2) SCC 808, speaking through Justice H.R. Khanna, held as under: "25. Another golden thread which runs through the web of the administration of justice in criminal cases is that if two views are possible on the evidence adduced in the case one pointing to the guilt of the accused and the other to his innocence, the view which is favourable to the accused should be adopted..." d) A two Judge Bench of Hon'ble Supreme Court in Arulvelu v. State represented by the Public Prosecutor, 2009 (4) R.C.R. (Criminal) 638 elaborated and discussed in detail the criterion of perversity for reversing the finding of acquittal by the appellate Court. Speaking through Justice Dalveer Bhandari, the Bench laid down the following: "22. In our considered opinion, the approach of the High Court in the impugned judgment is not in consonance with the settled principles of criminal jurisprudence. The High Court while reversing the judgment of the trial court observed that "in all probabilities, I am inclined to hold that there was demand of dowry and the deceased was harass ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... ni Rubber & Plastics v. Collector of Central Excise, Cochin, AIR 1994 Supreme Court 1341, the Court observed that this is not a case where it can be said that the findings of the authorities are based on no evidence or that they are so perverse that no reasonable person would have arrived at those findings. 29. In M.S. Narayanagouda v. Girijamma & Another, AIR 1977 Karnataka 58, the Court observed that any order made in conscious violation of pleading and law is a perverse order. 30. In Moffett v. Gough, 1 L.R. 1r. 371, the Court observed that a perverse verdict may probably be defined as one that is not only against the weight of evidence but is altogether against the evidence. 31. In Godfrey v. Godfrey, 106 NW 814, the Court defined 'perverse' as turned the wrong way, not right; distorted from the right; turned away or deviating from what is right, proper, correct etc. 32. The expression "perverse" has been defined by various dictionaries in the following manner : 1. Oxford Advanced Learner's Dictionary of Current English Sixth Edition PERVERSE : Showing deliberate determination to behave in a way that most people think is wrong, unacceptable or unre ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... meaning of 'perverse' has been examined in H.B. Gandhi, Excise and Taxation Officer-cum-Assessing Authority, Karnal & Others v. Gopi Nath & Sons & Others, 1992 Supp (2) SCC 312, this Court observed as under : "7. In the present case, the stage at and the points on which the challenge to the assessment in judicial review was raised and entertained was not appropriate. In our opinion, the High Court was in error in constituting itself into a court of appeal against the assessment. While it was open to the respondent to have raised and for the High Court to have considered whether the denial of relief under the proviso to Section 39(5) was proper or not, it was not open to the High Court re-appreciate the primary or perceptive facts which were otherwise within the domain of the factfinding authority under the statute. The question whether the transactions were or were not sales exigible to sales tax constituted an exercise in recording secondary or inferential facts based on primary facts found by the statutory authorities. But what was assailed in review was, in substance, the correctness - as distinguished from the legal permissibility - of the primary or perceptive facts ..... X X X X Extracts X X X X X X X X Extracts X X X X ..... court should not disturb the finding of acquittal recorded by the trial court." f) A two Judge Bench of Hon'ble Supreme Court in Mallikarjun Kodagali (Dead) represented through Legal Representatives v. State of Karnataka & Ors, 2019 (2) SCC 752, speaking through Justice Madan B. Lokur, held as under: "86. Dealing with the issue, as to whether a victim should seek leave to appeal, one must first understand the concept behind introducing the concept of leave to appeal, especially when the appeals are filed in the High Courts. The presumption of innocence which is attached to every accused gets fortified and strengthened when the said accused is acquitted by the trial Court. Probably, for this reason, the law makers felt that when the appeal is to be filed in the High Court it should not be filed as a matter of course or as matter of right but leave of the High Court must be obtained before the appeal is entertained. Therefore, the High Court would at the initial stage of deciding whether the leave is to be granted or not go into the merits of the case. Only if arguable points are involved, the High Court normally grants leave to appeal. This would not only prevent the High Cou ..... X X X X Extracts X X X X X X X X Extracts X X X X
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