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Presence of witness doubtful =According to the report (Exh.PAK) of the Deputy Director, Forensic Science Laboratory, Madhuban no linkage could be established between the bullets recovered from the dead body and the fire arms allegedly recovered at the instance of the accused both of which were sent for forensic examination. The learned Trial Court also noticed that PW-11 and PW-12 had identified the accused including the present appellant for the first time in Court. It was also held that the refusal of the accused to cooperate and take part in the test identification parade could not be held adversely against the accused on account of the fact that even earlier to the proposed test identification parade the accused were shown to PWs 11 and 12 and also to the son of the deceased. The mere claim of the prosecution that PW-11 Sohan Lal and PW-12 Bharat Lal were eye witnesses to the occurrence could not have been sufficient for the High Court to treat the ocular version of the said witnesses as the undisputed version of the occurrence. The High Court did not test the prosecution claim in the backdrop of the totality of the facts of the case. Having done so, we arrive at a different conclusion and, therefore, take the view that the High Court was not justified in reversing the acquittal of the accused-appellant Prem Singh. We, therefore, set aside the order of the High Court insofar as the present appellant is concerned and restore the order of acquittal passed by the learned Trial Court. The appeal is consequently allowed. If the appellant is presently in custody he be released

 published in     http://judis.nic.in/supremecourt/imgst.aspx?filename=40723 

REPORTABLE

IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO. 925 OF 2009

Prem Singh … Appellant(s)
Versus
State of Haryana … Respondent(s)

J U D G M E N T

RANJAN GOGOI, J.

1. The appellant, Prem Singh, alongwith six others was charged for
various offences punishable under the Indian Penal Code (IPC), 1860 and the
Arms Act, 1959, including, the offence under Section 302 read with Section
149 IPC. Two of the accused, namely, Satish Kumar and Surinder, were
acquitted even prior to the recording of their statements under Section 313
Code of Criminal Procedure (Cr.P.C). The remaining five accused, including
the present appellant, were acquitted by the learned Trial Court at the
conclusion of the trial by order dated 5.4.1997. Aggrieved, the State had
filed an appeal before the High Court of Punjab & Haryana. The High Court
by judgment and order dated 12.5.2008 reversed the acquittal insofar as the
present appellant Prem Singh and another accused, i.e., Vishwa Bandhu is
concerned. Both the aforesaid accused persons were convicted under Section
302 read with Section 34 IPC and have been sentenced to undergo rigorous
imprisonment for life. The appeal of the State in respect of the remaining
three accused, namely, Daulat Ram, Ballu and Radhey Shyam was dismissed.
Aggrieved by his conviction and the sentence imposed, the appellant, Prem
Singh, has filed the present appeal.

2. The case of the prosecution, in short, is that on 26.11.1993 at about
6.30/6.45 a.m. when PW-16 Sohan Lal was present in his house, one Vijay
Kumar, a neighbour, came and informed him that his elder brother Siri
Krishan who had gone for a morning walk has been shot at by some persons
who had come in a Maruti car. On receipt of the said information from Vijay
Kumar, who claimed to have witnessed the occurrence, PW-16 alongwith his
nephew Navneet Kumar went to the spot and found Siri Krishan lying in a
pool of blood. The injured was removed to the government hospital at Karnal
where he was declared “brought dead”. According to the prosecution, on the
basis of the information sent to the police by the doctor in the government
hospital, PW-24 SI Gurcharan Singh arrived in the hospital and recorded the
statement of PW-16 Sohan Lal to the above effect (Exh.PQ). On the basis of
the said statement a FIR was registered which was investigated initially by
PW-23 Inspector Om Prakash and thereafter by PW-24 SI Gurucharan Singh and
PW-27 Inspector Gordhan Singh. In the course of investigation the seven
accused persons including the appellant were arrested and recovery of fire
arms was allegedly effected at the instance of accused-appellant and co-
accused Ballu. From the place of occurrence several empty cartridges and
lead bullets were recovered. 3 bullets were also recovered from the dead
body in the course of the post-mortem examination. The same alongwith fire
arms allegedly recovered at the instance of the two accused were sent for
forensic examination. On completion of the investigation the accused
persons including the present appellant were chargesheeted and the case was
committed for trial to the Court of Sessions at Karnal. Charges under
Sections 120-B, 148, 302 read with Section 149 of the Indian Penal Code and
Section 25 of the Arms Act were framed against the accused. While the
trial ended in the acquittal of all the accused persons the same has been
reversed by the High Court in respect of the two accused persons, namely,
Prem Singh and Vishwa Bandhu. Challenging the order of the High Court
this appeal has been filed by accused-appellant Prem Singh.

3. The appeal was initially heard by a Bench of two Hon’ble Judges.
However, there being a difference of opinion between the Hon’ble Judges the
matter required consideration by a larger Bench. This is how the appeal
has come to be posted before us.

4. We have heard Mr. D.B. Goswami learned counsel for the appellant and
Mr. Suryanaryana Singh, learned Addl. Advocate General for the State of
Haryana.

5. Having regard to the fact that in the instant case the High Court had
thought it proper to reverse the order of acquittal passed by the learned
Trial Court it will be appropriate to notice, though very briefly, the
virtually settled position in law with regard to the power of the Appellate
Court to reverse an order of acquittal passed by a Trial Court. In a
recent decision in Murugesan v. State Through Inspector of Police[1] this
Court had the occasion to consider the broad principles of law governing
the power of the High Court under Section 378 of the Code of Criminal
Procedure, 1973. The summary of the relevant principles of law set out in
para 21 of the judgment may be extracted hereinunder:
“21. A concise statement of the law on the issue that had emerged
after over half a century of evolution since Sheo Swarup[2] is to be
found in para 42 of the Report in Chandrappa v. State of Karnataka[3].
The same may, therefore, be usefully noticed below:
“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 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 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.”(Emphasis
supplied)
6. It is in the light of the above principles of law that the reasoning
and conclusions of the High Court that will have to be analysed so as to
determine the correctness of the view taken by the High Court in the
present case. To facilitate the aforesaid exercise the manner in which the
learned Trial Court had arrived at its conclusions in the matter may be
usefully noticed in the first instance.

7. Vijay Kumar, who according to PW-16 Sohan Lal, came and informed him
about the incident was not examined by the prosecution. The above fact
assumes significance in as much as from the statement of PW-16 recorded in
the hospital (Exh.PQ) it would appear that Vijay Kumar had witnessed the
occurrence. The learned Trial Court took note of the above facts and also
that the statement of the aforesaid Vijay Kumar was recorded by the
Investigating Officer only on 28.3.1994 and that too on account of an
objection raised by the public prosecutor prior to the filing of the
chargesheet (Challan) before the Court. The public prosecutor had tried to
justify the non-examination of Vijay Kumar by contending that it was not
Vijay Kumar but his daughter who had witnessed the occurrence. Considering
the aforesaid contention the learned Trial Court held that even if the same
is to be accepted the daughter of Vijay Kumar should have been examined as
a witness. However, the evidence of Investigating Officers PW-23 Insp. Om
Prakash, PW-24 SI Gurcharan Singh and PW-27 Insp. Gordhan Singh make it
clear that none of the members of the family of Vijay Kumar were examined
and no statement of any family member was recorded.

8. The learned Trial Court came to the conclusion that there is ample
room to doubt whether PW-11 Sohan Lal and PW-12 Bharat Lal, who were
examined by the prosecution as eye witnesses, had actually witnessed the
occurrence. Both the aforesaid two witnesses had come to Karnal (in
Haryana) from Sunam in Punjab about two months prior to the incident and in
the month of March, 1994 they had shifted back to Sunam from where they had
come. In this regard the Trial Court specifically noticed that both the
witnesses were not able to give any specific address in Karnal; they had
not received any summons to appear as witnesses and had so appeared at the
request of the son of the deceased. Furthermore, PW-11 Sohan Lal claimed
to be an employee of the brother of PW-13 Smt. Pushpa Devi who is the wife
of the deceased. Both PW-11 and PW-12 claimed that they knew the deceased
from before and that the house of the deceased was very near to the place
of occurrence. Yet, PW-11 and PW-12 did not go to the house of the deceased
to inform the family members of the incident; neither did they report the
incident to the police. Instead, they were roaming around aimlessly in the
streets of Karnal until they came to the place of occurrence at 1.30 p.m.
when their statements were recorded by the police. The aforesaid facts,
according to the learned Trial Court, cast a serious doubt with regard to
the presence of PW-11 Sohan Lal and PW-12 Bharat Lal at the scene of the
occurrence.

9. Furthermore, the learned Trial Court on the basis of the evidence
adduced before it held the recovery of the weapons at the instance of the
accused-appellant and co-accused Ballu to be highly doubtful inasmuch as
though the weapons were not concealed under the earth, no recovery was made
from the spot on 21.09.1994; yet, on 22.1.1994 and 23.1.1994 the two fire
arms were recovered allegedly at the instance of the accused-appellant Prem
Singh and co-accused Ballu respectively. In this regard the Trial Court
also noticed that according to the report (Exh.PAK) of the Deputy Director,
Forensic Science Laboratory, Madhuban no linkage could be established
between the bullets recovered from the dead body and the fire arms
allegedly recovered at the instance of the accused both of which were sent
for forensic examination. The learned Trial Court also noticed that PW-11
and PW-12 had identified the accused including the present appellant for
the first time in Court. It was also held that the refusal of the accused
to cooperate and take part in the test identification parade could not be
held adversely against the accused on account of the fact that even earlier
to the proposed test identification parade the accused were shown to PWs 11
and 12 and also to the son of the deceased.

10. In addition to the above, the Trial Court also noticed significant
discrepancies in the evidence of PWs 11 and 12, particularly, with regard
to the identity of the accused who had held the deceased while the two
accused, i.e., accused-appellant Prem Singh and co-accused Vishwa Bandhu
allegedly fired at the deceased. In this regard PW-11 in his evidence had
named accused Bijender Singh alias Ballu as the person who held the
deceased from behind whereas PW-12 Bharat Lal had named accused Satish. The
fact that the evidence of PWs 11 and 12 on the above aspect of the case is
belied by the evidence of PW-3 (Dr. N.K.Bhandwal) and PW-25 (Dr.
R.K.Kaushal) had also been taken note by the learned Trial Court. Both PWs
3 and 25 had stated that all the shots could not have been fired on the
deceased if he had been held by a third person. The above is the broad
basis on which the order of acquittal passed by the learned Trial Court was
founded.

11. The parameters within which the High Court was required to exercise
its powers under Section 378 of the Code while hearing the State’s appeal
have already been noticed. If a conclusion with regard to the innocence of
the accused is reasonably possible on the basis of the evidence and
materials on record the High Court ought not to have disturbed the findings
recorded by the Trial Court, even if, on a re-appreciation of the evidence,
it was inclined to take a different view. So long the view taken by the
Trial Court was a possible view the exercise of the appellate power of the
High Court under Section 378 CrPC would remain circumscribed by the well
settled parameters.

12. In the present case, the learned Trial Court for the reasons noticed
came to the conclusion that the accused before it should be acquitted. An
inference adverse to the prosecution on account of non-examination of the
person who could be the star witness for the prosecution, namely, Vijay
Kumar; the inherent lacunae in the evidence of PWs 11 and 12; the doubt and
suspicion with regard to the bonafides of the recovery of the fire arms;
the failure of the prosecution to establish the linkage between the weapons
recovered and the bullets extracted from the body of the deceased are facts
and conclusions that can be reasonably reached on the basis of the evidence
and materials on record. If the aforesaid conclusions are possible to be
reached and we are inclined to so hold, the same cannot be characterized as
unreasonable or perverse so as to justify the interference made by the High
Court.

13. Furthermore, a reading of the order of the High Court indicates that
the reversal made was entirely on the basis of the evidence tendered by PWs
11 and 12. The High Court seems to have accepted the versions narrated by
the aforesaid two witnesses without considering the shortcomings inherent
therein which made their presence at the place of occurrence highly
doubtful, facts that had been elaborately noted by the learned Trial Court
in its order. The mere claim of the prosecution that PW-11 Sohan Lal and
PW-12 Bharat Lal were eye witnesses to the occurrence could not have been
sufficient for the High Court to treat the ocular version of the said
witnesses as the undisputed version of the occurrence. The High Court did
not test the prosecution claim in the backdrop of the totality of the facts
of the case. Having done so, we arrive at a different conclusion and,
therefore, take the view that the High Court was not justified in reversing
the acquittal of the accused-appellant Prem Singh. We, therefore, set
aside the order of the High Court insofar as the present appellant is
concerned and restore the order of acquittal passed by the learned Trial
Court. The appeal is consequently allowed. If the appellant is
presently in custody he be released

 

 

 

forthwith unless his custody is required in connection with any other
case.
………………………………………CJI.
[P. SATHASIVAM]

 

…………………………………………J.
[RANJANA PRAKASH DESAI]

 
…………………………………………J.
[RANJAN GOGOI]
NEW DELHI
SEPTEMBER 2, 2013

 

 

 

 

 

 

 

 

 

 

 

 

 
ITEM NO.1-B COURT No.14 Section IIB
(For Judgment)

 

S U P R E M E C O U R T O F I N D I
RECORD OF PROCEEDINGS

CRIMINAL APPEAL No.925 OF 2009
Prem Singh Appellant(s)

Versus

State of Haryana Respondent(s)
DATE 02/09/2013 This matter was called
on for pronouncement of judgment today.

For Appellant(s) Mr. D.B. Goswami, Adv.
Mr. K.H. Nobib Singh, Adv.

For Respondent(s) Mr. Suryanarayana Singh, Adv.
Ms. Pragati Neekhra, Adv.
Hon’ble Mr. Justice Ranjan Gogoi pronounced the judgment of the
Bench comprising Hon’ble the Chief Justice, Hon’ble Mrs. Justice Ranjana
Prakash Desai and His Lordship.

 
The appeal is allowed. If the appellant is presently in custody
he be released forthwith unless his custody is required in connection
with any other case.

 
(Usha Bhardwaj) (Usha Sharma)
(AR-cum-PS) (Court Master)

[Signed reportable judgment is placed on the file ]
———————–
[1] (2012) 10 SCC 383
[2] Sheo Swarup v. King Emperor, (1933-34) 61 IA 398 : AIR 1934 PC 227
(2)
[3] (2007) 4 SCC 415

———————–
14

 

 

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