Scope of appeal by High Court against acquittal by Trial Court:
Whether in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Court?
In the present case, the prosecution as well as the High Court considered the recovery of photographs; recovery of mobile phone belonging to PW7, recovery of the knife and rope at the instance of the accused and on alleged disclosure statements of the accused on 9.9.2010. The prosecution also relied upon the recovery of jeep in which the photographs of the accused were found. The prosecution also relied upon the disclosure statement of the accused Anwar Ali with respect to recovery of crates and for the aforesaid prosecution heavily relied upon the testimony ofPW5, PW6 and PW7. However, it is required to be noted that on appreciation of the entire evidence on record, the trial Court found material contradictions in the deposition of the witnesses of disclosure statements and the recovery of the knife and rope on 9.9.2010 and thereby did not believe the recovery of knife,rope, crates on the basis of the disclosure statements made by the accused and that too recovered on 9.9.2020.
However, the High Court without giving any cogent reasons has interfered with the findings of fact recorded by the learned trial Court solely by observing that those contradictions were minor contradictions and therefore the learned trial Court was not justified in acquitting the accused solely on the basis of such minor contradictions. However, on considering the entire evidence on record, we are in complete agreement with the view taken by the learned trial Court. The contradictions which came to be considered by the learned trial Court cannot be said to be minor contradictions.
In the present case, according to the prosecution and PW18 IO, on the basis of disclosure statements made by the accused on 8.9.2010, the knife and rope were recovered on9.9.2010. However, PW4 and PW5 have categorically stated in their deposition that the police brought the sniffer dogs on2.9.2010 and the sniffer dogs recovered rope, knife etc. on2.9.2010. So, according to even PW4 and PW5, the rope and knife were recovered on 2.9.2010 with the help of sniffer dogs.However, neither in the FIR there was a mention of recovery of knife and rope on 2.9.2010 with the help of sniffer dogs nor the IO in his examination in chief has stated so. It is required to be noted that the accused were arrested on 8.9.2010 and prior thereto on 2.9.2010 the investigating officer visited the spot from where the knife and rope was recovered on 2.9.2010. In cross examination, the IO admitted that he visited the spot from where the knife was recovered with sniffer dogs on 2.9.2010. He has also admitted in the cross examination that this fact has not been mentioned in the FIR or in the statement of any witness.Thus, the prosecution and the IO suppressed the material facts.Even in the cross examination, the IO has stated that the sniffer dog had done nothing on the spot. In the cross examination, he has also specifically stated that “it is incorrect to suggest that the sniffer dog had traced the strings Ex. P52, knife Ex. P59 and vest Ex. P54. However, PW4 and PW5 in their deposition have categorically stated that the knife and rope were recovered on2.9.2010. The aforesaid cannot be said to be minor contradictions. Therefore, the trial Court was justified in not believing the disclosure statements of the accused and the recovery of the knife, rope etc. on 9.9.2010 as alleged by the prosecution. From evidence, it emerges that the knife, rope and vest were recovered on 2.9.2010 i.e., much prior to 8.9.2010when the accused were arrested.7.Even the recovery of jeep from Chandigarh and recovery of photographs and the recovery of mobile phone belonging to PW7from the jeep also create serious doubts. According to the prosecution and the IO, he received a secret information that one jeep is lying in abandoned condition on the Chandigarh road and though the distance was around 300 kilo meters, he straight way went to Chandigarh and recovered the jeep in the presence of Bhunter people brought by him. The Investigating Officer did not follow the procedure as required to be followed under Section 166(3 & 4), Cr.P.C. Even he did not comply with the provisions of Section 100 (4) Cr.P.C. Non following of the aforesaid provisions alone may not be a ground to acquit the accused. However,considering the overall surrounding circumstances and in a case where recovery is seriously doubted, noncompliance of the aforesaid play an important role.
Even the recovery of the mobile phone from the jeep belonging to PW7 also creates doubt. Though, PW7 has stated that his mobile was stolen or cheated, he never filed any complaint earlier. Even the IO has not tried to have the call details of the mobile. He has not tried to verify from the call details the conversation to or from the mobile.Even the disclosure statement of the accused with respect to crates being sold to PW6 is concerned, it is required to be noted that in the present case the so called disclosure statement is found to be suspicious and doubtful. Cogent reasons have been given by the learned trial Court for the same.9.Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in the case of Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case.
Absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In paragraphs 25 and 26, it is observed and held as under:
“25. In State of U.P. v. Kishanpal (2008) 16 SCC 73, this Court examined the importance of motive in cases of circumstantial evidence and observed: (SCC pp. 8788, paras 3839)“38. … the motive is a thing which is primarily known to the accused themselves and it is not possible for the prosecution to explain what actually promoted or excited them to commit the particular crime.
The motive may be considered as a circumstance which is relevant for assessing the evidence but if the evidence is clear and unambiguous and the circumstances prove the guilt of the accused, the same is not weakened even if the motive is not a very strong one. It is also settled law that the motive loses all its importance in a case where direct evidence of eyewitnesses is available, because even if there may be a very strong motive fo rthe accused persons to commit a particular crime, they cannot be convicted if the evidence of eyewitnesses is not convincing. In the same way, even if there may not be an apparent motive but if the evidence of the eyewitnesses is clear and reliable, the absence or inadequacy of motive cannot stand in the way of conviction.
”26. This Court has also held that the absence of motive in a case depending on circumstantial evidence is a factor that weighs infavour of the accused. (Vide Pannayar v. State of T.N (2009) 9 SCC152).”(emphasis supplied)
Considering the aforesaid facts and circumstances of the case, the findings recorded by the learned trial Court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial Court did not consider any material evidence on record. Trial Court was justified in recording the acquittal by observing that prosecution has failed to complete the entire chain of events. Therefore, we are of the opinion that in the facts and circumstances of the case, the High Court is not justified in reversing the order of acquittal passed by the learned trial Court. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside.
Conviction set aside:
In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order dated 20.09.2016 passed by the High Court of Himachal Pradesh in Criminal Appeal No. 464 of 2012 is hereby quashed and set aside, and the judgment and order dated 15.06.2012 passed bythe learned Additional Sessions Judge, Fast Track Court, Kullu,Himachal Pradesh in Sessions Trial No. 05 of 2011 is hereby restored. The accused Appellants, namely, Anwar Ali son of Gama Ali and Sharif Mohammad son of Sampat Mohammad beset at liberty forthwith, if not required in any other case.
See Full judgement here:
Click to access 35639_2016_34_1502_24106_Judgement_25-Sep-2020.pdf