SHRI SATISH KUMAR & ANR. versus THE STATE OF HIMACHAL PRADESH & ANR. on 2 March 2020

SUPREME COURT REPORTS

[2020] 3 S.C.R.

ASHRI SATISH KUMAR & ANR.

v.

THE STATE OF HIMACHAL PRADESH & ANR.

(Criminal Appeal No. 19 of 2017)

BMARCH 02, 2020

[UDAY UMESH LALIT, INDU MALHOTRAAND HEMANT GUPTA, JJ.]

Penal Code, 1860: s.302 r/w s.34 – Prosecution case wasthat the informant was the daughter of the victim-deceased – As perCher statement, the deceased had left in the morning on the fatefulday to meet one ‘K’ and thereafter he had to join duty – When hedid not return home till 6 pm she called him but his phone wasswitched off – Next morning, she called the Forest Guard who toldher that the deceased had not come to duty – Thereafter she calledDaccused-S whose house was near her house and sought number of‘K’ – Police came to her house and she found that her father haddied due to gun shot by accused-S and accused-R and the bodywas lying in the forest – The dead body and murder weapon wereallegedly recovered on the disclosure statements made by the twoaccused stated to have been made in presence of PW-2 and PW-3 –ETrial court acquitted all the accused for the reason that prosecutionfailed to prove the guilt of the accused beyond reasonable doubt –On State’s appeal against acquittal, High Court reversed the orderof acquittal holding that the finding of trial court that dead bodywas recovered prior to the disclosure statement made by theFaccused-S and accused-R was not correct and that the dead bodywas recovered only on the basis of the disclosure statements – Appealagainst conviction – Held: The statements of the prosecutionwitnesses did not appear to be trustworthy – The entire prosecutioncase was based on the telephone call made by accused-S but nocall details were produced to verify their correctness – The otherGincriminating circumstance weighed with the High Court was therecovery of the single barrel gun with the cartridge from the houseof accused-L, the licence holder – The report of the forensic sciencelaboratory only showed that such gun was used in the commissionof crime, but prosecution failed to establish which of the accusedH

actually used the gun – The disclosure statement of accused-S wasthat he fired from the gun – But the recovery of the gun was on thebasis of disclosure statement of accused-R – There was no directevidence as to the use of licensed gun of accused-L, though thegun along with empty and live cartridges were recovered on thestatement of accused-R – In the absence of evidence as to which ofthe two accused fired upon the deceased, the accused cannot beconvicted only on the basis of recovery of gun used in thecommission of crime – Prosecution also failed to prove any motiveon the part of the accused – Thus, in the absence of any evidenceled by the prosecution as to who fired the fatal shot, the benefit ofdoubt to the accused persons was rightly granted by the trial court– High Court interfered with the findings of acquittal even thoughthe conclusion drawn by the trial court was a possible conclusionon the basis of evidence on record – As regards conviction underss.25 and 27 of Arms Act, none of the conditions mentioned in thosesections were attracted – Conviction of the appellants for the offencespunishable under s.302 r/w s.34 and ss.25 and 27 of the Arms Actis set aside – Arms Act, 1959 – ss.25 and 27.

Code of Criminal Procedure, 1973: s.389 – Jurisdiction ofAppellate Court to interfere with order of trial court – Scope of –Held: While exercising the jurisdiction under s.389 of the Code,especially when trial court has recorded a finding of not provingthe guilt, the Appellate Court should interfere only if the findingsare perverse and are not possible by any reasonable person – HighCourt in an appeal against acquittal does not interfere only if theAppellate Court has a different view on process of evidence thanwhat was taken by the trial court – Penal Code, 1860 – s.302 r/ws.34.

Evidence: Circumstantial evidence – Motive, absence of –Effect on prosecution case – Held: In a case based uponcircumstantial evidence, motive is relevant – In the instant case,prosecution failed to prove any motive on the part of the accused –As per the statement of PW-1, the motive was land dispute withaccused-S – If such was a motive, then there was no reason for herto contact accused-S who was said to be staying near her house, tofind out whereabouts of her father (victim-deceased) – The saidmotive had no foundation to stand – Criminal law – Motive – PenalCode, 1860 – s.302 r/w s.34.

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1146SUPREME COURT REPORTS

AAllowing the appeals, the Court

HELD: 1. The first statement of PW-1 was that she cameto know from the police, when they arrived at the village, thataccused-S and accused-R have killed her father. She as PW1deposed that the statement of the accused was recorded beforeBthey proceeded to the forest, and that except ward member (PW-2) nobody had told her that her father had been murdered byaccused-S and accused-R. It was after her statement that shewent to the forest with the police, along with PW-2 and PW-3, andaccused-R and accused-S. She further deposed that PW-2 hadinformed her before the arrival of the police that the dead bodyCof her father was lying in the forest. PW-2 is ward member fromBalh Churani of Gram Panchayat Robin. Some officials proceededto the spot, whereas some came along with dead body of herfather. On the other hand, PW-2 was declared hostile. In his cross-examination, he denied that any disclosure statement was made Dby the accused-S and accused-R. He also denied that accused-Rhad signed any statement in his presence. He denied otherrecovery memos as well. In the cross-examination by the accused,he admitted that Balh Churani forest starts near the house ofdeceased and many registered hunters used to come to this forestfor hunting prior to the occurrence. Some hunters withoutEpermission, would also come to the forest. The dead body wasrecovered from a distance of approximately 1 KM from his house.The motorable road is at a distance of 1½ KM from the deadbody. He deposed that the statement of PW-1 and accused-S wasrecorded near the dead body after identification of the dead body.FHe deposed that accused-S stated to the police that he fired agunshot by mistake but he had not stated that the gunshot wasfired by him and by accused-R. He stated that accused-R hadstated to the police that their gun was not used for firing but wasstill taken into possession by the police. He admitted that therewere criminal cases between the father of accused-S and himself,Gbut those cases were compromised. [Paras 15, 16][1155-E-H;1156-A-D]

2. PW-3 also turned hostile and denied that any statementwas made by accused-S and accused-R in his presence. In cross-examination, he deposed that 15-20 persons of Balh ChuraniH

Village had gone to the forest. He admitted that the dead bodywas searched by the police and was not demarcated by anybodyelse. PW-15 (Inspector) in his cross-examination deposed thataccused-S and accused-R were arrested on 22nd December, 2009at 1.30 pm. He categorically deposed that he had not informedPW-2 before proceeding from the police station. He did notenquire with anybody over the telephone from the police stationpursuant to Daily Diary Report. He deposed that he came to knowthat deceased had died due to gunshot injury before recordingthe statement of PW-1. [Paras 17, 18][1156-E-G]

3. The phone call was received by police at 7.15 am. Thedistance of the place of recovery of dead body in forest from thehouse of the deceased is only about 2 Kms approx. In the firststatement of PW-1 recorded at 12.45 pm, there is an assertionthat her father was killed by gun shot by accused-S andaccused-R. How could she disclose the names of the assailants,if the police had yet to start investigation? The statement ofaccused-S was recorded prior to the statement of accused-R whichwas recorded between 1.30 to 2.00 pm as per PW-15. But as perPW-2 the police called him and got the first confirmation aboutthe incident from him, whereas the IO completely denied havingmade any attempt to contact PW-2 to get any information. As perthe IO, he proceeded to Balh Churani forest after associatingaccused-S, PW2, PW3 and PW-1. The conclusion of the cause ofdeath as due to gunshot by accused-S and accused-R could findmention in the FIR, which is the basis of initiating the investigatingprocess, only if the dead body had already been recovered. TheIO has given contradictory statement as that of statement ofPW-1 as well as PW-2. The statements of the witnesses did notappear to be trustworthy so as to maintain conviction of theappellants. The evidence of the prosecution did not inspireconfidence. [Para 19][1157-A-D]

4. The entire prosecution case was based upon thetelephone call made by accused-S but no call details have beenproduced to verify the correctness of the telephone call. As perthe IO, there was no verification made in pursuance of the phonecall received. The other incriminating circumstance weighed with AB

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Athe High Court was the recovery of the single barrel gun withthe cartridge from the house of accused-L, the licence holder.The report of the forensic science laboratory would only showthat such gun was used in the commission of crime, but theprosecution has failed to establish which of the accused hasactually used the gun. The disclosure statement of accused-S isBthat he fired from the gun. But the recovery of the gun is on thebasis of disclosure statement of accused-R. There is no directevidence as to the use of licensed gun of accused-L, though thegun along with empty and live cartridges were recovered on thestatement of accused-R. It is not possible to conclusively holdCthat it was either accused-R or accused-S who fired upon thedeceased. In the absence of the evidence as to which of the twoaccused fired upon the deceased, the accused cannot be convictedonly on the basis of recovery of gun used in the commission ofcrime. [Paras 20, 21][1157-E-H; 1158-A]

D5. The High Court has convicted all the accused additionallyfor the offences under Sections 25 and 27 of the Act. None of theconditions mentioned in Section 25 of the Act were even broadlyextended towards the accused including accused-L, the licensee.Section 27 of the Act provides for punishment if whoever usesany arms or ammunition in contravention of Section 5 of the saidEAct. Again, none of the conditions mentioned in Section 5 areattracted towards any of the accused including accused-L. [Para22][1158-B-C]

6. In a case based upon circumstantial evidence, motive isrelevant but the prosecution has failed to prove any motive onFthe part of the accused. As per the statement of PW-1, the motivewas land dispute with accused-S. If such was a motive, then therewas no reason for her to contact accused-S who was said to bestaying near her house, to find out whereabouts of her father.The said motive has no foundation to stand. [Para 23][1158-D]G

7. The trial court has recorded an order of acquittal. Suchorder of acquittal could be interfered with only if there wasperversity in the findings recorded by the trial court. Mere factthat the High Court has a different opinion will not be sufficientto enable the High Court to set aside the order of acquittal. While H

exercising the jurisdiction under Section 389 of the Code ofCriminal Procedure, 1973, especially when trial court hasrecorded a finding of not proving the guilt, the Appellate Courtshould interfere only if the findings are perverse and are notpossible by any reasonable person. The High Court in an appealagainst acquittal does not interfere only if the Appellate Courthas a different view on process of evidence than what was takenby the trial court. [Para 24][1158-E-G]

8. The High Court interfered with the findings of acquittaleven though the conclusion drawn by the trial court is a possibleconclusion on the basis of evidence on record. The prosecutionhas failed to prove the role of accused in causing death of thedeceased inasmuch as the recovery of dead body in pursuance ofsimilar disclosure statements made by accused-S and accused-Ris not proved. In the absence of any evidence led by theprosecution as to who fired the fatal shot, the benefit of doubtmust go to the accused persons and was rightly granted by thetrial court. The order of the High Court convicting the appellantsis wholly illegal, unwarranted and unjust. The conviction of theappellants for the offences punishable under Section 302 readwith Section 34 IPC and Sections 25 and 27 of the Act is setaside. [Paras 25, 26][1159-G-H; 1160-A-B]

Sharad Birdhichnd Sarda v. State of Maharashtra(1984) 4 SCC 116 : [1985] 1 SCR 88 ; Brajendra singhv. State of M.P. (2012) 4 SCC 289 : [2012] 3 SCR 599Chandrappa and Others v. State of Karnataka (2007)4 SCC 415 : [2007] 2 SCR 630 – referred to.

Case Law Reference

From the Judgment and Order of Conviction dated 20.09.2016and Order of Sentence dated 22.09.2016 of the High Court of HimachalPradesh, Shimla in Criminal Appeal No. 126 of 2013.

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Criminal Appeal No. 1109 of 2016

Ms. Ruchi Kohli, Ms. Babita Yadav, Amit Sharma, Ms. SrishtiMishra, R. C. Kohli, Advs. for the Appellants.

BMs. Upasana Nath, Abhinav Mukerji, Ms. Radhika Gautam, Advs.for the Respondents.

The Judgment of the Court was delivered by HEMANT GUPTA, J.

1. Criminal Appeal No. 19 of 2017 is preferred by Satish KumarCand Rajeev Kumar whereas Criminal Appeal No 1109 of 2016 is preferredby Lekh Ram, against common judgment of the High Court of HimachalPradesh dated 20th September, 2016 whereby the appeal filed by thecomplainant was allowed and the order of acquittal passed by the learnedtrial court on 30th November, 2012 was set aside. The appellants wereDconvicted for the offences punishable under Section 302 read withSection 34 of the Indian Penal Code, 1860[1] as well as under Sections 25and 27 of the Arms Act, 1959[2].

2. Brief facts leading rise to the present appeals are that on22[nd] December, 2009 at about 07:15 hours, an information (Ex PW 15-EA) was received by Ram Singh (PW-15), Inspector, on phone said to beby Satish Kumar son of Kanshi Ram, that Ratti Ram son of late ShriRoshan Lal, had died due to gun shot. On receiving such information,a Police team led by the Station House Officer of Police StationGhumarwin proceeded towards the place of occurrence. Subsequently,on the statement of Neelam Sharma (PW-1), daughter of deceased RattiFRam, FIR No. 218 was registered on 22[nd] December, 2009 at about14:05 hours.

3. Neelam Sharma had stated that her father left home at about 8am on 21[st] December, 2009 informing her that he would go to the houseof Karma at Village Chujala and thereafter he would go to attend hisGduty at Village Harlog. But when he did not return till 6 pm, she called onhis mobile number but mobile was switched off. She called in the morningto the Forest Guard to inquire about her father who told her that herfather had not come there to join the duty. Thereafter, she made telephone 1 for short, ‘IPC’

H2 for short, ‘Act’

call to accused Satish Kumar, whose house is in front of her house andsought phone number of Karma, resident of Village Chujala. The Policecame to her house on 22nd December, 2009, when she came to knowthat her father had died due to gun shot by Satish Kumar and RajeevKumar and the body of his father is lying at Balh Churani forest. Themotive of murder was said to be land dispute with Satish Kumar pendingin Shimla High Court.

4. Ram Singh (PW-15), Inspector, deposed that the disclosurestatements of accused Satish Kumar and Rajeev Kumar were recordedon 22[nd] December, 2009 itself. The statements of both the accused SatishKumar (Ext. PW2/A) and Rajeev Kumar (Ext. PW15/C) were recordedin the presence of Jaswant Singh (PW-2) and Kuldeep Singh (PW-3).They disclosed that the dead body of deceased Ratti Ram had beenconcealed in Balh Churani forest and that they could get the samerecovered. Both the accused accompanied the Police team to BalhChurani forest and on their demarcation of the spot, the dead body ofdeceased Ratti Ram was recovered on 22nd December, 2009 in thepresence of witnesses Jaswant Singh and Kuldeep Singh. The memo oftaking possession of dead body is Ex.PW15/F. A bag was also recoveredlying nearby the dead body which was identified by Neelam Sharma(PW-1) belonging to her father. The dry soil was also taken from thespot by the Police and spot map of the recovery of dead body was alsoprepared. Two pellet marks were visible on the stems of bushes. Theembedded pellets were removed with a stone.

5. Subsequently, on the same day, another statement of accusedRajeev Kumar was recorded in respect of disclosure of single barrelgun concealed in his house. The recovery memo is PW15/G. AccusedRajeev Kumar also stated that he had concealed empty cartridge in hishouse, which was also taken in possession from hishouse on 27thDecember, 2009. Accused Lekh Ram is the father of accused RajeevKumar. It is alleged that the gun was licensed in his name and two livecartridges were recovered from his house.

6. The Investigating Officer (IO) had also taken possession ofblood-stained soil, leaves and grass particles lifted from the spot; and theclothes worn by the deceased Ratti Ram. All these articles along withthe gun, the empty cartridge and the live cartridges were sent for forensicscience examinations. The report (Ex.PW14/D) dated 22[nd] March, 2010in respect of articles such as clothes and blood on the clothes and the A

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Asoil was furnished whereas in respect of the gun, the cartridge wasfound to be fired from the gun recovered on the basis of disclosurestatement of Rajeev Kumar. It was also reported that traces of gunshotresidue on the holes was present on the clothes worn by the deceasedand the range of firing was distant.B7. The postmortem was conducted on 23rd December, 2009 byDr. N.K. Sankhan (PW-7) who had found multiple injuries on the deadbody of deceased Ratti Ram and also found multiple perforated wounds.As per his final opinion, deceased Ratti Ram died due to cardio respiratoryfailure as a result of injuries to lungs and heart and hypovolemic shockas a result of gunshot injury.C

8. On the basis of the evidence produced, the learned trial courtacquitted all the accused for the reason that the prosecution has failed toprove the guilt of the accused beyond reasonable doubt. The learnedtrial court held that the IO was in the knowledge about the dead body,therefore, the question of recording of the disclosure statements ofDaccused persons has got no evidentiary value. The learned trial courtfound that the confession of guilt of the accused persons is difficult tobe drawn, rather exculpatory conclusions are deducible. Thecircumstances are not of a conclusive nature and do not excludeevery possible hypothesis consistent with the innocence of the accused.EThe learned trial court returned the following finding:

“29. Thus, in view of the evidence as discoursed aforesaid, it isemerging that investigating officer was in the knowledge aboutthe dead body and in view of this, the question of recording ofdisclosure statements of accused persons gathers no evidentiaryFvalue. If the police already had knowledge of the place of recoverythen the evidence collected in pursuance to disclosure statementsbecomes inadmissible and takes the case out of purview of Section27 of the Indian Evidence Act.”

9. The High Court found that the finding of the learned trial courtGthat the dead body was recovered prior to the disclosure statement madeby the accused Satish Kumar and Rajeev Kumar is not correct. In fact,the dead body was recovered only on the basis of the disclosurestatements. The High Court further found that the recovery of the deadbody and the weapon of offence in pursuance of the disclosure statementstands corroborated with the report of the forensic science laboratory.H

Thus, the chain of the circumstances is complete so as to warrantconviction of all the accused.

10. However, in appeal preferred by the complainant, the judgmentof the trial court was set aside. The High Court held that the postmortemreport and the report of the Forensic Science Laboratory emphaticallylead to the use of gun (Ext.P/27) by the accused. Therefore, there isincriminatory evidence against the accused. The High Court held thatthe dead body was not known to the prosecution, before the recoverywas made in pursuance of disclosure statement, therefore, the finding ofthe trial court is not correct. The High Court also found that even if it isassumed that the gun shot fired by only one of the accused, it would notexculpate the incriminatory role of other co-accused in the relevantoccurrence.

11. The learned counsel for the appellant argued that as the entirecase of the prosecution is based on circumstantial evidence, theprosecution has to prove the hypothesis that the accused alone havecommitted the crime. The prosecution witnesses have given contradictorystatements which does not complete the chain of circumstances and infact, the truthfulness of the case of the prosecution is seriously doubted.This Court in Sharad Birdhichand Sarda v. State of Maharashtra[3],delineated the conditions, which must be fulfilled before a case againstan accused can be said to be established on the basis of circumstances.It was held as under:

“153. A close analysis of this decision would show that the followingconditions must be fulfilled before a case against an accused canbe said to be fully established:

(1) the circumstances from which the conclusion of guilt isto be drawn should be fully established.

It may be noted here that this Court indicated that thecircumstances concerned “must or should” and not “may be”established. There is not only a grammatical but a legal distinctionbetween “may be proved” and “must be or should be proved” aswas held by this Court in Shivaji Sahabrao Bobade v. State ofMaharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973Crl LJ 1783] where the observations were made: [SCC para 19,p. 807: SCC (Cri) p. 1047]

3 (1984) 4 SCC 116

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A“Certainly, it is a primary principle that the accused must beand not merely may be guilty before a court can convict andthe mental distance between ‘may be’ and ‘must be’ is longand divides vague conjectures from sure conclusions.”

(2) the facts so established should be consistent only withBthe hypothesis of the guilt of the accused, that is to say, theyshould not be explainable on any other hypothesis except that theaccused is guilty,

(3) the circumstances should be of a conclusive nature andtendency, C

(4) they should exclude every possible hypothesis exceptthe one to be proved, and

(5) there must be a chain of evidence so complete as not toleave any reasonable ground for the conclusion consistent withthe innocence of the accused and must show that in all humanDprobability the act must have been done by the accused.

154. These five golden principles, if we may say so, constitute thepanchsheel of the proof of a case based on circumstantialevidence.”

12. In Brajendrasingh v. State of M.P.[4], this Court held that theEcircumstances from which the conclusion of guilt is to be drawn shouldbe fully established and should also be consistent with only one hypothesisi.e. the guilt of the accused. The circumstances should be conclusiveand proved by the prosecution. There must be a chain of events socomplete so as not to leave any substantial doubt in the mind of theFCourt. The Court held as under:

“27. There is no doubt that it is not a case of direct evidence butthe conviction of the accused is founded on circumstantial evidence.It is a settled principle of law that the prosecution has to satisfycertain conditions before a conviction based on circumstantialGevidence can be sustained. The circumstances from which theconclusion of guilt is to be drawn should be fully established andshould also be consistent with only one hypothesis i.e. the guilt ofthe accused. The circumstances should be conclusive and provedby the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court.Irresistibly, the evidence should lead to the conclusion inconsistentwith the innocence of the accused and the only possibility that theaccused has committed the crime. To put it simply, thecircumstances forming the chain of events should be proved andthey should cumulatively point towards the guilt of the accusedalone. In such circumstances, the inference of guilt can be justifiedonly when all the incriminating facts and circumstances are foundto be incompatible with the innocence of the accused or the guiltof any other person.”

13. The primary question in the present appeals is as to whether,the prosecution has recovered the dead body prior to recording ofconfessional statements of the accused vide Ex. PW2/A and Ex.PW15/C of Satish Kumar and Rajeev Kumar.

14. It is contended that the information with respect to death ofRatti Ram was received by Inspector Ram Singh (PW-15) on the phoneby one of the appellants Satish Kumar at 07.15 hours. PW-15 proceededto Balh Churani forest along with other police officials after receipt ofsuch information. Ex. PW1/A is the statement of Neelam Sharmarecorded at 12.45 pm by PW-15 at Village Balh Churani. The FIR isregistered at 14.05 hours.

15. The first statement of Neelam Sharma (Ex. PW 1/A) is thatshe came to know from the police, when they arrived at the village, thatSatish Kumar and Rajeev Kumar have killed her father. She as PW1deposed that the statement of the accused was recorded before theyproceeded to the forest, and that except ward member (Jaswant Singh)nobody had told her that her father had been murdered by Satish Kumarand Rajeev Kumar. It is after her statement was recorded that she wentto the forest with the police, and the witness Jaswant Singh and KuldeepSingh, and accused Rajeev Kumar and Satish Kumar. She further deposedthat PW-2 Jaswant Singh had informed her before the arrival of thepolice that the dead body of her father was lying in the forest. JaswantSingh is ward member from Balh Churani of Gram Panchayat Robin.Some officials proceeded to the spot, whereas some came along withdead body of her father. She denied that Balh Churani forest is a bigforest.

16. On the other hand, PW-2-Jaswant Singh was declared hostilewhen he deposed that no disclosure statement was made by Rajeev A

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AKumar in his presence. He was cross-examined by the public prosecutor.He denied that any disclosure statement was made by the accused SatishKumar and Rajeev Kumar. He also denied that Rajeev Kumar had signedany statement in his presence. He denied other recovery memos aswell. In the cross-examination by the accused, he admitted that BalhChurani forest starts near the house of deceased Ratti Ram and manyBregistered hunters used to come to this forest for hunting prior to theoccurrence. Some hunters without permission, would also come to theforest. The dead body of Ratti Ram was recovered from a distance ofapproximately 1 KM from his house. The motorable road is at a distanceof 1 ½ KM from the dead body. He deposed that the statement of NeelamCSharma and accused Satish Kumar was recorded near the dead bodyafter identification of the dead body. He deposed that Satish Kumarstated to the police that he fired a gunshot by mistake but he had notstated that the gunshot was fired by him and by Rajeev Kumar. Hestated that Rajeev Kumar had stated to the police that their gun was not used for firing but was still taken into possession by the police. He admittedDthat there were criminal cases between Kanshi Ram, father of SatishKumar and himself, but those cases were compromised.

17. PW-3 Kuldeep Singh turned hostile and denied that anystatement was made by accused Satish Kumar and Rajeev Kumar inhis presence. In cross-examination he deposed that 15-20 persons ofEBalh Churani Village had gone to the forest. He admits that the deadbody was searched by the police and was not demarcated by anybodyelse.

18. PW-15 Ram Singh in his cross-examination deposed that theaccused Satish Kumar and Rajeev Kumar were arrested on 22ndFDecember, 2009 at 1.30 pm. He categorically deposed that he had notinformed Jaswant Singh (PW-2) before proceeding from the policestation. He did not enquire with anybody over the telephone from thepolice station pursuant to Daily Diary Report. He deposed that he cameto know that deceased had died due to gunshot injury before recordingGthe statement of Neelam Sharma. The accused Satish Kumar and RajeevKumar were questioned in the presence of Jaswant Singh and KuldeepSingh. He denied that no telephone call was made by Satish Kumar topolice station. He admitted that the place where the dead body waslying was about 1 KM from the house of Ratti Ram and both the accusedcollectively identified the place where the dead body was lying.H

19. The phone call was received by police at 7.15 am. The distanceof the place of recovery of dead body in forest from the house of thedeceased is only about 2 Kilometers approx. In the first statement ofNeelam Sharma recorded at 12.45 pm, there is an assertion that herfather was killed by gun shot by Satish Kumar and Rajeev Kumar. Howcould she disclose the names of the assailants, if the police had yet tostart investigation? The statement of the accused Satish Kumar wasrecorded prior to the statement of Rajeev Kumar which was recordedbetween 1.30 to 2.00 pm as per PW-15. But as per PW-2 JaswantSingh, the police called him and got the first confirmation about the incidentfrom him, whereas the IO completely denied having made any attemptto contact PW-2 to get any information. As per the IO, he proceeded toBalh Churani forest after associating Satish Kumar, Jaswant Singh,Kuldeep Singh and Neelam Sharma. The conclusion of the cause ofdeath as due to gunshot by Satish Kumar and Rajeev Kumar could findmention in the FIR, which is the basis of initiating the investigating process,only if the dead body had already been recovered. The IO has givencontradictory statement as that of statement of PW-1 Neelam Sharmaas well as PW-2 Jaswant Singh. The statements of the witnesses do notappear to be trustworthy so as to maintain conviction of the appellants.The evidence of the prosecution does not inspire confidence.

20. The entire prosecution case is based upon the telephone callmade by Satish Kumar but no call details have been produced to verifythe correctness of the telephone call. As per the IO, there was noverification made in pursuance of the phone call received.

21. The other incriminating circumstance weighed with the HighCourt is the recovery of the single barrel gun with the cartridge from thehouse of Lekh Ram, the licence holder. The report of the forensic sciencelaboratory would only show that such gun was used in the commissionof crime, but the prosecution has failed to establish which of the accusedhas actually used the gun. The disclosure statement of the accused SatishKumar is that he fired from the gun. But the recovery of the gun is onthe basis of disclosure statement of accused Rajeev Kumar. There is nodirect evidence as to the use of licensed gun of Lekh Ram, though thegun along with empty and live cartridges were recovered on the statementof Rajeev Kumar. It is not possible to conclusively hold that it was eitherRajeev Kumar or Satish Kumar who fired upon the deceased. In theabsence of the evidence as to which of the two accused fired upon the AB

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Adeceased, the accused cannot be convicted only on the basis of recoveryof gun used in the commission of crime.

22. The High Court has convicted all the accused additionally forthe offences under Sections 25 and 27 of the Act. None of the conditionsmentioned in Section 25 of the Act are even broadly extended towardsBall the accused including Lekh Ram, the licensee. Section 27 of the Actprovides for punishment if whoever uses any arms or ammunition incontravention of Section 5 of the said Act. Again, none of the conditionsmentioned in Section 5 are attracted towards any of the accused includingLekh Ram. At best, there could be an allegation of violation of conditionsof licence but, none of the accused have been charged for violationCunder Section 30 of the Act. Therefore, none of the accused is liable forconviction for any offence under the Act.

23. In a case based upon circumstantial evidence motive is relevantbut the prosecution has failed to prove any motive on the part of theaccused. As per the statement of Neelam Sharma (PW-1), the motiveDwas land dispute with Satish Kumar. If such was a motive, then there isno reason for her to contact Satish Kumar, who was said to be stayingnear her house, to find out whereabouts of her father. The said motivehas no foundation to stand.

24. The trial court has recorded an order of acquittal. Such orderEof acquittal could be interfered with only if there was perversity in thefindings recorded by the trial court. Mere fact that the High Court has adifferent opinion will not be sufficient to enable the High Court to setaside the order of acquittal. The High Court in appeal took a differentview than what was taken by the trial court to set aside the judgmentFand convict the appellants herein. While exercising the jurisdiction underSection 389 of the Code of Criminal Procedure, 1973[5], especially whentrial court has recorded a finding of not proving the guilt, the AppellateCourt should interfere only if the findings are perverse and are not possibleby any reasonable person. The High Court in an appeal against acquittaldoes not interfere only if the Appellate Court has a different view onGprocess of evidence than what was taken by the learned trial court. ThisCourt in Chandrappa and Others v. State of Karnataka[6]consideredthe scope of powers of the appellate court against an order of acquittalpassed by the trial court under the Code and held as under:- 5 For short “the Code”H6 (2007) 4 SCC 415

“42. From the above decisions, in our considered view, the followinggeneral principles regarding powers of appellate Court while dealingwith an appeal against an order of acquittal emerge:

(1) An appellate Court has full power to review, reap-preciateand reconsider the evidence upon which the order of acquittal isfounded;

(2) The Code of Criminal Procedure, 1973 puts no limitation,restriction or condition on exercise of such power and anappellate Court on the evidence before it may reach its ownconclusion, both on questions of fact and of law;

(3) Various expressions, such as, “substantial and com-pellingreasons”, “good and sufficient grounds” “very strongcircumstances”, “distorted conclusions”, “glar-ing mistakes”, etc.are not intended to curtail exten-sive powers of an appellate Courtin an appeal against acquittal. Such phraseologies are more in thenature of “flourishes of language” to emphasise the reluctance ofan appellate Court to interfere with acquittal than to curtail thepower of the Court to review the evidence and to come to its ownconclusion.

(4) An appellate Court, however, must bear in mind that in case ofacquittal, there is double presumption in favour of the accused.Firstly, the presumption of in-nocence available to him under thefundamental prin-ciple of criminal jurisprudence that every personshall be presumed to be innocent unless he is proved guilty by acompetent court of law. Secondly, the accused having securedhis acquittal, the presumption of his in-nocence is further reinforced,reaffirmed and strength-ened by the trial court.

(5) If two reasonable conclusions are possible on the basis of theevidence on record, the appellate court should not disturb the findingof acquittal recorded by the trial court.”

25. We find that the High Court interfered with the findings ofacquittal even though the conclusion drawn by the trial court is a possibleconclusion on the basis of evidence on record. We find that the prosecutionhas failed to prove the role of accused in causing death of the deceasedRatti Ram inasmuch as the recovery of dead body in pursuance of similardisclosure statements made by accused Satish Kumar and Rajeev Kumaris not proved. In the absence of any evidence led by the prosecution as A

B

C

D

E

F

G

H

Ato who fired the fatal shot, the benefit of doubt must go to the accusedpersons and was rightly granted by the learned trial court.

26. Consequently, we find that the order of the High Courtconvicting the appellants is wholly illegal, unwarranted and unjust. Theconviction of the appellants for the offences punishable under SectionB302 read with Section 34 IPC and Sections 25 and 27 of the Act is setaside. Accordingly, both the appeals are allowed. The order of acquittalrecorded by the trial court is restored. The bail bonds shall standdischarged. All the accused be set at liberty, if not wanted in any othercase.

C

Devika Gujral

Appeals allowed.

D

E

F

G

H