State of Himachal Pradesh vs Suresh Kumar

Sanjay Karol, J.—Assailing the judgment dated 1.4.2009, passed by learned Addl. Sessions Judge, Sirmaur District at Nahan, H.P., in Sessions Trial No. 34-N/7 of 2007, titled as State of H.P. vs. Suresh Kumar, whereby respondent-accused stands acquitted, State has filed the present appeal under the provisions of Section 378 of the Code of Criminal Procedure, 1973.

It is the case of prosecution that on 11.9.2004 at 7.30 p.m. Sanjeev Kumar was having food in the Dhaba at Badripur Bazar belonging to the accused. Zakir Khan (PW-2) and Sarwan Kumar (PW-3) were also present there. Immediately after consuming food, Sanjeev Kumar fell unconscious. Upon getting information, Chaman Lal (PW-1), father of Sanjeev Kumar, reached the spot along with his wife Smt. Sarla Devi. Sanjeev Kumar was taken to the hospital at Paonta Sahib where he was declared as brought dead. Information was furnished to Police Station Paonta Sahib and rapt (Ext. PW-4/A) recorded by HHC-Amar Singh (PW-4). On receiving information SI-Balak Ram (PW-7) visited the hospital and prepared inquest report (Ext. PW-7/A). Post mortem of dead body was conducted by Dr. R.K. Dhiman (PW-10) who, based on report of the chemical analyst (Ext. PW-9/D), issued post mortem report (Ext. PW-7/B). Cause of death, as per medical evidence was asphyxia, due to consumption of phosphide. Chaman Lal (PW-1) moved application (Ext. PW-1/A) before the Deputy Commissioner, Sirmour, which led to registration of F.I.R. No. 235/2005, dated 15.7.2005 (Ext. PW-1/B) at Police Station Paonta Sahib, under the provisions of Section 302 of the Indian Penal Code, against the accused. With the completion of investigation, challan was presented in the Court for trial.

Accused was charged for having committed an offence punishable under the provisions of Section 302 of the Indian Penal Code, to which he did not plead guilty and claimed trial.

In order to prove its case, in all, prosecution examined ten witnesses and statement of the accused under Section 313 Cr. P.C. was also recorded, in which he took plea of innocence and false implication. No evidence in defence was led by the accused.

Based on the testimonies of witnesses and the material on record, trial Court acquitted the accused of the charged offence. Hence, the present appeal by the State.

We have heard Mr. B.S. Parmar, Mr. Ashok Chaudhary and Mr. V.S. Chauhan, learned Addl. Advocate Generals, assisted by Mr. Vikram Thakur, learned Dy. A.G., on behalf of the State as also Mr. Anup Chitkara, learned Advocate, on behalf of the accused. We have also minutely examined the testimonies of the witnesses and other documentary evidence so placed on record by the prosecution. Having done so, we are of the considered view that no case for interference is made out at all. We find that the judgment rendered by the trial Court is based on complete, correct and proper appreciation of evidence (documentary and ocular) so placed on record. There is neither any illegality/infirmity nor any perversity with the same, resulting into miscarriage of justice.

It is a settled principle of law that acquittal leads to presumption of innocence in favour of an accused. To dislodge the same, onus heavily lies upon the prosecution. Having considered the material on record, we are of the considered view that prosecution has failed to establish the essential ingredients, so required to constitute the charged offences.

In Prandas Vs. The State, , Constitution Bench of the apex Court, has held as under:

"(6) It must be observed at the very outset that we cannot support the view which has been expressed in several cases that the High Court has no power under S. 417, Criminal P.C., to reverse a judgment of acquittal, unless the judgment is perverse or the subordinate Court has in some way or other misdirected itself so as to produce a miscarriage of justice. In our opinion, the true position in regard to the jurisdiction of the High Court under S. 417, Criminal P.c. in an appeal from an order of acquittal has been stated in - AIR 1934 227 (Privy Council), in these words:

"Sections 417, 418 and 423 of the Code give to the High Court full power to review at large the evidence upon which the order of acquittal was founded, and to reach the conclusion that upon that evidence the order of acquittal should be reversed. No limitation should be placed upon that power, unless it be found expressly stated in the Code. But in exercising the power conferred by the Code and before reaching its conclusions upon fact, the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate Court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses. To state this, however, is only to say that the High Court in its conduct of the appeal should and will act in accordance with rules and principles well known and recognized in the administration of justice." "

It is well established principle of law that (i) the appellate Court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though the view of the appellate court may be more probable; (ii) while dealing with a judgment of acquittal, the appellate court must consider entire evidence on record, so as to arrive at a finding as to whether views of the trial court are perverse or otherwise unsustainable; (iii) the appellate court is entitled to consider whether in arriving at a finding of fact, trial Court failed to take into consideration any admissible fact; and (iv) the trial Court failed to take into consideration any admissible evidence and/or had taken into consideration evidence brought on record contrary to law. (See: Balak Ram Vs. State of U.P., ; Allarakha K. Mansuri Vs. State of Gujarat, ; Raghunath and Ram Kishan and Others Vs. State of Haryana and Others, ; State of Uttar Pradesh Vs. Ram Veer Singh and Others, ; S. Rama Krishna Vs. S. Rami Reddy (D) by his LRs. and Others, ; Sambhaji Hindurao Deshmukh and Others Vs. State of Maharashtra, ; Arulvelu and Another Vs. State represented by the Public Prosecutor and Another, ; Perla Somasekhara Reddy and Others Vs. State of A.P. rep. by Public Prosecutor, ; and Ram Singh @ Chhaju Vs. State of Himachal Pradesh, .

In AIR 1934 227 (Privy Council), the Privy Council held that:

"...the High Court should and will always give proper weight and consideration to such matters as (1) the views of the trial Judge as to the credibility of the witnesses, (2) the presumption of innocence in favour of the accused, a presumption certainly not weakened by the fact that he has been acquitted at his trial, (3) the right of the accused to the benefit of any doubt, and (4) the slowness of an appellate court in disturbing a finding of fact arrived at by a Judge who had the advantage of seeing the witnesses...."

In Chandrappa and Others Vs. State of Karnataka, , the apex Court observed as under:

"(1) An appellate court has full power to review, re-appreciate 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."

In State of U.P. Vs. Banne @ Baijnath and Others, , the apex Court gave illustrations of certain circumstances in which the Court would be justified in interfering with a judgment of acquittal by the High Court, which principle, in our considered view, would squarely apply to the judgment under review by us. The circumstances include; (i) The High Court''s decision is based on totally erroneous view of law by ignoring the settled legal position; (ii) The High Court''s conclusions are contrary to evidence and documents on record; iii) The entire approach of the High Court in dealing with the evidence was patently illegal leading to grave miscarriage of justice; (iv) The High Court''s judgment is manifestly unjust and unreasonable based on erroneous law and facts on the record of the case; (v) Apex Court must always give proper weight and consideration to the findings of the High Court; and (vi) the apex Court would be extremely reluctant in interfering with a case when both the Sessions Court and the High Court have recorded an order of acquittal. The apex Court further held that "Thus, the law on the issue can be summarised to the effect that in exceptional cases where there are compelling circumstances, and the judgment under appeal is found to be perverse, the appellate court can interfere with the order of acquittal. The appellate court should bear in mind the presumption of innocence of the accused and further that the trial Court''s acquittal bolsters the presumption of his innocence. Interference with the decision of the trial court in a routine manner, where the other view is possible should be avoided, unless there are good reasons for such interference."

(Emphasis supplied)

That the accused was running a dhaba is not in dispute. Through the testimony of Dr. Rakesh Kumar Dhiman (PW-10), who conducted the post mortem of dead body, it stands proved that accused died on account of asphyxia caused by consumption of phosphide.

SI-Balak Ram (PW-7) who took the dead body for post mortem, in fact goes to state that during the course of inquiry so conducted under Section 174 Cr. P.C., Chaman Lal (PW-1) made a statement that "his son had died due to fit" and at that time, he had not expressed any suspicion on anyone. In fact, he proves statement (Ext. DA) of Chaman Lal and his wife Sarla Devi to this effect. Significantly, no cooked vegetable or poison was recovered from the dhaba of the accused as is so admitted by him. There is nothing, even by way of link evidence to prove the guilt of the accused.

HHC-Sanjay Kumar (PW-5) and ASI Raghubir Singh (PW-8) only establish report (Ext. PW-9/D) of the chemical analyst so obtained from the State Forensic Science Laboratory, Junga. But this is not of any seized article belonging to the accused. HHC-Amar Singh (PW-4) made entry in the roznamcha.

We further find Jakir Khan (PW-2) not to have supported the prosecution. He was extensively cross examined by the public prosecutor, yet nothing fruitful could be elicited from his testimony. In fact, in his uncontroverted testimony he states that the deceased who used to take drugs, remained intoxicated throughout the day. Sarwan Kumar (PW-3) categorically does not state that food was poisoned. All that he states is that after taking meals, deceased fell unconscious. This witness admits that 10 to 15 persons were taking meals in the dhaba at that time. Significantly none other than the deceased fell unconscious or was found to have suffered from any ailment after consuming food. Testimony of this witness is also not believable for he disclosed occurrence of the incident only after a period of three months. Why so? he does not explain.

Chaman Lal (PW-1), father of the deceased, is not a spot witness. All that he states is that when he got information of his son having collapsed in a dhaba, he rushed to the spot and took him to the hospital where he was declared as brought dead. He moved applications before the Sub Divisional Magistrate and Deputy Commissioner for thorough investigation for the reason that police refused to register any case. His testimony, to say the least, does not advance the case of prosecution at all. He admits that there are shops adjoining to the dhaba, just at a distance of 50 meters from the Police Post, which also is visible from every nook and corner of the area. No foul play was reported to him by anyone. He admits that inquiry in the matter was conducted by the S.H.O., concerned Dy.S.P. as also the C.I.A. Unit, and apparently nothing incriminatory was found against the accused.

We have perused the testimony of the Investigating Officer, Inspector Narveer Singh (PW-9), who only corroborates the version of SI-Balak Ram (PW-7) and Chaman Lal (PW-1), to the effect, that independent inquiry was got conducted from various agencies and nothing incriminatory was found against the accused. Only on the asking of Chaman lal, F.I.R. was registered, where after, challan was presented in the Court. Significantly report (Ext. DB) establishing no involvement of the accused was prepared and filed by him.

Having perused the testimony of prosecution witnesses on record, it cannot be said that prosecution has been able to prove its case, beyond reasonable doubt that accused murdered Sanjeev Kumar, by leading clear, cogent, convincing and reliable material on record. It cannot be said that findings returned by the Court below are not borne out from record, are perverse, illegal, erroneous or have arisen out of incomplete appreciation of prosecution evidence.

The accused has had the advantage of having been acquitted by the Court below. Keeping in view the ratio of law laid down by the Apex Court in Md. Ankoos and Others Vs. The Public Prosecutor, High Court of A.P., , since it cannot be said that the Court below has erred in correctly appreciating the evidence on record, or that acquittal of the accused has resulted into travesty of justice, no interference is warranted in the instant case.

For all the aforesaid reasons, present appeal, devoid of merit, is dismissed, so also pending applications, if any. Bail bonds, if any, furnished by the accused are discharged. Records of the Court below be immediately sent back.