| Headnote |
Code of Criminal Procedure, 1973 – s.378 – Appeal in case of acquittal – Scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court: Held: It is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles: (a) That the judgment of acquittal suffers from patent perversity; (b) That the same is based on a misreading/omission to consider material evidence on record; (c) That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record – The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court. [Paras 39 and 40] Penal Code, 1860 – s. 302 r/w. s. 34 – Prosecution case that accused A-1, A-2, A-3 and A-4 armed with weapons attacked victim-son of PW-1, PW-1, PW-2, PW-3, PW-4 and PW-5 – Accused belaboured son of PW-1 – As a result, he died – PW-1 ran away hid behind the bushes – After sunset, he returned to his village and told them about the incident – Next day, in morning a written complaint filed before police station – Charge-sheet filed – The Trial Court discarded prosecution story and acquitted accused-appellants (A-1, A-2 and A-3) along with other accused, however, the High Court reversed the acquittal of A-1, A-2 and A-3 and convicted these accused u/s. 302 r/w. s.34 IPC – Correctness:Held: It was alleged in the report that the complainant-PW-1 along with PW-2, PW-3, PW-4 and PW-5 (servants, who had accompanied the deceased to erect a bund in their land) witnessed the incident wherein, however, none other than the deceased received a single injury in the incident – The witnesses PW-2, PW-6 and PW-15 admitted that it was raining incessantly in the village for almost three days – In such circumstances, the reason assigned by the complainant(PW-1) for the deceased and the four servants(PW-2, PW-3, PW-4 and PW-5) to have gone to the agricultural land, i.e., for putting up a bund is totally unacceptable – Testimony of PW-1 suffers from patent infirmities, contradictions and inherent loopholes which brings him within the category of wholly unreliable witness – There is a grave contradiction on the aspect as to whether the report was submitted by the complainant(PW-1) in the form of a written complaint or whether the oral statement of complainant(PW-1) was recorded by the police officials at his home leading to the registration of FIR(Exhibit P-10) – Further, PW-6 (who claimed to be an eye witness of the incident) categorically stated that it was he who had informed the family members, the informant PW-1 – Thus, the case set up by prosecution that complainant, PW-1 was an eye-witness to the incident, is totally contradicted by evidence of PW-6 – The conduct of the family members of the deceased and the other villagers in not taking any steps to protect the dead body for the whole night and instead, casually going back to their houses without giving a second thought as to what may happen to the mortal remains of the deceased, lying exposed to the elements is another circumstance which creates a grave doubt in the mind of the Court that no one had actually seen the incident and it was a case of blind murder which came to light much later – There is no logical explanation for the presence of the deceased and the servants in their field on the date and time of the incident – Further, the High Court heavily relied upon the circumstance of recoveries of weapons made at the instance of the accused as incriminating evidence – However, as was rightly pointed out that the complainant (PW-1) admitted in his cross-examination that he was shown the weapons of the offence by the police on the date of incident itself – In light of the legal principles, none of the essential mandates governing an appeal against acquittal were adverted to by Division Bench of the High Court which proceeded to virtually decide the appeal as a first Court on independent appreciation of evidence and recorded its own findings to hold the accused appellants(A-1, A-2 and A-3) guilty of the charge u/s. 302 r/w. s.34 IPC – Thus, the impugned judgment rendered by the High Court cannot be sustained. [Paras 44, 47, 53, 41] Evidence Act, 1872 – s. 27 – Requirement under law so as to prove a disclosure statement recorded: Held: The statement of an accused recorded by a police officer u/s. 27 of the Evidence Act is basically a memorandum of confession of the accused recorded by the Investigating Officer during interrogation which has been taken down in writing – The confessional part of such statement is inadmissible and only the part which distinctly leads to discovery of fact is admissible in evidence as laid down by this Court in the case of State of Uttar Pradesh v. Deoman Upadhyaya – Thus, when the Investigating Officer steps into the witness box for proving such disclosure statement, he would be required to narrate what the accused stated to him – The Investigating Officer essentially testifies about the conversation held between himself and the accused which has been taken down into writing leading to the discovery of incriminating fact(s). [Paras 59 and 60] Evidence Act, 1872 – s. 60 – Oral evidence must be direct: Held: As per Section 60 of the Evidence Act, oral evidence in all cases must be direct – The section leaves no ambiguity and mandates that no secondary/hearsay evidence can be given in case of oral evidence, except for the circumstances enumerated in the section – In case of a person who asserts to have heard a fact, only his evidence must be given in respect of the same. [Para 61] Evidence Act, 1872 – s.27 – Exhibiting memorandum – Proof of contents – Narration of events – Disclosure statements resulting into discovery of weapons: Held: It is settled that mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents – While testifying on oath, the Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement – In the instant case, perusal of the extracted part of the evidence of the Investigating Officer(PW-27), in the backdrop of the exposition of law laid down by this Court, the interrogation memos of the accused A-2(Exhibit P-15) and A-1 (Exhibit P-16), it is clear that the Investigating Officer(PW-27) gave no description at all of the conversation which had transpired between himself and the accused which was recorded in the disclosure statements – Thus, these disclosure statements cannot be read in evidence and the recoveries made in furtherance thereof are non est in the eyes of law – The Investigating Officer(PW-27) also stated that in furtherance of the voluntary statements of accused(A-1 and A-2), he recovered and seized two axes and one koyta produced by A-1 in the field and one jambiya produced by A-2 – The Investigating Officer(PW-27) nowhere stated in his deposition that the disclosure statement of the accused resulted into the discovery of these weapons pursuant to being pointed out by the accused – The Investigating Officer(PW-27) further stated that he arrested accused A-3, recorded his voluntary statement and seized two sickles – However, neither the so called voluntary statement nor the seizure memo were proved by the Investigating Officer(PW-27) in his evidence – Thus, neither the disclosure memos were proved in accordance with law nor the recovery of the weapons from open spaces inspire confidence. [Paras 66-69] |
