ANWAR ALI AND ANOTHER versus THE STATE OF HIMACHAL PRADESH

[2020] 9 S.C.R.

ANWAR ALI AND ANOTHER

THE STATE OF HIMACHAL PRADESH

(Criminal Appeal No. 1121 of 2016)

BSEPTEMBER 25, 2020

[ASHOK BHUSHAN, R. SUBHASH REDDY ANDM. R. SHAH, JJ.]

Penal Code, 1860:

Css. 302/34, 392, 201 and 420 – Prosecution under –Circumstantial evidence – Acquittal by trial court in view ofcontradictions in prosecution case – High Court reversed theacquittal order holding that the contradictions were minor in nature– Appeal to Supreme Court – Held: In the case of circumstantialevidence, the circumstances, taken cumulatively, form chain soDcomplete that there is no escape from the conclusion that the crimewas committed by the accused and none else – The contradictions,which came to be considered by trial court, cannot be said to beminor – Trial court was justified in recording the acquittal observingthat prosecution failed to complete entire chain of events – HighECourt was not justified in reversing acquittal order.

Code of Criminal Procedure, 1973:

s. 378 – Appeal against acquittal – Scope and ambit of –Held: Court can interfere with order of acquittal only in compellingcircumstances, where the order under appeal is perverse – In theFpresent case, the acquittal order under appeal cannot be said to beperverse as the same was based on appreciation of entire evidenceon record.

Investigation:

Defective investigation – Non-compliance of provisions u/ss.166(3) & (4) and 100(4) Cr. P.C. – Held: Non-compliance of theprovisions may not be ground to acquit the accused – But, whererecovery is seriously doubted, non-compliance would play animportant role – Code of Criminal Procedure, 1973 – ss. 100(4)and 166(3) & (4).

Evidence:

Circumstantial evidence – Motive – Absence – Effect of –Held: Proving of motive does supply link in the chain ofcircumstantial evidence – But absence of motive cannot be groundto reject prosecution case – Absence of motive can be factor thatweighs in favour of the accused.

Allowing the appeal, the Court

HELD: 1.1 In exceptional cases where there arecompelling circumstances, and the judgment under appeal is foundto be perverse, the appellate court can interfere with the orderof acquittal. The appellate court should bear in mind thepresumption of innocence of the accused and further that thetrial court’s acquittal bolsters the presumption of his innocence.Interference in routine manner where the other view is possibleshould be avoided, unless there are good reasons for interference.[Para 5.2.1][894-E-F]

Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9SCR 1039; Vijay Mohan Singh v. State of Karnataka(2019) 5 SCC 436 : [2019] 6 SCR 994 – relied on.

1.2 If decision is arrived at, on the basis of no evidenceor thoroughly unreliable evidence that no reasonable personwould act upon it, the order would be perverse. But if there issome evidence on record which is acceptable and which could berelied upon, the conclusions would not be treated as perverseand the findings would not be interfered with. [Para 5.2.3][895-C-D]

Kuldeep Singh v. Commissioner of Police (1999) 2 SCC10 : [1998] 3 Suppl. SCR 594 – relied on.

1.3 In the present case, the findings recorded by the trialCourt, based on appreciation of the entire evidence on record,cannot be said to be either perverse or contrary to the evidenceon record and/or it cannot be said that the trial Court did notconsider any material evidence on record. [Para 10][905-B]

2.1 In case of circumstantial evidence, the circumstances,taken cumulatively, should form chain so complete that there is

Ano escape from the conclusion that within all human probability,the crime was committed by the accused and none else and thecircumstantial evidence in order to sustain conviction must becomplete and incapable of explanation of any other hypothesisthan that of the guilt of the accused and such evidence should notonly be consistent with the guilt of the accused but should beBinconsistent with his innocence. [Para 5.4][899-A-B]

Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9SCR 1039; G. Parshwanath v. State of Karnataka(2010) 8 SCC 593 : [2010] 10 SCR 377 – relied on.

C2.2 The contradictions which came to be considered by thetrial Court cannot be said to be minor contradictions. The HighCourt without giving any cogent reasons has interfered with thefindings of fact recorded by the trial Court solely by observingthat those contradictions were minor contradictions.[Para 6.1][902-D-F]D

2.3 In the present case, according to the prosecution andPW18-IO, on the basis of disclosure statements made by theaccused on 8.9.2010, the knife and rope were recovered on9.9.2010. However, PW4 and PW5 have categorically stated intheir deposition that the police brought the sniffer dogs onE2.9.2010 and the sniffer dogs recovered rope, knife etc. on2.9.2010. So, according to even PW4 and PW5, the rope and knifewere recovered on 2.9.2010 with the help of sniffer dogs.However, neither in the FIR there was mention of recovery ofknife and rope on 2.9.2010 with the help of sniffer dogs nor theIO in his examination-in-chief has stated so. The accused wereFarrested on 8.9.2010 and prior thereto on 2.9.2010 theinvestigating officer visited the spot from where the knife andrope was recovered on 2.9.2010. In cross-examination, the IOadmitted that he visited the spot from where the knife wasrecovered with sniffer dogs on 2.9.2010. He has also admitted inGthe cross-examination that this fact has not been mentioned inthe FIR or in the statement of any witness. Thus, the prosecutionand the IO suppressed the material facts. Even in the cross-examination, the IO has stated that the sniffer dog had donenothing on the spot. In the cross-examination, he has alsoH

specifically stated that “it is incorrect to suggest that the snifferdog had traced the strings Ex. P52, knife Ex. P59 and vest Ex.P54. However, PW4 and PW5 in their deposition havecategorically 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 thedisclosure statements of the accused and the recovery of theknife, rope etc. on 9.9.2010 as alleged by the prosecution. Fromevidence, it emerges that the knife, rope and vest were recoveredon 2.9.2010 i.e., much prior to 8.9.2010 when the accused werearrested. [Para 6.1][902-F-H; 903-A-C]

2.4 Even the recovery of jeep from Chandigarh and recoveryof photographs and the recovery of mobile phone belonging toPW7 from the jeep also create serious doubts. The InvestigatingOfficer did not follow the procedure as required to be followedunder Section 166 (3 & 4), Cr.P.C. Even he did not comply withthe provisions of Section 100 (4) Cr.P.C. Non-following of theaforesaid provisions alone may not be ground to acquit theaccused. However, considering the overall surroundingcircumstances and in case where recovery is seriously doubted,non-compliance of the aforesaid, play an important role.[Para 7][903-D-F]Ronny v. State of Maharashtra (1998) 3 SCC 625 :[1998] 2 SCR 162; C. Muniappan v. State of TamilNadu (2010) 9 SCC 567 : [2010] 10 SCR 262; State ofPunjab v. Balbir Singh (1994) 3 SCC 299 : [1994] 2SCR 208; Sudha Renukaiah v. State of Andhra Pradesh(2017) 13 SCC 81 – referred to.

2.5 As regards the recovery of the mobile phone, PW7 hasstated that his mobile was stolen or cheated, he never filed anycomplaint earlier. Even the IO has not tried to have the call detailsof the mobile. He has not tried to verify from the call details, theconversation to or from the mobile. Even the disclosure statementof the accused with respect to crates being sold to PW6 is foundto be suspicious and doubtful. Cogent reasons have been givenby the trial Court for the same. [Para 8][903-G-H; 904-A]

[2020] 9 S.C.R.

A2.6 If motive is proved, that would supply link in the chainof circumstantial evidence but the absence thereof cannot be aground to reject the prosecution case. However, at the same time,absence of motive in case depending on circumstantial evidenceis factor that weighs in favour of the accused. [Para 9][904-C]

BSuresh Chandra Bahri v. State of Bihar (1995) 1 Suppl.SCC 80 : [1994] 1 Suppl. SCR 483; Babu v. State ofKerala (2010) 9 SCC 189 : [2010] 9 SCR 1039– relied on.

2.7 Trial Court was justified in recording the acquittal byCobserving that prosecution has failed to complete the entire chainof events. Therefore, in the facts and circumstances of the case,the High Court is not justified in reversing the order of acquittal.[Para 10][905-C]

Bannareddy v. State of Karnataka (2018) 5 SCC 790 :D[2018] 4 SCR 623; State of Rajasthan v. Mukesh Kumaralias Mahesh Dhaulpuria (2019) 7 SCC 678; State ofRajasthan v. Madan alias Madaniya (2019) 13 SCC653 – referred to.

Case Law Reference

E[2018] 4 SCR 623referred toPara 3.1(2019) 7 SCC 678referred toPara 3.1(2019) 13 SCC 653referred toPara 3.1[1998] 2 SCR 162referred toPara 4.4F[2010] 10 SCR 262referred toPara 4.4[1994] 2 SCR 208referred toPara 4.4.(2017) 13 SCC 81referred toPara 4.4[2010] 9 SCR 1039relied onPara 5.2.1G[1998] 3 Suppl. SCR 594relied onPara 5.2.3[2019] 6 SCR 994relied onPara 5.3[2010] 9 SCR 1039relied onPara 5.4

CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.1121 of 2016.

From the Judgment and Order dated 20.09.2016 of the High Courtof Himachal Pradesh at Shimla in Crl. Appeal No. 464 of 2012.

Manan Kumar Mishra, Anjani Kumar Mishra, Hardeep KaurMishra, Ms. Anjul Dwivedi, Sunil Kumar Agarwal, Shiv Ram Pandey,Abhimanyu Jhamba, Ms. R.A. Thonpinao Thangal, Ashish Jhamb,Ms. Hemlata Ranga, Ms. Hatnei Mawi, Abhinav Mukerji, Advs. for theappearing parties.

The Judgment of the Court was delivered by

M. R. SHAH, J.

1. Feeling aggrieved and dissatisfied with the impugned judgmentand order dated 20.09.2016 passed by the High Court of HimachalPradesh in Criminal Appeal No. 464 of 2012, by which the High Courthas allowed the said appeal preferred by the respondent – The State ofHimachal Pradesh and has reversed the judgment and order of acquittalpassed by the learned trial Court and consequently has convicted theappellants – original accused for the offences punishable under Sections302 read with 34, 392, 201 and 420, IPC and has sentenced the appellantsherein – original accused to undergo life imprisonment for the offencespunishable under Section 302 read with 34, IPC, the appellants – originalaccused have preferred the present appeal.

2. That the appellants herein – original accused were charged forthe offences punishable under Sections 302 read with 34, 392, 420 and201, IPC for having committed the murder of one Deepak. That thedead body of the deceased was found on 2.9.2010 near bypass BihaliRoad, Chandigarh. That the dead body was seen by one JashwinderSingh, PW4, who informed the police station, Bhunter. On receivingsuch information, the police came on the spot; recorded the statement ofPW4; prepared Rukka and sent the same through Constable Pushparaj,PW2 to police station, Bhunter. FIR was registered by Head Constable

ATara Chand. That the dead body was identified by the father of thedeceased. The investigating officer, PW18 conducted the investigation.The dead body was sent for post mortem.

SHO/SI Narayan received secret information on 5.9.2010 thatone vehicle (jeep) was lying at Chandigarh in abandoned condition. IOBalong with the other police officers went to Chandigarh and recoveredthe abandoned vehicle from Sector 45C, Chandigarh. On checking thejeep, one envelope was found to have been recovered containing mobilephone, three photographs and the documents of the vehicle were lyingon the dash board of the jeep. IO took into possession the vehicle andthe documents vide memo. IO dialled from recovered mobile to his ownCmobile and the number was detected as [REDACTED]. From the recoveredphotographs, the accused were searched at place Pandoh Bajaura Aut.Both the accused were arrested on 8.9.2010. During the investigation,the IO recovered the crates from Punjab. IO also recovered one knifeand the rope on 09.09.2010, alleged to have been used in commission of

Dthe offence. After conclusion of the investigation, IO filed chargesheetagainst the accused persons for the aforesaid offences.

2.1 To prove the case against the accused, the prosecutionexamined in all 9 witnesses, out of 19 witnesses shown in the chargesheet,details of which are given below:

The prosecution also brought on record the documentary evidenceof the aforesaid witnesses. After conclusion of the recording of theevidence, statement of the accused persons under Section 313, Cr.P.C.were recorded.

Before the trial Court, the prosecution mainly relied upon thedisclosure statements, recovery of vehicle (jeep), recovery of knife andrope from the spot, recovery of mobile and photographs (from the jeep).Before the trial Court, the case was based on circumstantial evidenceas there was no direct evidence. That on appreciation of evidence onrecord, both oral as well as documentary, the learned trial Court by adetailed reasoning did not believe the disclosure statements, recovery ofknife and rope alleged to have been used for commission of the offence,recovery of mobile and the recovery of photographs from the jeep. Thaton appreciation of evidence, the learned trial Court found that theprosecution withheld the material information with respect to the snifferdogs and on appreciation of evidence found that the recoveries weremade earlier and the panchnama of the same were prepared subsequentlyon which PW5 and PW6 put their signatures. Having found that theprosecution has failed to establish and prove the complete chain of eventsand that it was case of circumstantial evidence, by detailed judgmentand order, the learned trial Court acquitted both the accused for theoffences for which they were tried.2.2 On appeal by the State, by the impugned judgment and order,the High Court has reversed the judgment and order of acquittal passedby the learned trial Court and consequently has convicted the accusedfor the offences punishable under Sections, 302 read with 34, 392, 420and 201, IPC. By the impugned judgment and order, the High Court hassentenced the appellants – original accused to undergo life imprisonmentfor the offence under Section 302 read with 34, IPC. The High Courthas also sentenced the appellants to undergo rigorous imprisonment fora period of seven years and to pay fine of Rs.25,000/- each for theoffence under Section 392, IPC, and in default of payment of fine, furtherrigorous imprisonment for period of three months. The High Court hasalso sentenced the appellants to undergo rigorous imprisonment for aperiod of seven years and to pay fine of Rs.10,000/- each for theoffence under Section 420, IPC, and in default of payment of fine, furtherrigorous imprisonment for period of three months. The High Court hasalso sentenced the appellants to undergo rigorous imprisonment for

Aperiod of two years and to pay fine of Rs.5,000/- each for the offenceunder Section 201, IPC, and in default of payment of fine, further rigorousimprisonment for period of three months. However, all the sentenceswere directed to run concurrently.

2.3 Feeling aggrieved and dissatisfied with the impugned judgmentBand order passed by the High Court in reversing the judgment and orderof acquittal and convicting the appellants for the aforesaid offences, theappellants-original accused have preferred the present appeal.

3. Learned counsel appearing on behalf of the appellants-accusedhas made the following submissions:C

i)that the High Court has exceeded in its jurisdiction in reversingthe well-reasoned judgment and order of acquittal passed bythe learned trial Court and consequently convicting theaccused;

ii)that the High Court has reversed the judgment of the acquittalDon suspicion, surmises and conjectures;

iii) that the learned trial Court, as such, committed no error inacquitting the accused;

iv) that the learned trial Court on appreciation of evidencedisbelieved the recovery of knife and rope at the instance ofEthe accused and it was held that very important link of thechain was missing;

v)that the learned trial Court gave specific finding onappreciation of evidence on doubtful disclosure statements;

Fvi) that the High Court has failed to appreciate and consider thatthe knife, which is alleged to have been recovered on thedisclosure statements of the accused persons, had alreadybeen recovered on 2.9.2010 with the help of sniffer dogs,which was established from the evidence of PW4 and PW5;

Gvii) that the High Court ought to have appreciated that the recoveryof knife and rope alleged to have been recovered on thedisclosure statements of the accused persons on 09.09.2010was concocted one and to fill up the gaps in the prosecutioncase;

viii) that even the recovery of photographs, mobile phone of PW7and the jeep from Chandigarh on 6.9.2010 is itself verydoubtful, which came to be considered in detail by the learnedtrial Court;

ix) that even the conduct of Bhuntar police and the IO in notinforming or taking help of the jurisdictional police andChandigarh police while conducting investigation in thoseareas, as required under Section 166(3) Cr.P.C. and otherlapses has made the entire prosecution case full of doubtsand suspicious;

x)that even the IO has not tried to examine any independentwitness of Chandigarh, though several people were there atthe time of recovery;

xi) that even the recovery of mobile of PW7 is very doubtful.The IO never tried to find out the call details of recoveredmobile. Even he did not look into call-log of the mobile himselfin order to find out the contact details of the real culprits.Even the IO did not enquire that after robbing the mobile ofPW7, who were the persons contacted by the miscreants;how was the mobile used by the accused; whether the mobilewas taken to Ropar by the accused; who were the personstaking mobile to Chandigarh and kept in the jeep with thephotographs of the appellants? All these questions could havebeen easily solved from the call-log/call details of the mobileif it was really stolen and recovered from the jeep;

xii) that even the prosecution has not examined the best materialwitnesses like Biri Singh, Dinesh Singh, Lucky, Subash (thefather of the deceased), Ram Pal, Niranjan Singh and JyotiKumar. It is submitted that non-examination of materialwitnesses on recovery and seizure memos has proved fatalfor the prosecution and has created serious doubts on theprosecution case. It is submitted that there is absolutely noreason as to why these material witnesses were not examinedby the prosecution, and most of the police witnesses only wereproduced in the court, It is submitted that non-examination ofmaterial witnesses is fatal for the prosecution;

Axiii) that it is an admitted position that it is case of circumstantialevidence. Therefore, before convicting the accused, theprosecution has to prove the complete chain of events whichwill lead to the only conclusion that it is the accused whoalone has committed the offence. It is submitted that in thepresent case the prosecution as such has failed to completeBthe chain of events; and

xiv) that there are material contradictions and even the recoveryof jeep, knife and rope, photographs from the jeep, as observedand held by the learned trial Court, is doubtful and createsserious doubts and therefore the learned trial Court rightlyCacquitted the accused, which ought not to have interferedwith by the High Court.

3.1 Making the above submissions and taking us to the depositionof PW4, PW5 and PW18 and relying upon the decisions of this Court inthe cases of Babu v. State of Kerala, (2010) 9 SCC 189; BannareddyDv. State of Karnataka (2018) 5 SCC 790; State of Rajasthan v.Mukesh Kumar alias Mahesh Dhaulpuria (2019) 7 SCC 678; andState of Rajasthan v. Madan alias Madaniya, (2019) 13 SCC 653,it is prayed to allow the present appeal and set aside the impugnedjudgment and order passed by the High Court and restore the well-Ereasoned judgment and order of acquittal passed by the learned trialCourt.4. The present appeal is vehemently opposed by the learned counselappearing on behalf of the respondent – State of Himachal Pradesh.

4.1 It is submitted that in the present case the High Court hasFafter re-appreciation of entire evidence on record, found the accusedguilty for the unnatural death of Deepak Kumar deceased. It is submittedthat as such the re-appreciation of the entire evidence by the first appellatecourt is permissible;

4.2 It is submitted that the High Court, on re-appraisal of theGentire evidence on record, has considered the following circumstancespointing to the guilt of the accused:

a) recovery of jeep, mobile phone and photographs fromChandigarh

b) recovery of weapon of offence on the disclosure statementHof appellant no.1 – Anwar Ali

c) recovery of crates on the disclosure statement of appellantno.1 – Anwar Ali

d) recovery of clothes of accused

e) medical evidence

f)no defence evidence led

4.3 It is submitted that the High Court has given cogent reasonswhile considering the afore-stated circumstances against the accused.It is submitted that the High Court has convicted the accused on re-appreciation of the entire evidence on record, more particularly thedeposition of PW1, PW3, PW4, PW5, PW11 and PW18.

4.4 Now so far as the submission on behalf of the accused onnon-examination of independent witnesses at the time of recovery andnon-compliance of the provisions of Section 100(4) Cr.P.C. and otherrelated provisions is concerned, it is submitted by the learned counselappearing on behalf of the respondent-State that the persons who weregathered at the time of recovery were mere spectators and none hadcome forward to act as witness in the matter.

It is submitted that even otherwise as held by this Court in thecase of Ronny v. State of Maharashtra, (1998) 3 SCC 625 that even ifthe witness has been brought by the investigating agency along withthem, they cannot be disbelieved only on that ground.

4.5 In the alternative, it is submitted by the learned counselappearing on behalf of the respondent-State that non-compliance of thedirectory provisions contained in Section 100 Cr.P.C. can at the most betreated as defective investigation but that cannot come in the way ofdispensation of justice. Heavy reliance is placed upon the decision ofthis Court in the case of C. Muniappan v. State of Tamil Nadu, (2010)9 SCC 567 (para 55).

It is submitted that as held by this Court in the case of State ofPunjab v. Balbir Singh, (1994) 3 SCC 299 (para 6), defectiveinvestigation if any does not vitiate the trial. It is submitted that as heldby this Court in the case of Sudha Renukaiah v. State of AndhraPradesh, (2017) 13 SCC 81, in which the decision in the case ofMuniappan (supra) was relied upon, that even if the IO has committedany error and has been negligent in carrying out any investigation or inthe investigation there is some omission and defect, it is the legal obligation

Aon the part of the court to examine the prosecution evidence de horssuch lapses.

4.5 It is further submitted that in the present case the recovery ofweapon of offence; recovery of jeep; recovery of photographs and thestolen mobile phone of PW7; recovery of crates have been establishedBand proved by the prosecution beyond doubt by examining the relevantwitnesses, which as such, were not believed by the learned trial Courtfor minor contradictions. It is submitted that therefore the order of acquittalpassed by the learned trial Court warranted interference by the HighCourt.

C4.6 Now so far as the submission on behalf of the accused that inthe present case the High Court has committed grave error in interferingwith the order of acquittal passed by the learned trial Court is concerned,it is submitted that in the present case of circumstantial evidence, thefactum probandum or the primary fact stands established and havingregard to the common cause and natural events and to human conductDand their relations, the complete chain of circumstances indicating theguilt of the accused is established. Reliance is placed upon the decisionof this Court in the case of G. Parshwanath v. State of Karnataka,(2010) 8 SCC 593 (paragraphs 22 to 24).Heavy reliance is also placed on the recent decision of this CourtEin the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5SCC 436, paragraphs 30, 31. 31.1, 31.2, 31.3, 31.4 and 32 of the saiddecision. It is submitted that in the aforesaid decision, after consideringthe entire law on interference by the High Court with an order of acquittal,it is observed and held that once the appeal is entertained against theForder of acquittal, the High Court would be entitled to re-appreciate theentire evidence independently and come to its own conclusion. However,ordinarily, the High Court would give due importance to the opinion ofthe Sessions Judge if the same was arrived at after proper appreciationof the evidence. It is submitted that it is further observed that where theSessions Judge has absolutely made wrong assumption of very materialGand clinching aspect in the peculiar circumstances of the case and if theHigh Court is satisfied that the order of acquittal passed by the learnedtrial Court is perverse and suffers from infirmities, it is always open forthe High Court to interfere with the order of acquittal passed by thelearned trial Court.H

4.8 Making the above submissions and relying upon the aforesaiddecisions of this Court, it is prayed to dismiss the present appeal.

5. We have heard the learned counsel for the respective partiesat length. We have gone through in detail the judgment and order ofacquittal passed by the learned trial Court as well as the impugnedjudgment and order passed by the High Court interfering with the orderof acquittal passed by the learned trial Court and thereby convicting theaccused. We have also gone through the relevant evidences, both oralas well as documentary.

5.1 At the outset, it is required to be noted that this is case ofreversal of acquittal by the High Court in case of circumstantialevidence. Therefore, the first and foremost thing which is required to beconsidered is, whether in the facts and circumstances of the case, theHigh Court is justified in interfering with the order of acquittal passed bythe learned trial Court?

5.2 Before considering the appeal on merits, the law on the appealagainst acquittal and the scope and ambit of Section 378 Cr.P.C. and theinterference by the High Court in an appeal against acquittal is requiredto be considered.

5.2.1 In the case of Babu (supra), this Court had reiterated theprinciples to be followed in an appeal against acquittal under Section 378Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:

12. This Court time and again has laid down the guidelines for theHigh Court to interfere with the judgment and order of acquittalpassed by the trial court. The appellate court should not ordinarilyset aside judgment of acquittal in case where two views arepossible, though the view of the appellate court may be the moreprobable one. While dealing with judgment of acquittal, theappellate court has to consider the entire evidence on record, soas to arrive at finding as to whether the views of the trial courtwere perverse or otherwise unsustainable. The appellate court isentitled to consider whether in arriving at finding of fact, thetrial court had failed to take into consideration admissible evidenceand/or had taken into consideration the evidence brought on recordcontrary to law. Similarly, wrong placing of burden of proof mayalso be subject-matter of scrutiny by the appellate court. (VideBalak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir

v. State of Bihar (1990) 4 SCC 17,Shailendra Pratap v. Stateof U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P(2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulveluv. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. Stateof A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010)2 SCC 445)

13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, thePrivy Council observed as under: (IA p. 404)

“… the High Court should and will always give proper weight andconsideration to such matters as (1) the views of the trial Judgeas to the credibility of the witnesses; (2) the presumption ofinnocence in favour of the accused, presumption certainly notweakened 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) theslowness of an appellate court in disturbing finding of fact arrivedat by Judge who had the advantage of seeing the witnesses.”

14. The aforesaid principle of law has consistently been followedby this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1,Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G.Agarwal v. State of Maharashtra AIR 1963 SC 200, KheduMohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State ofM.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran(2007) 3 SCC 755)

15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,this Court reiterated the legal position as under: (SCC p. 432, para42)

“(1) An appellate court has full power to review, reappreciateand 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 an appellatecourt 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 compellingreasons’, ‘good and sufficient grounds’, ‘very strongcircumstances’, ‘distorted conclusions’, ‘glaring mistakes’, etc.are not intended to curtail extensive 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 innocence is available to him underthe fundamental principle of criminal jurisprudence that everyperson shall be presumed to be innocent unless he is proved guiltyby competent court of law. Secondly, the accused having securedhis 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 theevidence on record, the appellate court should not disturb the findingof acquittal recorded by the trial court.”

16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, thisCourt reiterated the said view, observing that the appellate courtin dealing with the cases in which the trial courts have acquittedthe accused, should bear in mind that the trial court’s acquittalbolsters the presumption that he is innocent. The appellate courtmust give due weight and consideration to the decision of the trialcourt as the trial court had the distinct advantage of watching thedemeanour of the witnesses, and was in better position toevaluate the credibility of the witnesses.

17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, theCourt again examined the earlier judgments of this Court and laiddown that: (SCC p. 374, para 20)

“20. … an order of acquittal should not be lightly interfered witheven if the court believes that there is some evidence pointing outthe finger towards the accused.”

18. In State of U.P. v. Banne (2009) 4 SCC 271, this Courtgave certain illustrative circumstances in which the Court would

Abe justified in interfering with judgment of acquittal by the HighCourt. The circumstances include: (SCC p. 286, para 28)

“(i) The High Court’s decision is based on totally erroneous viewof law by ignoring the settled legal position;

(ii) The High Court’s conclusions are contrary to evidence andBdocuments on record;

(iii) The entire approach of the High Court in dealing with theevidence was patently illegal leading to grave miscarriage of justice;

(iv) The High Court’s judgment is manifestly unjust andunreasonable based on erroneous law and facts on the record ofCthe case;

(v) This Court must always give proper weight and considerationto the findings of the High Court;

(vi) This Court would be extremely reluctant in interfering with aDcase when both the Sessions Court and the High Court haverecorded an order of acquittal.”

similar view has been reiterated by this Court in Dhanapal v.State (2009) 10 SCC 401.

19. Thus, the law on the issue can be summarised to the effectEthat in exceptional cases where there are compellingcircumstances, and the judgment under appeal is found to beperverse, the appellate court can interfere with the order ofacquittal. The appellate court should bear in mind the presumptionof innocence of the accused and further that the trial court’sFacquittal bolsters the presumption of his innocence. Interferencein routine manner where the other view is possible should beavoided, unless there are good reasons for interference.”

(emphasis supplied)

5.2.2 When the findings of fact recorded by court can be held toGbe perverse has been dealt with and considered in paragraph 20 of theaforesaid decision, which reads as under:

“20. The findings of fact recorded by court can be held to beperverse if the findings have been arrived at by ignoring orexcluding relevant material or by taking into consideration

irrelevant/inadmissible material. The finding may also be said tobe perverse if it is “against the weight of evidence”, or if thefinding so outrageously defies logic as to suffer from the vice ofirrationality. (Vide Rajinder Kumar Kindra v. Delhi Admn (1984)4 SCC 635, Excise and Taxation Officer-cum-AssessingAuthority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, TriveniRubber & Plastics v. CCE 1994 Supp. (3) SCC 665, GayaDin v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State(2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. Stateof A.P (2009) 10 SCC 636).”

(emphasis supplied)

5.2.3 It is further observed, after following the decision of thisCourt in the case of Kuldeep Singh v. Commissioner of Police (1999)2 SCC 10, that if decision is arrived at on the basis of no evidence orthoroughly unreliable evidence and no reasonable person would act uponit, the order would be perverse. But if there is some evidence on recordwhich is acceptable and which could be relied upon, the conclusionswould not be treated as perverse and the findings would not be interferedwith.

5.3 In the recent decision of Vijay Mohan Singh (supra), thisCourt again had an occasion to consider the scope of Section 378 Cr.P.C.and the interference by the High Court in an appeal against acquittal.This Court considered catena of decisions of this Court right from 1952onwards. In paragraph 31, it is observed and held as under:

“31. An identical question came to be considered before this Courtin Umedbhai Jadavbhai (1978) 1 SCC 228. In the case beforethis Court, the High Court interfered with the order of acquittalpassed by the learned trial court on re-appreciation of the entireevidence on record. However, the High Court, while reversingthe acquittal, did not consider the reasons given by the learnedtrial court while acquitting the accused. Confirming the judgmentof the High Court, this Court observed and held in para 10 asunder: (SCC p. 233)“10. Once the appeal was rightly entertained against the orderof acquittal, the High Court was entitled to reappreciate theentire evidence independently and come to its own conclusion.Ordinarily, the High Court would give due importance to the

opinion of the Sessions Judge if the same were arrived at afterproper appreciation of the evidence. This rule will not beapplicable in the present case where the Sessions Judge hasmade an absolutely wrong assumption of very material andclinching aspect in the peculiar circumstances of the case.”

31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, theHigh Court reversed the order of acquittal passed by the learnedtrial court and held the accused guilty on re-appreciation of theentire evidence on record, however, the High Court did not recordits conclusion on the question whether the approach of the trialcourt in dealing with the evidence was patently illegal or theconclusions arrived at by it were wholly untenable. Confirming

the order passed by the High Court convicting the accused onreversal of the acquittal passed by the learned trial court, afterbeing satisfied that the order of acquittal passed by the learnedtrial court was perverse and suffered from infirmities, this Courtdeclined to interfere with the order of conviction passed by theHigh Court. While confirming the order of conviction passed bythe High Court, this Court observed in para 8 as under: (SCC p.416)

“8. We have perused the judgment under appeal to ascertainwhether the High Court has conformed to the aforementionedprinciples. We find that the High Court has not strictly proceededin the manner laid down by this Court in Ramesh Babulal Doshiv. State of Gujarat (1996) 9 SCC 225 viz. first recording itsconclusion on the question whether the approach of the trialcourt in dealing with the evidence was patently illegal or theconclusions arrived at by it were wholly untenable, which alonewill justify interference in an order of acquittal though the HighCourt has rendered well-considered judgment duly meetingall the contentions raised before it. But then will this non-compliance per se justify setting aside the judgment underappeal? We think, not. In our view, in such case, the approachof the court which is considering the validity of the judgmentof an appellate court which has reversed the order of acquittalpassed by the trial court, should be to satisfy itself if theapproach of the trial court in dealing with the evidence waspatently illegal or conclusions arrived at by it are demonstrably

unsustainable and whether the judgment of the appellate courtis free from those infirmities; if so to hold that the trial courtjudgment warranted interference. In such case, there isobviously no reason why the appellate court’s judgment shouldbe disturbed. But if on the other hand the court comes to theconclusion that the judgment of the trial court does not sufferfrom any infirmity, it cannot but be held that the interferenceby the appellate court in the order of acquittal was not justified;then in such case the judgment of the appellate court has tobe set aside as of the two reasonable views, the one in supportof the acquittal alone has to stand. Having regard to the abovediscussion, we shall proceed to examine the judgment of thetrial court in this case.”31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999)3 SCC 309, after observing that though there is some substancein the grievance of the learned counsel appearing on behalf of theaccused that the High Court has not adverted to all the reasonsgiven by the trial Judge for according an order of acquittal, thisCourt refused to set aside the order of conviction passed by theHigh Court after having found that the approach of the SessionsJudge in recording the order of acquittal was not proper and theconclusion arrived at by the learned Sessions Judge on severalaspects was unsustainable. This Court further observed that asthe Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court,therefore, was fully entitled to reappreciate the evidence andrecord its own conclusion. This Court scrutinised the evidence ofthe eyewitnesses and opined that reasons adduced by the trialcourt for discarding the testimony of the eyewitnesses were notat all sound. This Court also observed that as the evaluation of theevidence made by the trial court was manifestly erroneous andtherefore it was the duty of the High Court to interfere with anorder of acquittal passed by the learned Sessions Judge.

31.3. In Atley v. State of U.P. AIR 1955 SC 807, in para 5, thisCourt observed and held as under: (AIR pp. 809-10)

“5. It has been argued by the learned counsel for the appellantthat the judgment of the trial court being one of acquittal, the HighCourt should not have set it aside on mere appreciation of the

evidence led on behalf of the prosecution unless it came to theconclusion that the judgment of the trial Judge was perverse. Inour opinion, it is not correct to say that unless the appellate courtin an appeal under Section 417 CrPC came to the conclusion thatthe judgment of acquittal under appeal was perverse it could notset aside that order.

It has been laid down by this Court that it is open to the HighCourt on an appeal against an order of acquittal to review theentire evidence and to come to its own conclusion, of course,keeping in view the well-established rule that the presumption ofinnocence of the accused is not weakened but strengthened bythe judgment of acquittal passed by the trial court which had theadvantage of observing the demeanour of witnesses whoseevidence have been recorded in its presence.

It is also well settled that the court of appeal has as wide powersof appreciation of evidence in an appeal against an order ofacquittal as in the case of an appeal against an order of conviction,subject to the riders that the presumption of innocence with whichthe accused person starts in the trial court continues even up tothe appellate stage and that the appellate court should attach dueweight to the opinion of the trial court which recorded the orderof acquittal.

If the appellate court reviews the evidence, keeping thoseprinciples in mind, and comes to contrary conclusion, the judgmentcannot be said to have been vitiated. (See in this connection thevery cases cited at the Bar, namely, Surajpal Singh v. State AIR1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122)In our opinion, there is no substance in the contention raised onbehalf of the appellant that the High Court was not justified inreviewing the entire evidence and coming to its own conclusions.

31.4. In K. Gopal Reddy v. State of A.P. (1979) 1 SCC 355,this Court has observed that where the trial court allows itself tobe beset with fanciful doubts, rejects creditworthy evidence forslender reasons and takes view of the evidence which is butbarely possible, it is the obvious duty of the High Court to interferein the interest of justice, lest the administration of justice be broughtto ridicule.”

(emphasis supplied)

5.4 It is also required to be noted and it is not in dispute that this isa case of circumstantial evidence. As held by this Court in catena ofdecisions that in case of circumstantial evidence, the circumstances,taken cumulatively, should form chain so complete that there is noescape from the conclusion that within all human probability the crimewas committed by the accused and none else and the circumstantialevidence in order to sustain conviction must be complete and incapableof explanation of any other hypothesis than that of the guilt of the accusedand such evidence should not only be consistent with the guilt of theaccused but should be inconsistent with his innocence. In the case ofBabu (supra), it is observed and held in paragraphs 22 to 24 as under:

“22. In Krishnan v. State (2008) 15 SCC 430, this Court afterconsidering large number of its earlier judgments observed asfollows: (SCC p. 435, para 15)

“15. … This Court in series of decisions has consistently heldthat when case rests upon circumstantial evidence, suchevidence must satisfy the following tests:

(i) the circumstances from which an inference of guilt is soughtto be drawn, must be cogently and firmly established;

(ii) those circumstances should be of definite tendency unerringlypointing towards guilt of the accused;

(iii) the circumstances, taken cumulatively, should form chainso complete that there is no escape from the conclusion that withinall human probability the crime was committed by the accusedand none else; and

(iv) the circumstantial evidence in order to sustain conviction mustbe complete and incapable of explanation of any other hypothesisthan that of the guilt of the accused and such evidence should notonly be consistent with the guilt of the accused but should beinconsistent with his innocence. (See Gambhir v. State ofMaharashtra (1982) 2 SCC 351)”

23. In Sharad Birdhichand Sarda v. State of Maharashtra(1984) 4 SCC 116 while dealing with circumstantial evidence, ithas been held that the onus was on the prosecution to prove thatthe chain is complete and the infirmity or lacuna in prosecutioncannot be cured by false defence or plea. The conditions precedent

Abefore conviction could be based on circumstantial evidence, mustbe fully established. They are: (SCC p. 185, para 153)

(i) the circumstances from which the conclusion of guilt is to bedrawn should be fully established. The circumstances concerned“must” or “should” and not “may be” established;

(ii) the facts so established should be consistent only with thehypothesis of the guilt of the accused, that is to say, they shouldnot be explainable on any other hypothesis except that the accusedis guilty;

(iii) the circumstances should be of conclusive nature andCtendency;

(iv) they should exclude every possible hypothesis except the oneto be proved; and

(v) there must be chain of evidence so complete as not to leaveDany reasonable ground for the conclusion consistent with theinnocence of the accused and must show that in all humanprobability the act must have been done by the accused.

similar view has been reiterated by this Court in State of U.P.v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttaranchal(2009) 15 SCC 259.

24. In Subramaniam v. State of T.N (2009) 14 SCC 415, whileconsidering the case of dowry death, this Court observed that thefact of living together is strong circumstance but that by alone inabsence of any evidence of violence on the deceased cannot beheld to be conclusive proof, and there must be some evidence toFarrive at conclusion that the husband and husband alone wasresponsible therefor. The evidence produced by the prosecutionshould not be of such nature that may make the conviction ofthe appellant unsustainable. (See Ramesh Bhai v. State ofRajasthan (2009) 12 SCC 603).”

(emphasis supplied)

5.5 Even in the case of G. Parshwanath (supra), this Court hasin paragraphs 23 and 24 observed as under:

“23. In cases where evidence is of circumstantial nature, theHcircumstances from which the conclusion of guilt is to be drawn

should, in the first instance, be fully established. Each fact soughtto be relied upon must be proved individually. However, in applyingthis principle distinction must be made between facts calledprimary or basic on the one hand and inference of facts to bedrawn from them on the other. In regard to proof of primary facts,the court has to judge the evidence and decide whether thatevidence proves particular fact and if that fact is proved, thequestion whether that fact leads to an inference of guilt of theaccused person should be considered. In dealing with this aspectof the problem, the doctrine of benefit of doubt applies. Althoughthere should not be any missing links in the case, yet it is notessential that each of the links must appear on the surface of theevidence adduced and some of these links may have to be inferredfrom the proved facts. In drawing these inferences, the courtmust have regard to the common course of natural events and tohuman conduct and their relations to the facts of the particularcase. The court thereafter has to consider the effect of provedfacts.

24. In deciding the sufficiency of the circumstantial evidence forthe purpose of conviction, the court has to consider the totalcumulative effect of all the proved facts, each one of whichreinforces the conclusion of guilt and if the combined effect of allthese facts taken together is conclusive in establishing the guilt ofthe accused, the conviction would be justified even though it maybe that one or more of these facts by itself or themselves is/arenot decisive. The facts established should be consistent only withthe hypothesis of the guilt of the accused and should exclude everyhypothesis except the one sought to be proved. But this does notmean that before the prosecution can succeed in case restingupon circumstantial evidence alone,it must exclude each and everyhypothesis suggested by the accused, howsoever, extravagant andfanciful it might be. There must be chain of evidence so completeas not to leave any reasonable ground for the conclusion consistentwith the innocence of the accused and must show that in all humanprobability the act must have been done by the accused, wherevarious links in chain are in themselves complete, then the falseplea or false defence may be called into aid only to lend assuranceto the court.”

A6. Applying the law laid down by this Court in the aforesaiddecisions to the facts of the case on hand, it is to be considered, whetherin the facts and circumstances of the case, the High Court is justified ininterfering with the order of acquittal passed by the learned trial Court?

6.1 In the present case, the prosecution as well as the High CourtBconsidered the recovery of photographs; recovery of mobile phonebelonging to PW7, recovery of the knife and rope at the instance of theaccused and on alleged disclosure statements of the accused on 9.9.2010.The prosecution also relied upon the recovery of jeep in which thephotographs of the accused were found. The prosecution also reliedupon the disclosure statement of the accused Anwar Ali with respect toCrecovery of crates and for the aforesaid prosecution heavily relied uponthe testimony of PW5, PW6 and PW7. However, it is required to benoted that on appreciation of the entire evidence on record, the trialCourt found material contradictions in the deposition of the witnesses ofdisclosure statements and the recovery of the knife and rope on 9.9.2010Dand thereby did not believe the recovery of knife, rope, crates on thebasis of the disclosure statements made by the accused and that toorecovered on 9.9.2020. However, the High Court without giving anycogent reasons has interfered with the findings of fact recorded by thelearned trial Court solely by observing that those contradictions wereminor contradictions and therefore the learned trial Court was not justifiedEin acquitting the accused solely on the basis of such minor contradictions.However, on considering the entire evidence on record, we are in completeagreement with the view taken by the learned trial Court. Thecontradictions which came to be considered by the learned trial Courtcannot be said to be minor contradictions. In the present case, accordingFto the prosecution and PW18-IO, on the basis of disclosure statementsmade by the accused on 8.9.2010, the knife and rope were recovered on9.9.2010. However, PW4 and PW5 have categorically stated in theirdeposition that the police brought the sniffer dogs on 2.9.2010 and thesniffer dogs recovered rope, knife etc. on 2.9.2010. So, according to

even PW4 and PW5, the rope and knife were recovered on 2.9.2010Gwith the help of sniffer dogs. However, neither in the FIR there was amention of recovery of knife and rope on 2.9.2010 with the help ofsniffer dogs nor the IO in his examination-in-chief has stated so. It isrequired to be noted that the accused were arrested on 8.9.2010 andprior thereto on 2.9.2010 the investigating officer visited the spot fromHwhere the knife and rope was recovered on 2.9.2010. In cross-

examination, the IO admitted that he visited the spot from where theknife was recovered with sniffer dogs on 2.9.2010. He has also admittedin the cross-examination that this fact has not been mentioned in the FIRor in the statement of any witness. Thus, the prosecution and the IOsuppressed the material facts. Even in the cross-examination, the IOhas stated that the sniffer dog had done nothing on the spot. In thecross-examination, he has also specifically stated that “it is incorrect tosuggest that the sniffer dog had traced the strings Ex. P52, knife Ex.P59 and vest Ex. P54. However, PW4 and PW5 in their deposition havecategorically stated that the knife and rope were recovered on 2.9.2010.The aforesaid cannot be said to be minor contradictions. Therefore, thetrial Court was justified in not believing the disclosure statements of theaccused and the recovery of the knife, rope etc. on 9.9.2010 as allegedby the prosecution. From evidence, it emerges that the knife, rope andvest were recovered on 2.9.2010 i.e., much prior to 8.9.2010 when theaccused were arrested.7. Even the recovery of jeep from Chandigarh and recovery ofphotographs and the recovery of mobile phone belonging to PW7 fromthe jeep also create serious doubts. According to the prosecution andthe IO, he received secret information that one jeep is lying in abandonedcondition on the Chandigarh road and though the distance was around300 kilo meters, he straightway went to Chandigarh and recovered thejeep in the presence of Bhunter people brought by him. The InvestigatingOfficer did not follow the procedure as required to be followed underSection 166 (3 & 4), Cr.P.C. Even he did not comply with the provisionsof Section 100 (4) Cr.P.C. Non-following of the aforesaid provisionsalone may not be ground to acquit the accused. However, consideringthe overall surrounding circumstances and in case where recovery isseriously doubted, non-compliance of the aforesaid play an importantrole.

8. Even the recovery of the mobile phone from the jeep belongingto PW7 also creates doubt. Though, PW7 has stated that his mobile wasstolen or cheated, he never filed any complaint earlier. Even the IO hasnot tried to have the call details of the mobile. He has not tried to verifyfrom the call details the conversation to or from the mobile.

Even the disclosure statement of the accused with respect to cratesbeing sold to PW6 is concerned, it is required to be noted that in thepresent case the so-called disclosure statement is found to be suspicious

Aand doubtful. Cogent reasons have been given by the learned trial Courtfor the same.

9. Now so far as the submission on behalf of the accused that inthe present case the prosecution has failed to establish and prove themotive and therefore the accused deserves acquittal is concerned, it isBtrue that the absence of proving the motive cannot be ground to rejectthe prosecution case. It is also true and as held by this Court in the caseof Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80that if motive is proved that would supply link in the chain ofcircumstantial evidence but the absence thereof cannot be ground toreject the prosecution case. However, at the same time, as observed byCthis Court in the case of Babu (supra), absence of motive in casedepending on circumstantial evidence is factor that weighs in favourof the accused. In paragraphs 25 and 26, it is observed and held asunder:

“25. In State of U.P. v. Kishanpal (2008) 16 SCC 73, this CourtDexamined the importance of motive in cases of circumstantialevidence and observed: (SCC pp. 87-88, paras 38-39)

“38. … the motive is thing which is primarily known to theaccused themselves and it is not possible for the prosecutionto explain what actually promoted or excited them to commitEthe particular crime.

39. The motive may be considered as circumstance which isrelevant for assessing the evidence but if the evidence is clearand unambiguous and the circumstances prove the guilt of theaccused, the same is not weakened even if the motive is not aFvery strong one. It is also settled law that the motive loses all itsimportance in case where direct evidence of eyewitnesses isavailable, because even if there may be very strong motive forthe accused persons to commit particular crime, they cannot beconvicted if the evidence of eyewitnesses is not convincing. InGthe same way, even if there may not be an apparent motive but ifthe evidence of the eyewitnesses is clear and reliable, the absenceor inadequacy of motive cannot stand in the way of conviction.”

26. This Court has also held that the absence of motive in casedepending on circumstantial evidence is factor that weighs in

favour of the accused. (Vide Pannayar v. State of T.N (2009) 9SCC 152).”

(emphasis supplied)

10. Considering the aforesaid facts and circumstances of the case,the findings recorded by the learned trial Court, which were based onappreciation of the entire evidence on record cannot be said to be eitherperverse or contrary to the evidence on record and/or it cannot be saidthat the trial Court did not consider any material evidence on record.Trial Court was justified in recording the acquittal by observing thatprosecution has failed to complete the entire chain of events. Therefore,we are of the opinion that in the facts and circumstances of the case, theHigh Court is not justified in reversing the order of acquittal passed bythe learned trial Court. Under the circumstances, the impugned judgmentand order passed by the High Court cannot be sustained and the samedeserves to be quashed and set aside.

11. In view of the above and for the reasons stated above, thepresent appeal succeeds. The impugned judgment and order dated20.09.2016 passed by the High Court of Himachal Pradesh in CriminalAppeal No. 464 of 2012 is hereby quashed and set aside, and the judgmentand order dated 15.06.2012 passed by the learned Additional SessionsJudge, Fast Track Court, Kullu, Himachal Pradesh in Sessions Trial No.05 of 2011 is hereby restored. The accused-Appellants, namely, AnwarAli son of Gama Ali and Sharif Mohammad son of Sampat Mohammadbe set at liberty forthwith, if not required in any other case.

Kalpana K. Tripathy

Appeal allowed.