JAFARUDHEEN & ORS. versus STATE OF KERALA

JAFARUDHEEN & ORS.

STATE OF KERALA

(Criminal Appeal Nos. 430-431 of 2015)

APRIL 22, 2022

[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]

Code of Criminal Procedure, 1973: s.378: Appeal againstacquittal – Scope of – Appellate Court has to consider whethertrial court’s view can be termed as possible one, particularly whenevidence on record has been analyzed – An order of acquittal addsup to the presumption of innocence in favour of the accused –Double presumption that enures in favour of the accused has to bedisturbed only by thorough scrutiny on the accepted legalparameters – Thus, appellate court has to be relatively slow inreversing the order of trial court rendering acquittal.

Criminal Law: FIR: Delay in sending FIR to Magistrate –FIR starts the process of investigation by setting criminal law intomotion – Investigation officer has to keep the magistrate in the loopof his ongoing investigation – Such an information is expected toreach the jurisdictional magistrate at the earliest point of time –Delay introduces coloured version, exaggerated account orconcocted story as result of deliberation and consultation –However, mere delay by itself cannot be sole factor in rejectingthe prosecution’s case.

Code of Criminal Procedure, 1973: s.161–InvestigatingOfficer is expected to kick start his investigation immediately afterregistration of cognizable offense – An inordinate and unexplaineddelay may be fatal to the prosecution’s case but only to be consideredby the Court, on the facts of each case – However, non-examinationof the witness despite being available may call for an explanationfrom the Investigating Officer.

Evidence Act: s.27: Fact discovered – Onus – Admissibilityunder s.27 is relatable to the information pertaining to fact

Adiscovered – It facilitates proof of fact discovered in consequenceof information received from person in custody, accused of anoffense – The onus is on the prosecution to prove the fact discoveredfrom the information obtained from the accused – One cannot losesight of the fact that the prosecution may at times take advantage ofthe custody of the accused, by other means – The Court will have toBbe conscious of the witness’s credibility and the other evidenceproduced when dealing with recovery under s.27 of the EvidenceAct.

Criminal Law – In the instant case, accused, 16 in numbers,Cassembled, hatched conspiracy and thereafter attacked deceasedto take out his life – Trial Court convicted A-2, A-4, A-5, A-8, andA-9 under IPC and acquitted A-10 to A-16 by considering theevidences on record – High Court confirmed the order of acquittalagainst A-14 to A-16 and confirmed the conviction against the otheraccused, namely, A-2, A-4, A-5, A-8, and A-9, but it overturned theDorder of acquittal of A-10, A-11, A-12, and A-13 granted by trialcourt on the premise that the witnesses who spoke about theseaccused’s presence failed to consider the import of s.149 IPC – Onappeal, held: Trial court has taken possible view that the evidencerendered by the eyewitnesses does not satisfy the Court qua theEpresence of A-10 to A-13 – As trial court had the advantage ofseeing the witnesses as they deposed, the appellate forum cannotchange the conclusion arrived at thereafter by substituting its views– High Court has adopted the principle of preponderance ofprobability as could be applicable to the civil cases to the case onhand when more scrutiny is warranted for reversing an order ofFacquittal – For the recovery made from A-12 also, there was noconfirmation from prosecution witnesses – The blood-stained dresswas stated to have been recovered from A-13 from the hospital – Itis not known as to how the said dress reached the hospital, andthere was no evidence forthcoming on that count, apart fromGcorrelating the said dress to that of the accused – There seemed tobe structured pattern in the recovery of A-10 to A-13 – Convictionrendered by High Court against A-10 to A-13 stands set aside –Acquittal by trial court restored.

Disposing of the appeals, the Court

HELD: 1. While dealing with an appeal against acquittal byinvoking Section 378 of the Cr.PC, the Appellate Court has toconsider whether the Trial Court’s view can be termed as apossible one, particularly when evidence on record has beenanalyzed. The reason is that an order of acquittal adds up to thepresumption of innocence in favour of the accused. Thus, theAppellate Court has to be relatively slow in reversing the orderof the Trial Court rendering acquittal. Therefore, the presumptionin favour of the accused does not get weakened but onlystrengthened. Such double presumption that enures in favourof the accused has to be disturbed only by thorough scrutiny onthe accepted legal parameters. [Para 25][733-E-F]

Mohan @ Srinivas @ Seena @Tailor Seena v. State ofKarnataka2021 SCC OnLine SC 1233;N.Vijayakumar v. State of T.N. (2021) 3 SCC 687 – reliedon.

2. The jurisdictional Magistrate plays pivotal role duringthe investigation process. It is meant to make the investigationjust and fair. The Investigating Officer is to keep the Magistratein the loop of his ongoing investigation. The object is to avoid apossible foul play. The Magistrate has role to play under Section159 of Cr.PC. The first information report in criminal case startsthe process of investigation by letting the criminal law into motion.It is certainly vital and valuable aspect of evidence to corroboratethe oral evidence. Therefore, it is imperative that such aninformation is expected to reach the jurisdictional Magistrate atthe earliest point of time to avoid any possible ante-dating orante-timing leading to the insertion of materials meant to convictthe accused contrary to the truth and on account of such delaymay also not only gets bereft of the advantage of spontaneity,there is also danger creeping in by the introduction of colouredversion, exaggerated account or concocted story as result ofdeliberation and consultation. However, mere delay by itselfcannot be sole factor in rejecting the prosecution’s case arrivedat after due investigation. Ultimately, it is for the Court concerned

Ato take call. Such view is expected to be taken after consideringthe relevant materials. [Paras 26, 27][744-C-F]

Shivlal v. State of Chhattisgarh (2011) 9 SCC 561 :[2011] 11 SCR 429; Rajeevan v. State of Kerala [(2003)3 SCC 355; State of Rajasthan v. Om Prakash (2002) 5BSCC 745 : [2002] 3 SCR 753 - relied on.

3. The Investigating Officer is expected to kick start hisinvestigation immediately after registration of cognizableoffense. An inordinate and unexplained delay may be fatal to theprosecution’s case but only to be considered by the Court, onCthe facts of each case. There may be adequate circumstances fornot examining witness at an appropriate time. However, non-examination of the witness despite being available may call foran explanation from the Investigating Officer. It only causes doubtin the mind of the Court, which is required to be cleared. Similarly,a statement recorded, as in the present case, the investigationDreport is expected to be sent to the jurisdictional Magistrate atthe earliest. long, unexplained delay, would give room forsuspicion. [Paras 28, 29][748-F-H]

Shahid Khan v. State of Rajasthan (2016) 4 SCC 96 :[2016] 2 SCR 284; Ganesh Bhavan Patel v. State ofEMaharashtra (1978) 4 SCC 371 : [1979] 2 SCR 94 –relied on.

4. Section 27 of the Evidence Act is an exception to Sections24 to 26. Admissibility under Section 27 is relatable to theinformation pertaining to fact discovered. This provision merelyFfacilitates proof of fact discovered in consequence of informationreceived from person in custody, accused of an offense. Thus,it incorporates the theory of “confirmation by subsequent facts”facilitating link to the chain of events. It is for the prosecutionto prove that the information received from the accused isGrelatable to the fact discovered. The object is to utilize it for thepurpose of recovery as it ultimately touches upon the issuepertaining to the discovery of new fact through the informationfurnished by the accused. Therefore, Section 27 is an exception

to Sections 24 to 26 meant for specific purpose and thus beconstrued as proviso. The onus is on the prosecution to provethe fact discovered from the information obtained from theaccused. This is also for the reason that the information has beenobtained while the accused is still in the custody of the police.Having understood the aforesaid object behind the provision,any recovery under Section 27 will have to satisfy the Court’sconscience. One cannot lose sight of the fact that the prosecutionmay at times take advantage of the custody of the accused, byother means. The Court will have to be conscious of the witness’scredibility and the other evidence produced when dealing with arecovery under Section 27 of the Evidence Act. [Paras 30,31][750-G-H; 751-A-C]

Kusal Toppo v. State of Jharkhand (2019) 13 SCC 676;Navaneethakrishnan v. State (2018) 16 SCC 161: [2018]6 SCR 749; H.P. Admn. v. Om Prakash (1972) 1 SCC249: [1972] 2 SCR 765; Aghnoo Nagesia v. State ofBihar [1966] 1 SCR 134; K. Chinnaswamy Reddy v.State of A.P. [1963] 3 SCR 412 – relied on.

Case Law Reference

ACRIMINAL APPELLATE JURISDICTION: Criminal AppealNos. 430-431 of 2015.

From the Judgment and Order dated 21.10.2014 of the High Courtof Kerala at Ernakulam in Crl. A. No.1417 of 2011 and Crl. R.P. No.1931of 2011.BWith

Criminal Appeal Nos. 450-451 and 959 of 2015.

Basant R. Sr. Adv., Ramesh Babu M. R., Abdul Latheef M. P.,Vishnu Pazhanganat, Akshay Sahay, Manu Krishnan, Advs. for theAppellants.C

P. V. Surendranath, Sr. Adv., Nishe Rajen Shonker, Mrs. Anu K.Joy, Alim Anvar, Sawan Kumar Shukla, Subhash Chandran K. R., MukeshKumar Pandey, Harshad V. Hameed, Advs. for the Respondent.

The Judgment of the Court was delivered by

DM. M. SUNDRESH, J.

1. Convictions confirmed and acquittals reversed at the hands ofthe Division Bench of the High Court of Kerela are under challengebefore us. The accused, who got their acquittal confirmed, stand asfreemen with no further challenge. Appropriately, our common judgmentEdisposes of these appeals emanating from the same occurrence.

BRIEF FACTS:

2. The deceased and the accused belong to two different politicalparties – one affiliated to CPI (M) and the other NDF (NationalDevelopment Front). There was an altercation between the affiliatedFpolitical members of CPI (M) and NDF on 17.07.2002 at about 4:00p.m. with the deceased and P.W.8 as the CPI(M) members, and A-3and A-10 as that of NDF. In the altercation the deceased had reportedlyassaulted A-3.

3. Seeking to avenge, the accused, being 16 in numbers, assembledGat the family house of A-5 on the same day (i.e.17.07.2002) at about7:00 p.m. and hatched conspiracy to take out the life of the deceased.In pursuance to the aforesaid decision, A-1 to A-13 went to the residenceof the deceased on 18.07.2002 at about 9:30 p.m. in three material objects,namely, - (i) an auto-rickshaw, (ii) motorbike, and (iii) jeep, armedHwith deadly weapons like swords, knives, chopper, etc. While four of

them (A-7, A-10, A-12, and A-13) waited outside, the others (A-1 to A-6, A-8, A-9, and A-11) barged in and indiscriminately attacked thedeceased. In the process, they also exploded country bombs on twooccasions.

4. The occurrence was witnessed by P.W.1, the author of theFirst Information Report – Ext. P-1 and others. For the occurrence,which took place at about 9.30 p.m. on 18.07.2002, the registration ofFIR/complaint was done in Crime No. 237/2002 at about 11.00 p.m.against six named accused and other identifiable ones for the offencespunishable under Sections 143, 147, 148, 427, 452, 302 read with 149 ofthe Indian Penal Code (for short ‘IPC’) and Section 3 of the ExplosivesSubstances Act. The registered complaint reached the jurisdictionalMagistrate at about 4.15 p.m. the next day.

5. P.W.64 took up the investigation, and accordingly arrested theaccused, A-10, A-12 and A-13 on 31.07.2002. Thereafter, recoverieswere made pursuant to their arrest. A-11 surrendered before the JudicialFirst Class Magistrate, Punalur, on 05.08.2002. Recoveries have beenmade from A-10, A-12 and A-13 on 01.08.2002. From A-11, recoverieswere made on 13.08.2002.

6. On completion of the investigation, charge sheet was laidagainst 16 accused. Charges were framed against A2, A-4, A-5, A-8, A-9 to A-16 for the offences punishable under Sections 120-B, 143, 147,148, 427, 460, 302 read with 149 IPC and Sections 3 and 5 of theExplosives Substances Act. As A-1, A-3, A-6 and A-7 were absconding,the case against them got split up.

7. The prosecution examined 66 witnesses in total while markingExt. P-1 to P-97. On behalf of the defence, particularly A-8 & A-9, onewitness was examined as DW-1, while Ext. D-1 to D-18 were marked.The material objects 1 to 54 were exhibited and identified before theCourt.

8. The learned Additional District and Sessions Judge, Court I,Kollam, while acquitting A-10 to A-16, convicted the others for thefollowing offences:

•A-2, A-4, A-5, A-8, A-9 – U/s 302 r/w 149 IPC andsentenced to life imprisonment

•A-2, A-4, A-5, A-8, A-9 – U/s 147 r/w 149 IPC for 1 yearS.I. and fine of Rs.5000

A•A-2, A-4, A-5, A-8, A-9 – U/s 148, 149 IPC for 2 years S.I.and fine of Rs.10,000

•A-2, A-4, A-5, A-8, A-9 – U/s 460 IPC for 3 years R.I. andfine of Rs.15,000

•A-4 – U/s 427 IPC for 6 months S.I. and fine of Rs.5,000

9. Appeals and revisions were filed by both the prosecution andthe de facto complainant, on the one hand, and the convicted accused,on the other. The High Court of Kerala upheld the conviction and thesentence imposed upon A-2, A-4, A-5, A-8, and A-9 for offences underSections 460, 148, 302 read with 149 IPC and further convicted themCunder Section 427 IPC and Section 3 of the Explosives Substances Act.The appeal filed by the State against the order of acquittal in favour ofA-14 to A-16 was dismissed, while it was accordingly allowed byoverturning the acquittal qua A-10 to A-13. As the legal battle againstA-14 to A-16 attained finality, the convicted accused have filed theseDappeals.

EVIDENCE BEFORE THE COURT

10. P.W.1 is the relative of the deceased who had seen theoccurrence from inside the house, hiding behind the chairs. All the accusedare known to him. He attributed specific overt acts against few accusedEand identified few of them. However, this witness could not identifyA-11, not even named in Ext. P-1, i.e. first information report, despitebeing known person. Similarly, he does not identify A-10.

11. P.W.2 is the father of the deceased, who also took coverprotecting himself by staying in nearby room. Despite being an eye-Fwitness and knowing the accused, he wrongly identified A-10 as A-5.P.W.2 also does not identify A-11 and A-12.

12. P.W.3 is the maid-servant working at the residence of thedeceased at the relevant point of time. She also wrongly identified A-4as A-10, notwithstanding her claim that she knew him prior to theGoccurrence. This witness did not say anything about the presence of A-11, A-12 and A-13, though she speaks of the other accused, as deposedby P.W.1 and P.W.2. Both these witnesses do not make any referenceto A-13.

13. P.W.4 is the neighbour of the deceased, having witnessed theHoccurrence from outside. He identified A-10 and A-12 by deposing that

they were standing on the south-western corner of the house. However,he did not speak of A-11 and A-13.

14. P.W.21 is the employee (worker) in the ASR Theatre,Thadikkad situated nearer to the deceased’s house. He had seen theoccurrence from the theatre. He identified A-10, having seen him nearthe vicinity of the deceased’s house. His statement under Section 161 ofthe Code of Criminal Procedure (for short ‘Cr.PC’) was recorded ninedays after the incident. Incidentally, the blood-stained clothes of A-10were recovered from his house, he being not party to the recoverymahazar. He also similarly identified A-11 and A-12. He attributes thespecific overt act against A-13 of throwing bomb. Though he statesthat he saw the occurrence along with C.W.22, the said person was notexamined.

15. P.W.46 saw the incident while returning home. He heard thegunshot and attributes overt act as against A-10, A-12 and A-13. Hisstatement was also recorded only on 20.07.2002. He wrongly identifiedA-10 as A-7 while unable to identify A-12. He has not expressed anythingabout A-11.

16. The doctor who has been examined as P.W.15 has issuedExt. P-45 – the post-mortem certificate which, on perusal, indicatesabout 30 ante-mortem injuries, of which the majority of them are incised.

17. A-8 and A-9 got injuries and took treatment in the hospital.The injuries were found to be incised and thus contrary to the statementmade by them to P.W.45, corroborated with the entry of Accident Registerof Medical Trust Hospital. The cause of the injury, as informed by A-8and A-9, was that they sustained the injury when the lorry tyre fell uponthem by accident when they tried to replace it with another. But, in hisevidence, P.W. 45 has stated that it is unlikely, and the injury could onlybe due to sharp-edged hard object.

TRIAL COURT

18. The Trial Court rendered its judgment as aforesaid byundertaking thorough analysis through laborious process. It took intoconsideration each and every aspect of evidence before rendering itsdecision. Perhaps, the only exercise not done was with respect to therecovery qua A-10 to A-13, particularly on the evidentiary value.

A19. It found that A-2, A-4, A-5, A-8, and A-9 have clinchingevidence staring at them. The evidence of eye-witnesses, as well asthat of experts, was taken into account. The contentions regarding thedelay in sending Ext.P-1 – first information report and the injuries sufferedby A-8 and A-9 were duly considered. These two accused took thesame plea under Section 313 Cr.PC questioning, denying their existenceBat the place of occurrence. The case projected by the defense that thewitnesses are either set up by the prosecution or interested in securingthe conviction was not accepted by giving adequate reasoning. Afterconcluding that there is insufficient evidence to support the chargeattracting Section 120B of the IPC, A-14 to A-16 were acquitted.

20. It acquitted A-10 to A-13 based on the inconsistencies in eye-witness statements. Two material objects, motorbike and an auto-rickshaw were found unrelated to the occurrence of the event or theevidentiary value of the accused. As such, it granted acquittal to A-10to A-13. The reasoning of the Trial Court is elucidated hereunder:D “….Though PW1 would depose that accused Nos. 1 to 6

“….Though PW1 would depose that accused Nos. 1 to 6and 8 to 10 get down from the vehicle parked on the road he didnot say that A13 was among them. He did not depose that A13exploded Bomb. From the deposition of PW1 it is brought out thatA 1 to A9 and 11 entered into hall room first and inflicted injuriesand on getting the cut injury of A4 on the left cheek Ashrar felldown. Before getting injury of A4 Ashraf suffered cut injury withsword on his right leg. Thereafter A7, A10, A12 entered into thehall room inflicted cut injuries on various parts· of. the person ofAshraf. Ext. A45 and the deposition of PW58 proved thatcorresponding injuries found on the dead body of Ashraf. ThoughPW1 could depose the names of A1 to A12 he could not identifyA 1, A3, A6, A7 and 10, 11, he could identify A2, A4, A5, ASand A9. His evidence shows that A11 did not inflict any injury onAshraf. PW2 also stated the name of the assailants came insidethe house and caused injury on the person of Ashraf. ThoughPW2 stated the names of A2, A4, A5, AS, A9, 11 he couldidentify only AS andA9. No overt act stated by PW2 against 11and on analyzing the evidence of PW2 it is seen that A11 wasarmed with sword and it was catched by Ashraf and attacked theassailants. Thus PW2 has identified accused 8 and 9 only. Theevidence of PWs 1 and 2 and PW58 and Ex. P45 proved that theversion of PWs 1 and 2 is credible probable to believe. The victim

sustained 20 incised wounds, on the right side of vertex, right eyebrow, left cheek and also on various parts of his body. The evidenceof PW58 and Ext. P45 corroborate the testimony of PWs 1 and2. The other witnesses especially .PW4, PW7, PW21 and PW32and PW46 have deposed about the incident they have seen outsidethe house. Since I have discussed in the earlier paragraphs notreproducing. PW4 identified A4, A8, A9, A10 and A12. As perthe evidence he saw A4 took A8 and A9 through the kitchen dooron the southern side of the house. 10 and 12 were in front ofthe house of Ashraf. No overt act stated. PW7 through hostilewitness his evidence shows that A4 was driving jeep towards thehouse of Ashraf and A5 was in the jeep. According to him he wasrelation with A5. There is no evidence to corroborate his testimonythat A11 has driven motor cycle towards the house of Ashraf.PW21 though narrated the presence of accused NOs.2,4,5,8,9,11 and 13 he says that 4 accused has broken the glasses of motorcycle and car. He also stated that A4 took A8 and A9 in front ofthe house were A11 and 13 were present. No overt act statedagainst 11. He could identify A2, A4, A5, A8 and A9, stated thatA13 Kochansar exploded bomb. As per the prosecution recordsno accused named Kochansar. The name of A13 is Ansarudheen.The prosecution failed to prove that A13 Ansarudheen is alsoknown as Kochansar. Therefore the evidence of PW21, PW32and PW46 that A13 exploded bomb at the yard of the house cannotbe believed. The prosecution could not prove that impact ofExplosion at the yard or nearby place. Hence it cannot be heldthat the accused are guilty of offence U/s 3 and 5 ExplosiveSubstance Act. The above witnesses not properly identified A13.The above prosecution witnesses properly identified A2, A4, A5,A8 and A9. The prosecution evidence proved that the accusedNos. 2,4,5,8 and 9 formed an unlawful assembly at the yard of thehouse committed rioting and trespassed in to the house of Ashrafby break opening the front door with the intention to commit themurder of Ashraf. The prosecution not succeeded to prove theoffence alleged against the accused NOs, A10, A11 and A12.The prosecution has not succeeded to prove that the accusedwere formed conspiracy at the house of A5 and taken decision tocommit the murder of Ashraf. None of the accused are guilty ofoffence U/s 120B.”

AHIGH COURT

21. The High Court confirmed the order of acquittal against A-14to A-16 and confirmed the conviction against the other accused, namely,A-2, A-4, A-5, A-8, and A-9. However, it overturned the order of acquittalof A-10, A-11, A-12, and A-13 granted by the Trial Court on the premiseBthat the witnesses who spoke about these accused’s presence failed toconsider the import of Section 149 IPC. These minor discrepancies oughtto have been ignored, and the prosecution case is supported by bothrecoveries and medical, forensic, and scientific evidence.

SUBMISSIONS

22. Counsel appearing for A-2, A-4, A-5, A-8, and A-9 contendedthat the first information report registered as Ext. P-1 is an after-thought,created subsequently and thus ante-dated. There is no proper explanationfor referring the jeep with the registration number, which is one of thematerial objects recovered under Ext.P-1, when P.W.1 states that heDcame to know about it only the next day of the occurrence. Though Ext.P-1 was sent after its registration at about 11.00 p.m., it did reach thejurisdictional Magistrate only at about 4.15 p.m. the next day. This delayhas not been examined properly. The witnesses are either interested orchance and, therefore, the courts ought to have rejected their testimonies.They are not only the members of the deceased’s family but also membersEof particular party. The injuries suffered by A-8 and A-9 have not beenconsidered in the correct perspective.23. Mr. R. Basant, learned senior counsel appearing for A-10 toA-13, has taken us through the law governing the cases pertaining toappeals filed against orders of acquittal as there is an enlarged presumptionFof innocence. The High Court has committed jurisdictional error inreversing the well-merited judgment of the Trial Court by replacing itsviews with that of the Trial Court. What is required to be seen is whetherthe view of the Trial Court is possible one. The High Court hascommitted an error in placing reliance upon recoveries. It did not go intothe manner in which the recoveries have been made. Section 149 IPCGthough being substantive offence, is to be proved in the manner knownto law. There must be proof of common object. When the witnessesare not able to identify the accused, the testimonies rendered wouldbecome highly doubtful. The learned senior counsel took us through thelaw laid down by this Court in Mohan @ Srinivas @ Seena @TailorHSeena v. State of Karnataka, 2021 SCC OnLine SC 1233, wherein it

was held that when after due examination and review of evidence, theTrial Court has passed an order of acquittal, the exercise of the powerof the High Court as imposed by the code must be with circumspect.

SUBMISSIONS ON BEHALF OF THE STATE

24. It is submitted that in the absence of any apparent illegality,the concurrent decisions rendered by the courts do not warrant anyinterference. Both the Courts below considered all the evidence, eye-witnesses, material objects and recoveries while also taking into accountthe scientific evidence. The motive has also been proved through theprior occurrence. The High Court rightly considered the recoveries madealong with the oral evidence. It has given its reasons for reversing theorder of acquittal passed by the Trial Court. The Trial Court did not evenconsider the evidentiary value of the recoveries. There is no need forany interference in such case, particularly when the contentions raisedwere noted. On the issue qua the mentioning of the number of the vehiclein the FIR, it is submitted that it has not been placed before the Courtand, in any case, the conviction was rendered based on the materialsavailable on record.

DISCUSSION

Scope of Appeal filed against the Acquittal:

25. While dealing with an appeal against acquittal by invokingSection 378 of the Cr.PC, the Appellate Court has to consider whetherthe Trial Court’s view can be termed as possible one, particularly whenevidence on record has been analyzed. The reason is that an order ofacquittal adds up to the presumption of innocence in favour of theaccused. Thus, the Appellate Court has to be relatively slow in reversingthe order of the Trial Court rendering acquittal. Therefore, the presumptionin favour of the accused does not get weakened but only strengthened.Such double presumption that enures in favour of the accused has tobe disturbed only by thorough scrutiny on the accepted legal parameters.

Precedents:

• Mohan @Srinivas @Seena @Tailor Seena v. State ofKarnataka, [2021 SCC OnLine SC 1233] as hereunder: –

“20. Section 378 CrPC enables the State to prefer an appealagainst an order of acquittal. Section 384 CrPC speaks ofthe powers that can be exercised by the Appellate Court.

When the trial court renders its decision by acquitting theaccused, presumption of innocence gathers strength beforethe Appellate Court. As consequence, the onus on theprosecution becomes more burdensome as there is doublepresumption of innocence. Certainly, the Court of firstinstance has its own advantages in delivering its verdict,which is to see the witnesses in person while they depose.The Appellate Court is expected to involve itself in deeper,studied scrutiny of not only the evidence before it, but isduty bound to satisfy itself whether the decision of the trialcourt is both possible and plausible view. When two viewsare possible, the one taken by the trial court in case ofacquittal is to be followed on the touchstone of liberty alongwith the advantage of having seen the witnesses. Article21 of the Constitution of India also aids the accused afteracquittal in certain way, though not absolute. Suffice it isto state that the Appellate Court shall remind itself of therole required to play, while dealing with case of an acquittal.

21. Every case has its own journey towards the truth and itis the Court’s role undertake. Truth has to be found on thebasis of evidence available before it. There is no room forsubjectivity nor the nature of offence affects itsperformance. We have hierarchy of courts in dealing withcases. An Appellate Court shall not expect the trial court toact in particular way depending upon the sensitivity of thecase. Rather it should be appreciated if trial court decidesa case on its own merit despite its sensitivity.

22. At times, courts do have their constraints. We find,different decisions being made by different courts, namely,trial court on the one hand and the Appellate Courts on theother. If such decisions are made due to institutionalconstraints, they do not augur well. The district judiciary isexpected to be the foundational court, and therefore, shouldhave the freedom of mind to decide case on its own meritor else it might become stereotyped one renderingconviction on moral platform. Indictment andcondemnation over decision rendered, on considering allthe materials placed before it, should be avoided. The

Appellate Court is expected to maintain degree of cautionbefore making any remark.

23. This court, time and again has laid down the law on thescope of inquiry by an Appellate court while dealing withan appeal against acquittal under Section 378 CrPC. Wedo not wish to multiply the aforesaid principle except placingreliance on recent decision of this court in AnwarAli v. State of Himanchal Pradesh, (2020) 10 SCC 166:

14.2. When can the findings of fact recorded by courtbe held to be perverse has been dealt with andconsidered in paragraph 20 of the aforesaid decision,which reads as under : (Babu case [Babu v. State ofKerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179])

“20. The findings of fact recorded by court can beheld to be perverse if the findings have been arrivedat by ignoring or excluding relevant material or bytaking into consideration irrelevant/inadmissiblematerial. The finding may also be said to be perverseif it is “against the weight of evidence”, or if thefinding so outrageously defies logic as to suffer fromthe vice of irrationality. (Vide Rajinder KumarKindra v. Delhi Admn. [Rajinder Kumar Kindra v.Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S)131], Excise & Taxation Officer-cum-AssessingAuthority v. Gopi Nath & Sons [Excise & TaxationOfficer-cum-Assessing Authority v. Gopi Nath &Sons, 1992 Supp (2) SCC 312], Triveni Rubber &Plastics v. CCE [Triveni Rubber & Plastics v. CCE,1994 Supp (3) SCC 665], Gaya Din v. HanumanPrasad [Gaya Din v. Hanuman Prasad, (2001) 1SCC 501], Aruvelu [Arulvelu v. State, (2009) 10 SCC206 : (2010) 1 SCC (Cri) 288] and Gamini BalaKoteswara Rao v. State of A.P. [Gamini BalaKoteswara Rao v. State of A.P., (2009) 10 SCC 636 :(2010) 1 SCC (Cri) 372] )”

It is further observed, after following the decision ofthis Court in Kuldeep Singh v. Commr. of Police

[Kuldeep Singh v. Commr. of Police, (1999) 2 SCC10 : 1999 SCC (L&S) 429], that if decision is arrivedat on the basis of no evidence or thoroughly unreliableevidence and no reasonable person would act upon it,the order would be perverse. But if there is someevidence on record which is acceptable and which couldbe relied upon, the conclusions would not be treated asperverse and the findings would not be interfered with.

14.3. In the recent decision of Vijay MohanSingh [Vijay Mohan Singh v. State of Karnataka, (2019)5 SCC 436 : (2019) 2 SCC (Cri) 586], this Court againhad an occasion to consider the scope of Section378 CrPC and the interference by the High Court [Stateof Karnataka v. Vijay Mohan Singh, 2013 SCC OnLineKar 10732] in an appeal against acquittal. This Courtconsidered catena of decisions of this Court right from1952 onwards. In para 31, it is observed and held asunder:

“31. An identical question came to be consideredbefore this Court in Umedbhai Jadavbhai [UmedbhaiJadavbhai v. State of Gujarat, (1978) 1 SCC228 : 1978 SCC (Cri) 108]. In the case before thisCourt, the High Court interfered with the order ofacquittal passed by the learned trial court onreappreciation of the entire evidence on record.However, the High Court, while reversing theacquittal, did not consider the reasons given by thelearned trial court while acquitting the accused.Confirming the judgment of the High Court, this Courtobserved and held in para 10 as under:

‘10. Once the appeal was rightly entertainedagainst the order of acquittal, the High Court wasentitled to reappreciate the entire evidenceindependently and come to its own conclusion.Ordinarily, the High Court would give dueimportance to the opinion of the Sessions Judge ifthe same were arrived at after proper appreciationof the evidence. This rule will not be applicable in

the present case where the Sessions Judge hasmade an absolutely wrong assumption of verymaterial and clinching aspect in the peculiarcircumstances of the case.’

31.1. In Sambasivan [Sambasivan v. State ofKerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320],the High Court reversed the order of acquittal passedby the learned trial court and held the accused guiltyon reappreciation of the entire evidence on record,however, the High Court did not record its conclusionon the question whether the approach of the trial courtin dealing with the evidence was patently illegal orthe conclusions arrived at by it were wholly untenable.Confirming the order passed by the High Courtconvicting the accused on reversal of the acquittalpassed by the learned trial court, after being satisfiedthat the order of acquittal passed by the learned trialcourt was perverse and suffered from infirmities, thisCourt declined to interfere with the order ofconviction passed by the High Court. Whileconfirming the order of conviction passed by the HighCourt, this Court observed in para 8 as under:

‘8. We have perused the judgment under appealto ascertain whether the High Court hasconformed to the aforementioned principles. Wefind that the High Court has not strictly proceededin the manner laid down by this Court in Doshicase [Ramesh Babulal Doshi v. State ofGujarat, (1996) 9 SCC 225 : 1996 SCC (Cri) 972]viz. first recording its conclusion on the questionwhether the approach of the trial court in dealingwith the evidence was patently illegal or theconclusions arrived at by it were wholly untenable,which alone will justify interference in an orderof acquittal though the High Court has rendereda well-considered judgment duly meeting all thecontentions raised before it. But then will thisnon-compliance per se justify setting aside the

judgment under appeal? We think, not. In our view,in such case, the approach of the court which isconsidering the validity of the judgment of anappellate court which has reversed the order ofacquittal passed by the trial court, should be tosatisfy itself if the approach of the trial court indealing with the evidence was patently illegal orconclusions arrived at by it are demonstrablyunsustainable and whether the judgment of theappellate court is free from those infirmities; if soto hold that the trial court judgment warrantedinterference. In such case, there is obviouslyno reason why the appellate court’s judgmentshould be disturbed. But if on the other hand thecourt comes to the conclusion that the judgmentof the trial court does not suffer from any infirmity,it cannot but be held that the interference by theappellate court in the order of acquittal was notjustified; then in such case the judgment of theappellate court has to be set aside as of the tworeasonable views, the one in support of theacquittal alone has to stand. Having regard to theabove discussion, we shall proceed to examinethe judgment of the trial court in this case.’

31.2. In K. Ramakrishnan Unnithan [K.Ramakrishnan Unnithan v. State of Kerala, (1999)3 SCC 309: 1999 SCC (Cri) 410], after observingthat though there is some substance in the grievanceof the learned counsel appearing on behalf of theaccused that the High Court has not adverted to allthe reasons given by the trial Judge for according anorder of acquittal, this Court refused to set aside theorder of conviction passed by the High Court afterhaving found that the approach of the Sessions Judgein recording the order of acquittal was not properand the conclusion arrived at by the learned SessionsJudge on several aspects was unsustainable. ThisCourt further observed that as the Sessions Judgewas not justified in discarding the relevant/materialevidence while acquitting the accused, the High Court,therefore, was fully entitled to reappreciate theevidence and record its own conclusion. This Courtscrutinised the evidence of the eyewitnesses andopined that reasons adduced by the trial court fordiscarding the testimony of the eyewitnesses werenot at all sound. This Court also observed that as theevaluation of the evidence made by the trial courtwas manifestly erroneous and therefore it was theduty of the High Court to interfere with an order ofacquittal passed by the learned Sessions Judge.

31.3. In Atley [Atley v. State of U.P., AIR 1955 SC807 : 1955 Cri LJ 1653], in para 5, this Court observedand held as under:

‘5. It has been argued by the learned counsel forthe appellant that the judgment of the trial courtbeing one of acquittal, the High Court should nothave set it aside on mere appreciation of theevidence led on behalf of the prosecution unlessit came to the conclusion that the judgment of thetrial Judge was perverse. In our opinion, it is notcorrect to say that unless the appellate court inan appeal under Section 417 CrPC came to theconclusion that the judgment of acquittal underappeal was perverse it could not set aside thatorder.

It has been laid down by this Court that it is opento the High Court on an appeal against an orderof acquittal to review the entire evidence and tocome to its own conclusion, of course, keeping inview the well-established rule that the presumptionof innocence of the accused is not weakened butstrengthened by the judgment of acquittal passedby the trial court which had the advantage ofobserving the demeanour of witnesses whoseevidence have been recorded in its presence.

It is also well settled that the court of appeal hasas wide powers of appreciation of evidence in an

appeal against an order of acquittal as in the caseof an appeal against an order of conviction, subjectto the riders that the presumption of innocencewith which the accused person starts in the trialcourt continues even up to the appellate stage andthat the appellate court should attach due weightto the opinion of the trial court which recordedthe order of acquittal.

If the appellate court reviews the evidence,keeping those principles in mind, and comes to acontrary conclusion, the judgment cannot be saidto have been vitiated. (See in this connection thevery cases cited at the Bar, namely, SurajpalSingh v. State [Surajpal Singh v. State, 1951SCC 1207 : AIR 1952 SC 52]; WilayatKhan v. State of U.P. [Wilayat Khan v. State ofU.P., 1951 SCC 898 : AIR 1953 SC 122]) In ouropinion, there is no substance in the contentionraised on behalf of the appellant that the HighCourt was not justified in reviewing the entireevidence and coming to its own conclusions.’

31.4. In K. Gopal Reddy [K. Gopal Reddy v. Stateof A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305],this Court has observed that where the trial courtallows itself to be beset with fanciful doubts, rejectscreditworthy evidence for slender reasons and takesa view of the evidence which is but barely possible,it is the obvious duty of the High Court to interfere inthe interest of justice, lest the administration of justicebe brought to ridicule.”

•N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] ashereunder: –

“20. Mainly it is contended by Shri Nagamuthu, learnedSenior Counsel appearing for the appellant that the viewtaken by the trial court is “possible view”, having regardto the evidence on record. It is submitted that the trial courthas recorded cogent and valid reasons in support of its

findings for acquittal. Under Section 378 CrPC, nodifferentiation is made between an appeal against acquittaland the appeal against conviction. By considering the longline of earlier cases this Court in the judgmentin Chandrappa v. State of Karnataka, (2007) 4 SCC 415: (2007) 2 SCC (Cri) 325 has laid down the general principlesregarding the powers of the appellate Court while dealingwith an appeal against an order of acquittal. Para 42 of thejudgment which is relevant reads as under: (SCC p. 432)

“42. From the above decisions, in our considered view,the following general principles regarding powers of theappellate court while dealing with an appeal against anorder of acquittal emerge:

(1) An appellate court has full power to review,reappreciate and reconsider the evidence upon whichthe order of acquittal is founded.

(2) The Code of Criminal Procedure, 1973 puts nolimitation, restriction or condition on exercise of suchpower and an appellate court on the evidence before itmay reach its own conclusion, both on questions of factand of law.

(3) Various expressions, such as, “substantial andcompelling reasons”, “good and sufficient grounds”,“very strong circumstances”, “distorted conclusions”,“glaring mistakes”, etc. are not intended to curtailextensive powers of an appellate court in an appealagainst acquittal. Such phraseologies are more in thenature of “flourishes of language” to emphasise thereluctance of an appellate court to interfere with acquittalthan to curtail the power of the court to review theevidence and to come to its own conclusion.

(4) An appellate court, however, must bear in mind thatin case of acquittal, there is double presumption in favourof the accused. Firstly, the presumption of innocence isavailable to him under the fundamental principle ofcriminal jurisprudence that every person shall bepresumed to be innocent unless he is proved guilty by

competent court of law. Secondly, the accused havingsecured his acquittal, the presumption of his innocenceis further reinforced, reaffirmed and strengthened bythe trial court.

(5) If two reasonable conclusions are possible on thebasis of the evidence on record, the appellate courtshould not disturb the finding of acquittal recorded bythe trial court.”

21. Further in the judgment in Murugesan [Murugesan v.State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] relied onby the learned Senior Counsel for the appellant, this Courthas considered the powers of the High Court in an appealagainst acquittal recorded by the trial court. In the saidjudgment, it is categorically held by this Court that only incases where conclusion recorded by the trial court is not apossible view, then only the High Court can interfere andreverse the acquittal to that of conviction. In the saidjudgment, distinction from that of “possible view” to“erroneous view” or “wrong view” is explained. In clearterms, this Court has held that if the view taken by the trialcourt is “possible view”, the High Court not to reversethe acquittal to that of the conviction.

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23. Further, in Hakeem Khan v. State of M.P., (2017) 5SCC 719 : (2017) 2 SCC (Cri) 653 this court has consideredthe powers of the appellate court for interference in caseswhere acquittal is recorded by the trial court. In the saidjudgment it is held that if the “possible view” of the trialcourt is not agreeable for the High Court, even then such“possible view” recorded by the trial court cannot beinterdicted. It is further held that so long as the view of thetrial court can be reasonably formed, regardless of whetherthe High Court agrees with the same or not, verdict of thetrial court cannot be interdicted and the High Court cannotsupplant over the view of the trial court. Para 9 of thejudgment reads as under: (SCC pp. 722-23)

“9. Having heard the learned counsel for the parties, weare of the view that the trial court’s judgment is more

than just possible view for arriving at the conclusionof acquittal, and that it would not be safe to convictseventeen persons accused of the crime of murder i.e.under Section 302 read with Section 149 of the PenalCode. The most important reason of the trial court, ashas been stated above, was that, given the time of 6.30p.m. to 7.00 p.m. of winter evening, it would be dark,and, therefore, identification of seventeen persons wouldbe extremely difficult. This reason, coupled with the factthat the only independent witness turned hostile, and twoother eyewitnesses who were independent were notexamined, would certainly create large hole in theprosecution story. Apart from this, the very fact thatthere were injuries on three of the accused party, twoof them being deep injuries in the skull, would lead tothe conclusion that nothing was premeditated and therewas, in all probability, scuffle that led to injuries onboth sides. While the learned counsel for the respondentmay be right in stating that the trial court went overboardin stating that the complainant party was the aggressor,but the trial court’s ultimate conclusion leading to anacquittal is certainly possible view on the facts of thiscase. This is coupled with the fact that the presence ofthe kingpin Sarpanch is itself doubtful in view of thefact that he attended the Court at some distance andarrived by bus after the incident took place.”

24. By applying the abovesaid principles and the evidenceon record in the case on hand, we are of the consideredview that having regard to material contradictions whichwe have already noticed above and also as referred to inthe trial court judgment, it can be said that acquittal is a“possible view”. By applying the ratio as laid down by thisCourt in the judgments which are stated supra, evenassuming another view is possible, same is no ground tointerfere with the judgment of acquittal and to convict theappellant for the offence alleged. From the evidence, it isclear that when the Inspecting Officer and other witnesseswho are examined on behalf of the prosecution, went tothe office of the appellant-accused, the appellant was not

Athere in the office and office was open and people weremoving out and in from the office of the appellant. It is alsoclear from the evidence of PWs 3, 5 and 11 that the currencyand cellphone were taken out from the drawer of the tableby the appellant at their instance. There is also no reason,when the tainted notes and the cellphone were given to theBappellant at 5.45 p.m. no recordings were made and theappellant was not tested by PW 11 till 7.00 p.m.”

Delay in sending the (FIR) First Information Report to theMagistrate:

26. The jurisdictional Magistrate plays pivotal role during theinvestigation process. It is meant to make the investigation just and fair.The Investigating Officer is to keep the Magistrate in the loop of hisongoing investigation. The object is to avoid possible foul play. TheMagistrate has role to play under Section 159 of Cr.PC.

D27. The first information report in criminal case starts the processof investigation by letting the criminal law into motion. It is certainly avital and valuable aspect of evidence to corroborate the oral evidence.Therefore, it is imperative that such an information is expected to reachthe jurisdictional Magistrate at the earliest point of time to avoid anypossible ante-dating or ante-timing leading to the insertion of materialsEmeant to convict the accused contrary to the truth and on account ofsuch delay may also not only gets bereft of the advantage of spontaneity,there is also danger creeping in by the introduction of coloured version,exaggerated account or concocted story as result of deliberation andconsultation. However, mere delay by itself cannot be sole factor inFrejecting the prosecution’s case arrived at after due investigation.Ultimately, it is for the Court concerned to take call. Such view isexpected to be taken after considering the relevant materials.

Precedents:

•Shivlal v. State of Chhattisgarh, [(2011) 9 SCC 561] asGhereunder :-

“18. This Court in Bhajan Singh v. State of Haryana,(2011) 7 SCC 421 : (2011) 3 SCC (Cri) 241 has elaboratelydealt with the issue of sending the copy of the FIR to theIlaqa Magistrate with delay and after placing reliance upona large number of judgments including Shiv Ram v. State

of U.P., (1998) 1 SCC 149 : 1998 SCC (Cri) 278 : AIR1998 SC 49 and Arun Kumar Sharma v. State of Bihar,(2010) 1 SCC 108 : (2010) 1 SCC (Cri) 472 came to theconclusion that CrPC provides for internal and externalchecks: one of them being the receipt of copy of the FIRby the Magistrate concerned. It serves the purpose thatthe FIR be not ante-timed or ante-dated. The Magistratemust be immediately informed of every serious offence sothat he may be in position to act under Section 159 CrPC,if so required. The object of the statutory provision is tokeep the Magistrate informed of the investigation so as toenable him to control the investigation and, if necessary, togive appropriate direction. However, it is not that as if everydelay in sending the report to the Magistrate wouldnecessarily lead to the inference that the FIR has not beenlodged at the time stated or has been ante-timed or ante-dated or the investigation is not fair and forthright. In agiven case, there may be an explanation for delay. Anunexplained inordinate delay in sending the copy of the FIRto the Ilaqa Magistrate may affect the prosecution caseadversely. However, such an adverse inference may bedrawn on the basis of attending circumstances involved ina case.”

•Rajeevan v. State of Kerala, [(2003) 3 SCC 355]ashereunder: –

“12. Another doubtful factor is the delayed lodging of FIR.The learned counsel for the appellants highlights this factor.Here it is worthwhile to refer Thulia Kali v. State ofT.N. [(1972) 3 SCC 393 : 1972 SCC (Cri) 543] wherein thedelayed filing of FIR and its consequences are discussed.At para 12 this Court says: (SCC p. 397)

“First information report in criminal case is an extremelyvital and valuable piece of evidence for the purpose ofcorroborating the oral evidence adduced at the trial. Theimportance of the above report can hardly beoverestimated from the standpoint of the accused. Theobject of insisting upon prompt lodging of the report tothe police in respect of commission of an offence is to

obtain early information regarding the circumstances inwhich the crime was committed, the names of the actualculprits and the part played by them as well as the namesof eyewitnesses present at the scene of occurrence. Delayin lodging the first information report quite often results inembellishment which is creature of afterthought. Onaccount of delay, the report not only gets bereft of theadvantage of spontaneity, danger creeps in of theintroduction of coloured version, exaggerated accountor concocted story as result of deliberation andconsultation. It is, therefore, essential that the delay inlodging of the first information report should besatisfactorily explained.”

(emphasis supplied)

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14. As feared by the learned counsel for the appellants,the possibility of subsequent implication of the appellantsas result of afterthought, maybe due to political bitterness,cannot be ruled out. This fact is further buttressed by thedelayed placing of FIR before the Magistrate, non-satisfactory explanation given by the police officer regardingthe blank sheets in Ext. P-30, counterfoil of the FIR andalso by the closely written bottom part of Ext. P-1,statement by PW 1. All these factual circumstances readwith the aforementioned decisions of this Court lead to theconclusion that it is not safe to rely upon the FIR in theinstant case. The delay of 12 hours in filing FIR in the instantcase irrespective of the fact that the police station is situatedonly at distance of 100 metres from the spot of incident isanother factor sufficient to doubt the genuineness of theFIR. Moreover, the prosecution did not satisfactorily explainthe delayed lodging of the FIR with the Magistrate.

15. This Court in Marudanal Augusti v. State of Kerala,(1980) 4 SCC 425 : 1980 SCC (Cri) 985 while deciding acase which involves question of delayed dispatch of theFIR to the Magistrate, cautioned that such delay wouldthrow serious doubt on the prosecution case, whereas

in Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372: 1994 SCC (Cri) 1551 it was reminded by this Court that:(SCC p. 382, para 24)

“[T]he forwarding of the occurrence report isindispensable and absolute and it has to be forwardedwith earliest dispatch which intention is implicit with theuse of the word ‘forthwith’ occurring in Section 157CrPC, which means promptly and without any unduedelay. The purpose and object is very obvious which isspelt out from the combined reading of Sections 157and 159 CrPC. It has the dual purpose, firstly to avoidthe possibility of improvement in the prosecution storyand introduction of any distorted version by deliberationsand consultation and secondly to enable the Magistrateconcerned to have watch on the progress of theinvestigation.”

•State of Rajasthan v. Om Prakash, [(2002) 5 SCC 745]as hereunder: –

“9. There was delay of nearly 26 hours in lodging the FIR.The offence is alleged to have taken place at about 9 a.m.The FIR was registered at about 11.30 a.m. on the nextday. It was contended by Mr Bachawat, learned counselfor the respondent, that this delay had assumed importanceand was fatal particularly when the brother of theprosecutrix, namely, [REDACTED] (PW 6) was admittedly atthe house. The delay, according to the counsel, has resultedin embellishments. Reliance has been placed on the decisionin the case of Thulia Kali v. State of T.N. [(1972) 3 SCC393 : 1972 SCC (Cri) 543 : AIR 1973 SC 501] holding thatthe first information report in criminal case is an extremelyvital and valuable piece of evidence for the purpose ofcorroborating the oral evidence adduced at the trial. Theobject of insisting upon prompt lodging of the report to thepolice in respect of commission of an offence is to obtainearly information regarding the circumstances in which thecrime was committed, the names of the actual culprits andthe part played by them as well as the names of eye-witnesses present at the scene of occurrence. Delay in

lodging the first information report quite often results inembellishment which is creature of an afterthought. Onaccount of delay, the report not only gets bereft of theadvantage of spontaneity, danger creeps in of theintroduction of coloured version, exaggerated account orconcocted story as result of deliberation and consultation.There can be no dispute about these principles relied uponby Mr Bachawat but the real question in the present caseis about the explanation for the delay. It is not at all unnaturalfor the family members to await the arrival of the elders inthe family when an offence of this nature is committedbefore taking decision to lodge report with the police.The reputation and prestige of the family and the careerand life of young child is involved in such cases. Therefore,the presence of the brother of the prosecutrix at home isnot of much consequence. It has been established that thefather of the girl along with his brother came back to theirhouse at 7 o’clock in the evening. The girl was unconsciousduring the day. PW 2 told her husband as to what hadhappened to their daughter. The police station was at adistance of 15 km. According to the testimony of PW 1 nomode of conveyance was available. The police was reportedto the next day morning and FIR was recorded at 11.30a.m. The delay in reporting the matter to the police hasthus been fully explained.”

Delay in Recording the Statement under Section 161 Cr.PC:

28. The Investigating Officer is expected to kick start hisFinvestigation immediately after registration of cognizable offense. Aninordinate and unexplained delay may be fatal to the prosecution’s casebut only to be considered by the Court, on the facts of each case. Theremay be adequate circumstances for not examining witness at anappropriate time. However, non-examination of the witness despite beingGavailable may call for an explanation from the Investigating Officer. Itonly causes doubt in the mind of the Court, which is required to becleared.

29. Similarly, statement recorded, as in the present case, theinvestigation report is expected to be sent to the jurisdictional MagistrateHat the earliest. long, unexplained delay, would give room for suspicion.

Precedents:

•Shahid Khan v. State of Rajasthan, [(2016) 4 SCC 96]as hereunder: –

“20. The statements of PW 25 Mirza Majid Beg and PW24 Mohamed Shakir were recorded after 3 days of theoccurrence. No explanation is forthcoming as to why theywere not examined for 3 days. It is also not known as tohow the police came to know that these witnesses saw theoccurrence. The delay in recording the statements casts aserious doubt about their being eyewitnesses to theoccurrence. It may suggest that the investigating officerwas deliberately marking time with view to decide aboutthe shape to be given to the case and the eyewitnesses tobe introduced. The circumstances in this case lend suchsignificance to this delay. PW 25 Mirza Majid Beg and PW24 Mohamed Shakir, in view of their unexplained silenceand delayed statement to the police, do not appear to us tobe wholly reliable witnesses. There is no corroboration oftheir evidence from any other independent source either.We find it rather unsafe to rely upon their evidence only touphold the conviction and sentence of the appellants. TheHigh Court has failed to advert to the contentions raised bythe appellants and reappreciate the evidence therebyresulting in miscarriage of justice. In our opinion, the caseagainst the appellants has not been proved beyondreasonable doubt.”

•Ganesh Bhavan Patel v. State of Maharashtra, [(1978)4 SCC 371] as hereunder: –

“15. As noted by the trial Court, one unusual feature whichprojects its shadow on the evidence of PWs Welji, Pramilaand Kuvarbai and casts serious doubt about their beingeyewitnesses of the occurrence, is the undue delay on thepart of the investigating officer in recording their statements.Although these witnesses were or could be available forexamination when the investigating officer visited the sceneof occurrence or soon thereafter, their statements underSection 161, Cr.P.C. were recorded on the following day.

Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or9.30 a.m., and Kuvarbai at 1 p.m. Delay of few hours,simpliciter, in recording the statements of eyewitnesses maynot, be itself, amount to serious infirmity in the prosecutioncase. But it may assume such character if there areconcomitant circumstances to suggest that the investigatorwas deliberately marking time with view to decide aboutthe shape to be given to the case and the eyewitnesses tobe introduced. catena of circumstances which lend suchsignificance to this delay, exists in the instant case.

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29. Thus considered in the light of the surroundingcircumstances, this inordinate delay in registration of the‘F.I.R.’ and further delay in recording the statements ofthe material witnesses, casts cloud of suspicion on thecredibility of the entire warp and woof of the prosecutionstory.

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47. All the infirmities and flaws pointed out by the trial Courtassumed importance, when considered in the light of theall-pervading circumstance that there was inordinate delayin recording Ravji’s statement (on the basis of which the“F.I.R.” was registered) and further delay in recording thestatements of Welji, Pramila and Kuvarbai. Thiscircumstance, looming large in the back-ground, inevitablyleads to the conclusion, that the prosecution story wasconceived and constructed after good deal of deliberationand delay in shady setting, highly redolent of doubt andsuspicion.”

Recovery under Section 27 of the Evidence Act:

30. Section 27 of the Evidence Act is an exception to Sections 24Gto 26. Admissibility under Section 27 is relatable to the informationpertaining to fact discovered. This provision merely facilitates proof ofa fact discovered in consequence of information received from personin custody, accused of an offense. Thus, it incorporates the theory of“confirmation by subsequent facts” facilitating link to the chain ofHevents. It is for the prosecution to prove that the information received

from the accused is relatable to the fact discovered. The object is toutilize it for the purpose of recovery as it ultimately touches upon theissue pertaining to the discovery of new fact through the informationfurnished by the accused. Therefore, Section 27 is an exception toSections 24 to 26 meant for specific purpose and thus be construed asa proviso.

31. The onus is on the prosecution to prove the fact discoveredfrom the information obtained from the accused. This is also for thereason that the information has been obtained while the accused is stillin the custody of the police. Having understood the aforesaid objectbehind the provision, any recovery under Section 27 will have to satisfythe Court’s conscience. One cannot lose sight of the fact that theprosecution may at times take advantage of the custody of the accused,by other means. The Court will have to be conscious of the witness’scredibility and the other evidence produced when dealing with recoveryunder Section 27 of the Evidence Act.

Precedents:

•Kusal Toppo v. State of Jharkhand,[(2019) 13 SCC 676]as hereunder: –

“25. The law under Section 27 of the Evidence Act is wellsettled now, wherein this Court in GeejagandaSomaiah v. State of Karnataka, (2007) 9 SCC 315 : (2007)3 SCC (Cri) 135 has observed as under : (SCC p. 324, para22)

“22. As the section is alleged to be frequently misused bythe police, the courts are required to be vigilant about itsapplication. The court must ensure the credibility of evidenceby police because this provision is vulnerable to abuse. Itdoes not, however, mean that any statement made in termsof the aforesaid section should be seen with suspicion andit cannot be discarded only on the ground that it was madeto police officer during investigation. The court has to becautious that no effort is made by the prosecution to makeout statement of the accused with simple case ofrecovery as case of discovery of fact in order to attractthe provisions of Section 27 of the Evidence Act.”

26. The basic premise of Section 27 is to only partially liftthe ban against admissibility of inculpatory statements madebefore the police, if fact is actually discovered inconsequence of the information received from the accused.Such condition would afford some guarantee. We mayadditionally note that, the courts need to be vigilant whileconsidering such evidence.

27. This Court in multiple cases has reiterated the aforesaidprinciples under Section 27 of the Evidence Act and onlyutilised Section 27 for limited aspect concerning recovery(refer Pulukuri Kotayya v. King Emperor, 1946 SCCOnLine PC 47 : (1946-47) 74 IA 65; Jaffar HussainDastagir v. State of Maharashtra, (1969) 2 SCC 872 :AIR 1970 SC 1934). As an additional safeguard we maynote that reliance on certain observations made in certainprecedents of this Court without understanding thebackground of the case may not be sustainable. There isno gainsaying that it is only the ratio which has theprecedential value and the same may not be extended toan obiter. As this Court being the final forum for appeal,we need to be cognizant of the fact that this Court generallyconsiders only legal aspects relevant to the facts andcircumstances of that case, without elaborately discussingthe minute hyper-technicalities and factual intricaciesinvolved in the trial.”

Navaneethakrishnan v. State, [(2018) 16 SCC 161] ashereunder: –

“23. The learned counsel for the appellant-accusedcontended that the statements given by the appellant-accused are previous statements made before the policeand cannot be therefore relied upon by both the appellant-accused as well as the prosecution. In this view of the matter,it is pertinent to mention here the following decision of thisCourt in Selvi v. State of Karnataka, (2010) 7 SCC 263 :(2010) 3 SCC (Cri) 1 wherein it was held as under : (SCCpp. 334-35, paras 133 & 134)

“133. We have already referred to the language of Section161 CrPC which protects the accused as well as suspects

and witnesses who are examined during the course ofinvestigation in criminal case. It would also be useful torefer to Sections 162, 163 and 164 CrPC which lay downprocedural safeguards in respect of statements made bypersons during the course of investigation. However, Section27 of the Evidence Act incorporates the “theory ofconfirmation by subsequent facts” i.e. statements made incustody are admissible to the extent that they can be provedby the subsequent discovery of facts. It is quite possiblethat the content of the custodial statements could directlylead to the subsequent discovery of relevant facts ratherthan their discovery through independent means. Hence suchstatements could also be described as those which “furnisha link in the chain of evidence” needed for successfulprosecution…..”

•H.P. Admn. v. Om Prakash, [(1972) 1 SCC 249] ashereunder:–

“8…We are not unaware that Section 27 of the EvidenceAct which makes the information given by the accused whilein custody leading to the discovery of fact and the factadmissible, is liable to be abused and for that reason greatcaution has to be exercised in resisting any attempt tocircumvent, by manipulation or ingenuity of the InvestigatingOfficer, the protection afforded by Section 25 and Section26 of the Evidence Act. While considering the evidencerelating to the recovery we shall have to exercise that cautionand care which is necessary to lend assurance that theinformation furnished and the fact discovered is credible.”

•Aghnoo Nagesia v. State of Bihar, [(1966) 1 SCR 134]as hereunder: –

“9. Section 25 of the Evidence Act is one of the provisionsof law dealing with confessions made by an accused. Thelaw relating to confessions is to be found generally inSections 24 to 30 of the Evidence Act and Sections 162and 164 of the Code of Criminal Procedure, 1898. Sections17 to 31 of the Evidence Act are to be found under theheading “Admissions”. Confession is species of

admission, and is dealt with in Sections 24 to 30. confessionor an admission is evidence against the maker of it, unlessits admissibility is excluded by some provision of law. Section24 excludes confessions caused by certain inducements,threats and promises. Section 25 provides: “No confessionmade to police officer, shall be proved as against personaccused of an offence”. The terms of Section 25 areimperative. confession made to police officer underany circumstances is not admissible in evidence against theaccused. It covers confession made when he was freeand not in police custody, as also confession made beforeany investigation has begun. The expression “accused ofany offence” covers person accused of an offence at thetrial whether or not he was accused of the offence whenhe made the confession. Section 26 prohibits proof againstany person of confession made by him in the custody of apolice officer, unless it is made in the immediate presenceof Magistrate. The partial ban imposed by Section 26relates to confession made to person other than policeofficer. Section 26 does not qualify the absolute ban imposedby Section 25 on confession made to police officer.Section 27 is in the form of proviso, and partially lifts theban imposed by Sections 24, 25 and 26. It provides thatwhen any fact is deposed to as discovered in consequenceof information received from person accused of anyoffence, in the custody of police officer, so much of suchinformation, whether it amounts to confession or not, asrelates distinctly to the fact thereby discovered, may beproved. Section 162 of the Code of Criminal Procedureforbids the use of any statement made by any person to apolice officer in the course of an investigation for anypurpose at any enquiry or trial in respect of the offenceunder investigation, save as mentioned in the proviso and incases falling under sub-section (2), and it specificallyprovides that nothing in it shall be deemed to affect theprovisions of Section 27 of the Evidence Act. The words ofSection 162 are wide enough to include confession madeto police officer in the course of an investigation. Astatement or confession made in the course of an

investigation may be recorded by Magistrate under Section164 of the Code of Criminal Procedure subject to thesafeguards imposed by the section. Thus, except as providedby Section 27 of the Evidence Act, confession by anaccused to police officer is absolutely protected underSection 25 of the Evidence Act, and if it is made in thecourse of an investigation, it is also protected by Section162 of the Code of Criminal Procedure, and confessionto any other person made by him while in the custody of apolice officer is protected by Section 26, unless it is madein the immediate presence of Magistrate. These provisionsseem to proceed upon the view that confessions made byan accused to police officer or made by him while he is inthe custody of police officer are not to be trusted, andshould not be used in evidence against him. They are basedupon grounds of public policy, and the fullest effect shouldbe given to them.”

•K. Chinnaswamy Reddy v. State of A.P., [(1963) 3 SCR412] as hereunder: –

“9. Let us then turn to the question whether the statementof the appellant to the effect that “he had hidden them (theornaments)” and “would point out the place” where theywere, is wholly admissible in evidence under Section 27 oronly that part of it is admissible where he stated that hewould point out the place but not that part where he statedthat he had hidden the ornaments. The Sessions Judge inthis connection relied on Pulukuri Kotayya v. King-Emperor [(1946) 74 IA 65] where part of the statementleading to the recovery of knife in murder case washeld inadmissible by the Judicial Committee. In that casethe Judicial Committee considered Section 27 of the IndianEvidence Act, which is in these terms:

“Provided that, when any fact is deposed to asdiscovered in consequence of information received froma person accused of any offence, in the custody of apolice officer, so much of such information, whether itamounts to confession or not, as relates distinctly tothe fact thereby discovered, may be proved.”

This section is an exception to Sections 25 and 26, whichprohibit the proof of confession made to police officeror confession made while person is in police custody,unless it is made in immediate presence of Magistrate.Section 27 allows that part of the statement made by theaccused to the police “whether it amounts to confessionor not” which relates distinctly to the fact therebydiscovered to be proved. Thus even confessional statementbefore the police which distinctly relates to the discoveryof fact may be proved under Section 27. The JudicialCommittee had in that case to consider how much of theinformation given by the accused to the police would beadmissible under Section 27 and laid stress on the words“so much of such information … as relates distinctly to thefact thereby discovered” in that connection. It held that theextent of the information admissible must depend on theexact nature of the fact discovered to which suchinformation is required to relate. It was further pointed outthat “the fact discovered embraces the place from whichthe object is produced and the knowledge of the accusedas to this, and the information given must relate distinctly tothis fact”…..”

On Merit:

32. We shall first take the case of the accused who sufferedconviction at the hands of the Trial Court and the High Court. On perusal,we find that the courts have dealt with all the contentions thoroughly.FThe Trial Court considered the issue qua the delay, and the reasoningrendered thereunder does not warrant interference. We do not find anymaterial to hold that the delay is willful and deliberate to the extent ofcreating any suspicion. The occurrence happened at night and Ext. P1reached on the next day evening. There is no clarity on the mode. PerhapsGit reached late during the day as it would have been felt not to place itbefore the jurisdictional Magistrate during the night-time, at the time ofoccurrence. The Trial Court has considered this aspect, and as we findno infirmity in its reasoning, which is rendered by taking into considerationthe other evidence available on record, including the deposition of theeye-witnesses, we are inclined to reject the said contention.

33. It is also contended that it would not be probable to make areference in Ext. P1 about the registration number of vehicles whichwas known to P.W.1 only the next day. Though not raised before theTrial Court, the said contention also deserves to be rejected for thereasoning aforesaid. The evidence available on record would suggestthe place of occurrence and the manner in which it happened. The TrialCourt found acceptance of the testimonies of the witnesses who sawthe occurrence. The deposition was rendered by P.W.1 after theregistration of Exhibit P1. This would not materially alter the case of theprosecution.34. Though A-8 and A-9 were injured, they have taken plea thatthey were not present at the place of occurrence. The Trial Court wasright in holding that the doctor’s evidence and the evidence of the eye-witnesses would clearly explain the reasons behind the injury suffered.The accused (A-8 and A-9) suffered the injury at the place of occurrence,which they denied. Thus, the said contention raised also deserves to berejected.

35. We find that nothing has been elicited from the eye-witnessesinsofar as the aforesaid accused are concerned to impeach through theirevidence. Merely because the witnesses are family members apart frombeing chance witnesses, their testimonies cannot be rejected. P.W.’s 4and 21 are likely to be seen near the place of occurrence. P.W. 21 wasworking in the theatre nearby, and P.W.4 was neighbour. Though theywould not have seen the occurrence from inside the house, their presencecannot be doubted to the extent of being present there. Therefore, theirevidence as applicable to A-2, A-4, A-5, A-8 and A-9 must be approved.Both the courts have considered the entire evidence available in drawingtheir conclusion, which we do not find to be perverse. In such view ofthe matter, Criminal Appeal Nos. 450-451 of 2015 and Criminal AppealNo. 959 of 2015 stand dismissed.

36. This takes us to the remaining criminal appeals being CriminalAppeal Nos.430-431 of 2015. We find considerable force in thesubmission made by Mr. R. Basant, learned senior counsel. The TrialCourt has given cogent reasoning for acquitting these accused. It foundthe witnesses struggling and going back and forth to identify these accusedpersons. Incidentally, it found that two material objects in which A-8 andA-11 were involved either by travelling to the place of occurrence or byowning are not proved by duly connecting them. Very exhaustive reasonshave been given for coming to the said conclusion.

A37. The High Court found fault with the Trial Court by relying onSection 149 IPC. To attract Section 149, the prosecution has to prove itsfoundational facts. The Trial Court has taken possible view that theevidence rendered by the eye-witnesses does not satisfy the Court quathe presence of A-10 to A-13. As recorded by us, adequate reasonshave been given for coming to this conclusion. In that context, the TrialBCourt held that P.W.1 and P.W.2 did not state that A-11 inflicted injuries.The Trial Court had the advantage of seeing the witnesses as theydeposed. The appellate forum cannot change the conclusion arrived atthereafter by substituting its views. It seems to us that the High Courthas adopted the principle of preponderance of probability as could beCapplicable to the civil cases to the case on hand when more scrutiny iswarranted for reversing an order of acquittal.

38. The reasoning of the Trial Court for not going with the evidenceof P.W. 21 and P.W. 46 as against A-11 and A-13 appears to be anacceptable one as it was extremely doubtful on the evidence renderedDby the eye-witnesses who actually saw the occurrence from outside thehouse. Furthermore, these witnesses, P.W.21 and P.W.46, have giventheir statements under Section 161 Cr.PC only after nine days and twodays delay subsequently. Therefore, we can draw our analogicalreasoning since the evidentiary arguments raised on behalf of thestatements provided by these witnesses raise suspicion and are likely toEmislead or, at any rate, not firm enough to support seriously contestedconclusion. Thus, to the Trial Court’s decision, we give our approval.

39. The High Court placed its reliance also on the recovery coupledwith the scientific evidence. We believe that such recoveries are expectedto be proved if relied upon by the Court. As against P.W. 35, who signedFthe recovery mahazar, he was not even acquainted with the place andlived in far distant area. Similarly, P.W. 33 is not resident of thelocality. Except for P.W.4, the other witnesses have not identified thematerial object recovered.

40. P.W.40, who signed the recovery mahazarqua A-11, turnedGhostile. Furthermore, the arrest of A-11 was made on 05.08.2002, whilethe recovery was made on 13.08.2002, creating serious doubt.

41. For the recovery made from A-12 also, there is no confirmationfrom P.W.1 to P.W.3. P.W.34, who signed mahazar is also CPI(M)party member. We may also hasten to add that P.W.64, InvestigatingHOfficer, feigns ignorance of the witnesses who signed the recovery

mahazar pertaining to A-10 and A-11 as to whether they belong to thesaid party or not as he did not even know as to where they hail from. Onthe recovery made from A-12, mahazar was signed by P.W.50, whowas also incidentally CPI(M) member and the other attesting memberwas not examined. It is also improbable that A-12 could wear the samedress for more than 10 days with the bloodstains. The same logic wouldalso apply to A-10 as well.

42. The blood-stained dress was stated to have been recoveredfrom A-13 from the hospital. It is not known as to how the said dressreached the hospital, and there is no evidence forthcoming on that count,apart from correlating the said dress to that of the accused.

43. From the above, we can find structured pattern in therecovery of A-10 to A-13. There appears to be some anxiety on the partof the prosecution to make compulsory recoveries. The recoveries aresaid to have been made from the house of P.W.21, having no connectionwith A-10. The fallacious notion that the recovery of such an incriminatingarticle was made from place that might also be accessible to the P.W.21,is also one of the doubts we sense in the following factual analogy of thiscase. P.W. 21 is also the same witness who has given his 161 Cr.PCstatement nine days after the incident pertaining to the accused. Thisfurther raises the question on the credibility of the prosecution case.

44. Upon the discussion made as aforesaid, we are inclined todismiss the appeals filed being Criminal Appeal No.450-451 of 2015 andCriminal Appeal No.959 of 2015 confirming the conviction rendered bythe High Court. The conviction rendered by the High Court against theappellants in Criminal Appeal No. 430-431 of 2015 arrayed as A-10 toA-13 stands set aside. Consequently, the appeals filed by accused nos.A-10 to A-13 being Criminal Appeal No.430-431 of 2015 are allowed bysetting aside the judgment rendered by the High Court and restoring theacquittal rendered by the Trial Court. Bail bonds, if any, pertaining to A-10 to A-13 stand discharged. Pending application(s), if any, stand(s)disposed of.

Devika Gujral(Assisted by : Shevali Monga, LCRA)

Appeals disposed of.