On 25th September 2020 a three bench judge of the Supreme Court consisting of Justice Ashok Bhushan, Justice R. Subhash Reddy, and Justice M.R. Shah in the case of Anwar Ali and another. v. The State of Himachal Pradesh held the Investigating Officer did not follow the procedure as required to be followed under Section 166 (3 & 4), Cr.P.C. Even he did not comply with the provisions of Section 100 (4) Cr.P.C. Nonfollowing of the aforesaid provisions alone may not be a ground to acquit the accused.
Factual Background
The Appellants herein – original accused were charged for the offences punishable under Sections 302 read with 34, 392, 420, and 201, IPC for having committed the murder of one Deepak. That the dead body of the deceased was found near bypass in Chandigarh. That the dead body was seen by, PW4, who informed the police station, Bhunter. On receiving such information, the police came on the spot; recorded the statement of PW4; prepared Rukka, and sent the same through, PW2 to the police station, Bhunter. FIR was registered by Head Constable. That the dead body was identified by the father of the deceased. The investigating officer, PW18 conducted the investigation. The dead body was sent for post mortem. SHO/SI received secret information that one jeep was lying at Chandigarh in an abandoned condition. IO along with the other police officers went to Chandigarh and recovered the abandoned vehicle from Sector 45C, Chandigarh. On checking the jeep, one envelope was found to have been recovered containing a mobile phone, three photographs and the documents of the vehicle were lying on the dashboard of the jeep. IO took into possession the vehicle and the documents vide memo. IO dialed from recovered mobile to his own mobile and the number was detected as 9805523262. From the recovered photographs, the accused were searched at place Pandoh Bajaura Aut. Both the accused were arrested. During the investigation, the IO recovered the crates from Punjab. IO also recovered one knife and the rope, alleged to have been used in the commission of the offence. After the conclusion of the investigation, IO filed a charge sheet against the accused persons for the aforesaid offences. Having found that the prosecution has failed to establish and prove the complete chain of events and that it was a case of circumstantial evidence, by a detailed judgment and order, the learned trial Court acquitted both the accused of the offences for which they were tried. On appeal by the State, by the impugned judgment and order, the High Court has reversed the judgment and order of acquittal passed by the learned trial Court and consequently has convicted the accused of the offences punishable under Sections, 302 read with 34, 392, 420 and 201, IPC. Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in reversing the judgment and order of acquittal and convicting the appellants for the aforesaid offences, the appellants original accused have preferred the present appeal.
Submissions on behalf of the Appellant
The counsel appearing on behalf of the appellants accused submitted:
i. that the High Court has exceeded in its jurisdiction in reversing the well-reasoned judgment and order of acquittal passed by the learned trial Court and consequently convicting the accused:
ii. that the High Court has reversed the judgment of the acquittal on suspicion, surmises, and conjectures;
iii. that the learned trial Court, as such, committed no error in acquitting the accused;
iv. that the learned trial Court on appreciation of evidence disbelieved the recovery of knife and rope at the instance of the accused and it was held that a very important link of the chain was missing;
Submissions on behalf of the respondent
the counsel appearing on behalf of the respondent opposed the appeal. It was submitted that in the present case the High Court has after reappreciation of the entire evidence on record, found the accused guilty for the unnatural death of the deceased. It was submitted that as such the reappreciation of the entire evidence by the first appellate court is permissible; It was submitted that the High Court has given cogent reasons while considering the aforestated circumstances against the accused. Now so far as the submission on behalf of the accused on nonexamination of independent witnesses at the time of recovery and noncompliance of the provisions of Section 100(4) Cr.P.C. and other related provisions is concerned, it is submitted by the learned counsel appearing on behalf of the respondentState that the persons who were gathered at the time of recovery were mere spectators and none had come forward to act as a witness in the matter.
Court Analysis
At the outset, it is required to be noted that this is a case of reversal of acquittal by the High Court in a case of circumstantial evidence. Therefore, the first and foremost thing which is required to be considered is, whether, in the facts and circumstances of the case, the High Court is justified in interfering with the order of acquittal passed by the learned trial Court? Before considering the appeal on merits, the law on the appeal against acquittal and the scope and ambit of Section 378 Cr.P.C. and the interference by the High Court in an appeal against acquittal is required to be considered. Even the recovery of the jeep from Chandigarh and recovery of photographs and the recovery of a mobile phone belonging to PW7 from the jeep also create serious doubts. According to the prosecution and the IO, he received secret information that one jeep is lying in abandoned condition on the Chandigarh road and though the distance was around 300 kilometers, he straightway went to Chandigarh and recovered the jeep in the presence of Bhunter people brought by him. The Investigating Officer did not follow the procedure as required to be followed under Section 166 (3 & 4), Cr.P.C. Even he did not comply with the provisions of Section 100 (4) Cr.P.C. Nonfollowing of the aforesaid provisions alone may not be a ground to acquit the accused. However, considering the overall surrounding circumstances and in a case where recovery is seriously doubted, noncompliance of the aforesaid plays an important role.
Judgment
Considering the aforesaid facts and circumstances of the case, the findings recorded by the learned trial Court, which were based on the appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial court did not consider any material evidence on record. Trial Court was justified in recording the acquittal by observing that the prosecution has failed to complete the entire chain of events. Therefore, the court is of the opinion that in the facts and circumstances of the case, the High Court is not justified in reversing the order of acquittal passed by the learned trial Court. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside.
In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order passed by the High Court of Himachal Pradesh were hereby quashed and set aside, and the judgment and order passed by the learned Additional Sessions Judge HP, was hereby restored. The accusedAppellants and Sharif Mohammad be set at liberty forthwith, if not required in any other case.
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