Whether reporters of local papers may be allowed to see the judgment? Yes, IN THE HIGH COURT OF HIMACHAL PRADESH, SHIMLA. Cr. Appeal No. 288 of 2002.. Date of Decision: 14th September, 2011. ------------------------------------------------------------- State of H.P. …… Appellant. Versus Rajinder alias Raju & Another ……. Respondents. Coram The Hon’ble Mr. Justice R.B. Misra, Judge. The Hon’ble Mr. Justice Dev Darshan Sud, Judge. Whether approved for reporting? Yes. For the Appellant : Mr. R.K. Sharma, Sr. Addl. Advocate General with Rajinder Dogra, Addl. A.G. . For the Respondents: Mr. Anil Chauhan, Amicus Curiae . Per Justice Dev Darshan Sud, J. (oral) : Nobody appears for the respondents. Mr. Anil Chauhan, Advocate consented to assist this Court as Amicus Curiae. 2. The State is aggrieved by the judgment passed by the learned Sessions Judge, Sirmour at Nahan in Sessions Trial No. 30- ST/7 of 2001 acquitting the respondents who were charged for offences under Section 302 read with Section 34, IPC. 3. The case of the prosecution is that Sukh Ram was addicted to liquor and used to often drink with the accused. On 29.9.2000, he did not return home and therefore his son Suresh Kumar searched him in the Veterinary Hospital, his place of work. Being unsuccessful he then made a search in the house of his relatives. On inquiry from Narinder, he came to know that the deceased had taken a sum of Rs.100/- from him and on further - 2 - inquiry from Dwarka Devi and Ashok Kumar, he learnt that the deceased had consumed liquor on 22.9.2000 in the Dochi (hut) with Fanti Ram and Maan Singh. On 26.9.2000, Moti Singh, PW5 met Suresh Kumar, PW1 and told him that at about 7.00 P.M. on 22.9.2000 he had seen the deceased with the accused persons, who were under the influence of liquor and were talking loudly about elections in the Panchayat. Suresh Kumar, PW1 lodged a report regarding the fact that the deceased was missing. Long and short of the entire prosecution story is that the circumstance urged against the accused persons is that they were last seen with the deceased. 4. Post mortem was conducted by Dr. Piyush Kapil, PW3, he did not find any injury on the body of the deceased except on his skull. The circumstance relied upon by the prosecution for bringing home guilt to the accused persons is that they were last seen with the deceased in the house of one Shukru, where they had consumed liquor together. In these circumstances, he was a very important witness rather the main witness to have testified about the fact regarding the deceased having consumed liquor with him along with the accused. He has not been produced in evidence for reasons best known to the prosecution. The settled principle of law is that though the prosecution cannot be told or dictated to as to which witness is to be produced none the less the best witness/evidence ought to have been produced on record. Mere withholding the evidence is not by itself fatal to the prosecution case if the incident is otherwise established on record by other evidence. However, - 3 - where the best evidence is withheld it would obviously lead to the conclusion that an adverse inference ought to be drawn against the prosecution. The law on the point is now well settled. In Swaran Singh and others versus State of Punjab, (1976) 4 SCC 369 the Supreme Court holds that : “13. …………………………………………The onus of proving the prosecution case rests entirely on the prosecution and it follows as a logical corollary that the prosecution has complete liberty to choose its witness if it is to prove its case. The court cannot compel the prosecution to examine one witness or the other as its witness. At the most, if a material witness is withheld, the court may draw an adverse inference against the prosecution. But it is not the law that the omission to examine any and every witness even on minor points would undoubtedly lead to rejection of the prosecution case or drawing of an adverse inference against the prosecution. The law is well settled that the prosecution is bound to produce only such witness as are essential for unfolding of the prosecution narrative. In other words, before an adverse inference against the prosecution can be drawn it must be proved to the satisfaction of the court that the witnesses who had been withheld were eyewitnesses who had actually seen the occurrence and were therefore material to prove the case. It is not necessary for the prosecution to multiply witnesses after witnesses on the same point’ it is the quality rather than the quantity of the evidence that matter. In the instant case, the evidence of eyewitnesses does not suffer from infirmity or any manifest defect on its intrinsic merit. Secondly, there is nothing to show that at the time when the deceased was assaulted a large crowd had gathered and some of the members of the crowd had actually seen the occurrence and were cited as witnesses for the prosecution and then withheld. We must not forget that in our country there is a general tendency amongst the witnesses in mofussil to shun giving evidence in courts because of the cumbersome and dilatory procedure of our courts, the harassment to which they are subjected by the police and the searching cross-examination which they - 4 - have to face before the courts…………………” (pages 377-378) 5. In Pratap Singh and another versus State of M.P, (2005) 13 SCC 624, the Court rules that : “18. The High Court, in our opinion, further committed an error in not drawing an adverse inference for non- examination of Shivrajsingh and Motiram. It was for the prosecution to prove its case. Even if in the first information report their names were not disclosed but if during investigation material came to the notice of the investigating officer that apart from Mangal Singh two other witnesses had also witnessed the occurrence, he was duty-bound to show the places wherefrom they had witnessed the occurrence in the site plan prepared by him and also record their statements under Section 161 of the Code of Criminal Procedure. We do not see any reason as to why adverse inference should not have been drawn for non filing of the said statements before the Court along with the charge sheet……………………..” ( Page 629) 6. This principle is reiterated in State of U.P. versus Punni & Ors, 2008 Cr. L. J. 1028 where the Court rules that : “8. ………………………………On the question of non examination of the S.O. and the I.O., which led to an adverse inference being drawn by the High Court against the prosecution, the fact that the same was fatal would also be clear from a decision of this Court in the case of Habeeb Mohammad v. State of Hyderabad (AIR 1954 SC 51) in which this Court at para 11 observed as follows: “it is said that the state of things above described arose because of a supposed obligation on the prosecution to call every available witness on the principle laid down in such a case as Ranjan Roy v. Emperor (ILR 42 Cal. 422), to the effect that all available eye witnesses should be called by the prosecution even though, as in the case cited, their names were on the list of defense witnesses. Their Lordships do not desire to lay down any rules to fetter discretion on a matter - 5 - such as this which is so dependent on the particular circumstances of each case. Still less do they desire to discourage the utmost candour and fairness on the part of those conducting prosecutions; but at the same time they cannot, speaking generally, approve of an idea that a prosecution must call witnesses irrespective of considerations of number and of reliability, or that a prosecution ought to discharge the functions both of prosecution and defense. If it does o confusion is very apt to result, and never is it more likely to result than if the prosecution calls witnesses and then proceeds almost automatically to discredit them by cross-examination. Witnesses essential to the unfolding of the narrative on which the prosecution is based, must, of course, be called by the prosecution, whether in the result the effect of their testimony is for or against the case for the prosecution.” 9. Relying on the aforesaid observations of this Court in the above-mentioned case, we, therefore, agree with the findings and the reasoning of the High Court, while setting aside the order of conviction, on the question of non- examination of the S.O., who was the architect of the facts of case. In Ram Prasad & Ors v. State of U. P. (1974(3) SCC 388), this Court has held that in case the Court finds that the prosecution has not examined the witnesses for reasons not tenable or not proper, the Court would be justified in drawing an adverse inference against the prosecution. In view of the non-examination of the S.O. and the I.O. and also in view of the glaring discrepancies pointed out by the High Court in its judgment, as noted herein earlier, we are, therefore, in agreement with the High Court that in the facts and circumstances of the present case and on the evidence on record, the order of acquittal was reasonably possible to arrive at and that being the position, we do not find any reason to interfere with the judgment of acquittal in the exercise of our jurisdiction under Article 136 of the Constitution……………………………………………………………………. 10. Before we part with our discussion on the findings of the High Court while setting aside the order of conviction of the Additional Sessions Judge, VIth Court at Etah, we may note that reliance was placed at the bar on the case of Kashiram and others v. State of M.P.{(2002) 1 SCC 71}. In - 6 - that decision, this Court while considering the power of the High Court to interfere with an order of acquittal of the trial Court held that when two views are possible, the High Court should not interfere only because it feels that sitting as a trial Court, it would have preferred conviction and that the High Court should consider every reason given by the trial Court in favour of an acquittal and then dislodge them. It was also held in that decision that while deciding an appeal against an order of acquittal, the High Court can reappraise the evidence, arrive at findings at variance with those recorded by the trial Court in its order of acquittal and arrive on its own findings, yet, the salutary principle, which would guide the High Court is if two views are reasonably possible, one supporting the acquittal and the other recording a conviction, the High Court would not interfere merely because it feels that sitting as a trial Court, its view would have been one of recording a conviction. It was further held in that decision that as a necessary corollary, it was obligatory on the High Court, while reversing an order of acquittal, to consider an discuss each of the reasons given by the trial Court to acquit the accused and then to dislodge those reasons and if the High Court failed to discharge this obligation, it would constitute a serious infirmity in the judgment of the High Court. Reliance was also placed on the decision of this Court in Kunju Muhammed alias Khumani and another v. State of Kerala {(2004)9 SCC 193} wherein this Court has held that the judgment of the trial Court acquitting the accused cannot be reversed by the High Court when the findings of the trial Court were neither perverse nor they could not be reached by a reasonable person and the view taken by the trial Court was the only possible view……………………………………………... 11. In any view of the matter we are of the view that this Court, while dealing with the order of acquittal of the High Court, would not ordinarily interfere with the findings of the High Court unless it is satisfied that such findings is vitiated by some glaring infirmity in the appraisement of evidence or such findings was perverse or arbitrary. (See State of U. P. versus Harihar Bax Singh [AIR1974 SC 1890]. In State of Punjab v. Ajaib Singh [(1995)2 SCC 486], this Court, on the same lines, held that if the order of acquittal was not perverse or palpably erroneous, this Court would not - 7 - interfere with such findings of the High Court acquitting the accused/respondents from the offences charged against them. While considering the scope of Article 136 of the Constitution as to when this Court is entitled to interfere with an order of acquittal, this Court observed in State of U. P. Babul Nath [(1994) 6 SCC 29 ] as follows: “At the very outset we may mention that in an appeal under Article 136 of the constitution this Court does not normally reappraise the evidence by itself and go into the question of credibility of the witnesses and the assessment of the evidence by the High Court is accepted by the Supreme Court as final unless, of course, the appreciation of evidence and findings is vitiated by any error of law of procedure or found contrary to the principles of natural justice, errors of record and misreading of evidence, or where the conclusions of the High Court are manifestly perverse and unsupportable from the evidence on record.” In view of our discussions made herein above, we do not find any ground to interfere with the decision of the High Court, which on consideration of all material on record and the evidence adduced by the parties had acquitted the accused/respondents and therefore, no interference is warranted in the exercise of our power under Article 136 of the Constitution.” (pp. 1031-1033) 7. We are not unmindful of the decision of the Supreme Court in Karnesh Kumar Singh and others versus State of U. P. AIR 1968, Supreme Court 1402 where the Court considering the provisions of Section 114(g) of Evidence Act, 1872 and following the decision in Darya Singh versus State of Punjab, AIR 1965 SC 328 holds that : “13………….a prosecutor should never adopt the device of keeping back eye witnesses only because their evidence is likely to go against the prosecution and that the duty of the prosecutor is to assist the Court in reaching a proper conclusion. It is open, however, to the prosecutor not to examine witnesses who in his opinion have not witnessed the incident, but normally, he ought to examine all the eye - 8 - witnesses in support of his case. But in a case where a large number of persons have witnessed the incident, it is open to him to make a selection. The selection must, however, be fair and honest and not with a view to suppress inconvenient witnesses. Therefore, if it is shown that persons who had witnessed the incident have been deliberately kept back, the court may draw an adverse inference and in a proper case record such failure as constituting a serious infirmity in the proof of the prosecution case.” (p. 1407) 8. This principle would assume importance as prosecution is bound to lead its best evidence on the circumstances and facts constituting the offence and withholding of such witness who was the most important person to have stated about the facts, only obfuscates the facts. Why this witness has not been produced is not clear from the facts on record. We express our anguish at the lackadaisical manner in which the prosecution has conducted the case. 9. Adverting to the principle of law that conviction can be based on circumstantial evidence, is by now well settled in Sharad Birdhichand Sharda versus State of Maharastra, AIR 1984 SC 1622 that the following conditions must be fulfilled: “(1). The circumstance from which the conclusions of guilt is to be drawn should be fully established and not “may be” established. There is not only a grammatical but a legal distinction between “may be proved” and “must be or should be proved”. (2). The facts so established should be consistent not only with the hypothesis of the guilt of the accused, that is to say, they should not be explainable or any other hypothesis except that the accused is guilty. - 9 - (3) The circumstance should be of a conclusive nature and tendency. (4) They should exclude every possible hypothesis except the one to be proved, and (5) There must be a chain of evidence so complete as not to leave any reasonable ground for the conclusion consistent with the innocence of the accused and must show that in all human probability the act must have been done by the accused.” (p.1624) 10. The law is also that the circumstances of strong suspicion without any conclusive evidence are not sufficient to justify conviction and that great care and caution must be taken in evaluating the circumstances and evidence. In any event, when two inferences are manifest on the record, one in favour of the accused must be accepted ( See Pawan Kuma versus {2001} 3 SCC 628). In order to base a conviction on circumstantial evidence each and every piece of incriminating circumstance must be clearly established by reliable and cogent evidence and the circumstances so proved must form a chain of events so complete as would permit no conclusion other than that of guilt of the accused and the circumstances cannot be explained on any hypothesis then that of the guilt of the accused. {See Anil Kumar versus State of Bihar (2003)9 SCC 67, State of Rajasthan versus Rajaram (2003)8 SCC 180, State of Haryana versus Jagbir Singh (2003) 11 SCC 261 Usman Miah versus State of Bihar (2004) 10 SCC 786} 11. Having considered the principles of law applicable to the case, we find that the case of the prosecution was based solely on the evidence of Shukru, who according to the prosecution was - 10 - drinking with the deceased and who was the best witness to have testified to this fact. The case of the prosecution is based on circumstantial evidence of last seen with the deceased where again Shukru was the star witness. We do not find any reason(s) on the record of the case as to why he has not been produced in evidence. On the other principle, the chain of circumstances should be so complete which points to nothing but the guilt of the accused, we also hold that the circumstances have only been alleged but not proved. In these circumstances, we find that the prosecution has been unable to prove on record the guilt/involvement of the respondent-accused in the commission of the crime. There is no perversity in the appreciation of evidence by the learned Trial Court nor is there any illegality in the inference so drawn by it. There is thus no merit in this appeal which is dismissed. 12. Before parting with the judgment, we record our appreciation for the assistance rendered by the learned Amicus Curaie Mr. Anil Chauhan, Advocate. 13. The bail bonds furnished by the respondents are discharged. (R.B. Misra) Judge. 14 th September, 2011. (Dev Darshan Sud) (jai) Judge.