SHRI SATISH KUMAR & ANR. versus THE STATE OF HIMACHAL PRADESH & ANR.
[2020] 3 S.C.R. 1144, Supreme Court of India, 2020
Outcome: Appeal(s) allowed (Granted)
Segment: Body
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[2020] 3 S.C.R. 1144
1144
SHRI SATISH KUMAR & ANR.
v.
THE STATE OF HIMACHAL PRADESH & ANR.
(Criminal Appeal No. 19 of 2017)
MARCH 02, 2020
[UDAY UMESH LALIT, INDU MALHOTRA
AND HEMANT GUPTA, JJ.]
Penal Code, 1860: s.302 r/w s.34 – Prosecution case was
that the informant was the daughter of the victim-deceased – As per
her statement, the deceased had left in the morning on the fateful
day to meet one ‘K’ and thereafter he had to join duty – When he
did not return home till 6 pm she called him but his phone was
switched off – Next morning, she called the Forest Guard who told
her that the deceased had not come to duty – Thereafter she called
accused-S whose house was near her house and sought number of
‘K’ – Police came to her house and she found that her father had
died due to gun shot by accused-S and accused-R and the body
was lying in the forest – The dead body and murder weapon were
allegedly recovered on the disclosure statements made by the two
accused stated to have been made in presence of PW-2 and PW-3 –
Trial court acquitted all the accused for the reason that prosecution
failed to prove the guilt of the accused beyond reasonable doubt –
On State’s appeal against acquittal, High Court reversed the order
of acquittal holding that the finding of trial court that dead body
was recovered prior to the disclosure statement made by the
accused-S and accused-R was not correct and that the dead body
was recovered only
on the basis of the disclosure statements – Appeal
against conviction – Held: The statements of the prosecution
witnesses did not appear to be trustworthy – The entire prosecution
case was based on the telephone call made by accused-S but no
call details were produced to verify their correctness – The other
incriminating circumstance weighed with the High Court was the
recovery of the single barrel gun with the cartridge from the house
of accused-L, the licence holder – The report of the forensic science
laboratory only showed that such gun was used in the commission
of crime, but prosecution failed to establish which of the accused
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actually used the gun – The disclosure statement of accused-S was
that he fired from the gun – But the recovery of the gun was on the
basis of disclosure statement of accused-R – There was no direct
evidence as to the use of licensed gun of accused-L, though the
gun along with empty and live cartridges were recovered on the
statement of accused-R – In the absence of evidence as to which of
the two accused fired upon the deceased, the accused cannot be
convicted only on the basis of recovery of gun used in the
commission of crime – Prosecution also failed to prove any motive
on the part of the accused – Thus, in the absence of any evidence
led by the prosecution as to who fired the fatal shot, the benefit of
doubt to the accused persons was rightly granted by the trial court
– High Court interfered with the findings of acquittal even though
the conclusion drawn by the trial court was a possible conclusion
on the basis of evidence on record – As regards conviction under
ss.25 and 27 of Arms Act, none of the conditions mentioned in those
sections were attracted – Conviction of the appellants for the offences
punishable under s.302 r/w s.34 and ss.25 and 27 of the Arms Act
is set aside – Arms Act, 1959 – ss.25 and 27.
Code of Criminal Procedure, 1973: s.389 – Jurisdiction of
Appellate Court to interfere with order of trial court – Scope of –
Held: While exercising the jurisdiction under s.389 of the Code,
especially when trial court has recorded a finding of
not proving
the guilt, the Appellate Court should interfere only if the findings
are perverse and are not possible by any reasonable person – High
Court in an appeal against acquittal does not interfere only if the
Appellate Court has a different view on process of evidence than
what was taken by the trial court – Penal Code, 1860 – s.302 r/w
s.34.
Evidence: Circumstantial evidence – Motive, absence of –
Effect on prosecution case – Held: In a case based upon
circumstantial evidence, motive is relevant – In the instant case,
prosecution failed to prove any motive on the part of the accused –
As per the statement of PW-1, the motive was land dispute with
accused-S – If such was a motive, then there was no reason for her
to contact accused-S who was said to be staying near her house, to
find out whereabouts of her father (victim-deceased) – The said
motive had no foundation to stand – Criminal law – Motive – Penal
Code, 1860 – s.302 r/w s.34.
SHRI SATISH KUMAR & ANR. v. STATE OF HIMACHAL
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Allowing the appeals, the Court
HELD: 1. The first statement of PW-1 was that she came
to know from the police, when they arrived at the village, that
accused-S and accused-R have killed her father. She as PW1
deposed that the statement of the accused was recorded before
they proceeded to the forest, and that except ward member (PW-
2) nobody had told her that her father had been murdered by
accused-S and accused-R. It was after her statement that she
went to the forest with the police, along with PW-2 and PW-3, and
accused-R and accused-S. She further deposed that PW-2 had
informed her before the arrival of the police that the dead body
of her father was lying in the forest. PW-2 is ward member from
Balh Churani of Gram Panchayat Robin. Some officials proceeded
to the spot, whereas some came along with dead body of her
father. On the other hand, PW-2 was declared hostile. In his cross-
examination, he denied that any disclosure statement was made
by the accused-S and accused-R. He also denied that accused-R
had signed any statement in his presence. He denied other
recovery memos as well. In the cross-examination by the accused,
he admitted that Balh Churani forest starts near the house of
deceased and many registered hunters used to come to this forest
for hunting prior to the occurrence. Some hunters without
permission, would also come to the forest. The dead body was
recovered from a distance of approximately 1 KM
from his house.
The motorable road is at a distance of 1½ KM from the dead
body. He deposed that the statement of PW-1 and accused-S was
recorded near the dead body after identification of the dead body.
He deposed that accused-S stated to the police that he fired a
gunshot by mistake but he had not stated that the gunshot was
fired by him and by accused-R. He stated that accused-R had
stated to the police that their gun was not used for firing but was
still taken into possession by the police. He admitted that there
were criminal cases between the father of accused-S and himself,
but those cases were compromised. [Paras 15, 16][1155-E-H;
1156-A-D]
2. PW-3 also turned hostile and denied that any statement
was made by accused-S and accused-R in his presence. In cross-
examination, he deposed that 15-20 persons of Balh Churani
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Village had gone to the forest. He admitted that the dead body
was searched by the police and was not demarcated by anybody
else. PW-15 (Inspector) in his cross-examination deposed that
accused-S and accused-R were arrested on 22nd December, 2009
at 1.30 pm. He categorically deposed that he had not informed
PW-2 before proceeding from the police station. He did not
enquire with anybody over the telephone from the police station
pursuant to Daily Diary Report. He deposed that he came to know
that deceased had died due to gunshot injury before recording
the statement of PW-1. [Paras 17, 18][1156-E-G]
3. The phone call was received by police at 7.15 am. The
distance of the place of recovery of dead body in forest from the
house of the deceased is only about 2 Kms approx. In the first
statement of PW-1 recorded at 12.45 pm, there is an assertion
that her father was killed by gun shot by accused-S and
accused-R. How could she disclose the names of the assailants,
if the police had yet to start investigation? The statement of
accused-S was recorded prior to the statement of accused-R which
was recorded between 1.30 to 2.00 pm as per PW-15. But as per
PW-2 the police called him and got the first confirmation about
the incident from him, whereas the IO completely denied having
made any attempt to contact PW-2 to get any information. As per
the IO, he proceeded to Balh Churani forest after associating
accused-S, PW2, PW3 and PW-1. The conclusion of the cause of
death as due to gunshot by accused-S and accused-R could find
mention in the FIR, which is the basis of initiating the investigating
process, only if the dead body had already been recovered. The
IO has given contradictory statement as that of statement of
PW-1 as well as PW-2. The statements of the witnesses did not
appear to be trustworthy so as to maintain conviction of the
appellants. The evidence of the prosecution did not inspire
confidence. [Para 19][1157-A-D]
4. The entire prosecution case was based upon the
telephone call made by accused-S but no call details have been
produced to verify the correctness of the telephone call. As per
the IO, there was no verification made in pursuance of the phone
call received. The other incriminating circumstance weighed with
SHRI SATISH KUMAR & ANR. v. STATE OF HIMACHAL
PRADESH & ANR.
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the High Court was the recovery of the single barrel gun with
the cartridge from the house of accused-L, the licence holder.
The report of the forensic science laboratory would only show
that such gun was used in the commission of crime, but the
prosecution has failed to establish which of the accused has
actually used the gun. The disclosure statement of accused-S is
that he fired from the gun. But the recovery of the gun is on the
basis of disclosure statement of accused-R. There is no direct
evidence as to the use of licensed gun of accused-L, though the
gun along with empty and live cartridges were recovered on the
statement of accused-R. It is not possible to conclusively hold
that it was either accused-R or accused-S who fired upon the
deceased. In the absence of the evidence as to which of the two
accused fired upon the deceased, the accused cannot be convicted
only on the basis of recovery of gun used in the commission of
crime. [Paras 20, 21][1157-E-H; 1158-A]
5. The High Court has convicted all the accused additionally
for the offences under Sections 25 and 27 of the Act. None of the
conditions mentioned in Section 25 of the Act were even broadly
extended towards the accused including accused-L, the licensee.
Section 27 of the Act provides for punishment if whoever uses
any arms or ammunition in contravention of Section 5 of the said
Act. Again, none of the conditions mentioned in Section 5 are
attracted
towards any of the accused including accused-L. [Para
22][1158-B-C]
6. In a case based upon circumstantial evidence, motive is
relevant but the prosecution has failed to prove any motive on
the part of the accused. As per the statement of PW-1, the motive
was land dispute with accused-S. If such was a motive, then there
was no reason for her to contact accused-S who was said to be
staying near her house, to find out whereabouts of her father.
The said motive has no foundation to stand. [Para 23][1158-D]
7. The trial court has recorded an order of acquittal. Such
order of acquittal could be interfered with only if there was
perversity in the findings recorded by the trial court. Mere fact
that the High Court has a different opinion will not be sufficient
to enable the High Court to set aside the order of acquittal. While
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exercising the jurisdiction under Section 389 of the Code of
Criminal Procedure, 1973, especially when trial court has
recorded a finding of not proving the guilt, the Appellate Court
should interfere only if the findings are perverse and are not
possible by any reasonable person. The High Court in an appeal
against acquittal does not interfere only if the Appellate Court
has a different view on process of evidence than what was taken
by the trial court. [Para 24][1158-E-G]
8. The High Court interfered with the findings of acquittal
even though the conclusion drawn by the trial court is a possible
conclusion on the basis of evidence on record. The prosecution
has failed to prove the role of accused in causing death of the
deceased inasmuch as the recovery of dead body in pursuance of
similar disclosure statements made by accused-S and accused-R
is not proved. In the absence of any evidence led by the
prosecution as to who fired the fatal shot, the benefit of doubt
must go to the accused persons and was rightly granted by the
trial court. The order of the High Court convicting the appellants
is wholly illegal, unwarranted and unjust. The conviction of the
appellants for the offences punishable under Section 302 read
with Section 34 IPC and Sections 25 and 27 of the Act is set
aside. [Paras 25, 26][1159-G-H; 1160-A-B]
Sharad Birdhichnd Sarda v. State of Maharashtra
(1984) 4 SCC 116 : [1985] 1 SCR 88 ; Brajendra singh
v. State of M.P. (2012) 4 SCC 289 :
[2012] 3 SCR 599
Chandrappa and Others v. State of Karnataka (2007)
4 SCC 415 : [2007] 2 SCR 630 – referred to.
Case Law Reference
[1985] 1 SCR 88
referred to
Para 11
[2012] 3 SCR 599
referred to
Para 12
[2007] 2 SCR 630
referred to
Para 24
CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
No. 19 of 2017.
From the Judgment and Order of Conviction dated 20.09.2016
and Order of Sentence dated 22.09.2016 of the High Court of Himachal
Pradesh, Shimla in Criminal Appeal No. 126 of 2013.
SHRI SATISH KUMAR & ANR. v. STATE OF HIMACHAL
PRADESH & ANR.
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With
Criminal Appeal No. 1109 of 2016
Ms. Ruchi Kohli, Ms. Babita Yadav, Amit Sharma, Ms. Srishti
Mishra, R. C. Kohli, Advs. for the Appellants.
Ms. Upasana Nath, Abhinav Mukerji, Ms. Radhika Gautam, Advs.
for the Respondents.
The Judgment of the Court was delivered by
HEMANT GUPTA, J.
1. Criminal Appeal No. 19 of 2017 is preferred by Satish Kumar
and Rajeev Kumar whereas Criminal Appeal No 1109 of 2016  is preferred
by Lekh Ram, against common judgment of the High Court of Himachal
Pradesh dated 20th September,  2016  whereby the appeal filed by the
complainant was allowed and the order of acquittal passed by the learned
trial court on 30th November, 2012 was set aside. The  appellants  were
convicted  for  the  offences punishable  under  Section  302  read  with
Section 34 of the Indian Penal Code, 18601 as well as under Sections 25
and 27 of the Arms Act, 19592.
2. Brief  facts  leading  rise  to  the  present  appeals  are  that  on
22nd December, 2009 at about 07:15 hours, an information (Ex PW 15-
A) was received by Ram Singh (PW-15), Inspector, on phone said to be
by Satish Kumar son of Kanshi Ram, that Ratti Ram son of late Shri
Roshan Lal, had  died  due  to  gun  shot. On  receiving  such information,
a Police team led by the Station House Officer of Police Station
Ghumarwin proceeded towards the place of occurrence. Subsequently,
on the statement of Neelam Sharma (PW-1), daughter of deceased Ratti
Ram,
FIR No. 218 was registered on 22nd December, 2009 at about
14:05 hours.
3. Neelam Sharma had stated that her father left home at about 8
am on 21st December, 2009 informing her that he would go to the house
of Karma at Village Chujala and thereafter he would go to attend his
duty at Village Harlog. But when he did not return till 6 pm, she called on
his mobile number but mobile was switched off. She called in the morning
to the Forest Guard to inquire about her father who told her that her
father had not come there to join the duty. Thereafter, she  made  telephone
1 for short, ‘IPC’
2 for short, ‘Act’
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call to accused Satish Kumar, whose house is in front of her house and
sought phone number of Karma, resident of Village Chujala. The Police
came to her house on 22nd December, 2009, when she came to know
that her father had died due to gun shot by Satish Kumar and Rajeev
Kumar and the body of his father is lying at Balh Churani forest. The
motive of murder was said to be land  dispute with Satish Kumar pending
in Shimla High Court.
4. Ram Singh  (PW-15),  Inspector,  deposed  that  the  disclosure
statements of accused Satish Kumar and Rajeev Kumar were recorded
on 22nd December, 2009 itself. The statements of both the accused Satish
Kumar (Ext. PW2/A) and Rajeev Kumar (Ext. PW15/C) were recorded
in the presence of Jaswant Singh (PW-2) and Kuldeep Singh (PW-3).
They disclosed that the dead body of deceased Ratti Ram had been
concealed in Balh Churani forest and that they could get the same
recovered. Both the accused accompanied the Police team to Balh
Churani forest and on  their demarcation of the spot, the dead body of
deceased Ratti Ram was recovered on 22nd December, 2009 in the
presence of witnesses Jaswant Singh and Kuldeep Singh. The memo of
taking possession of dead body is Ex.PW15/F.  A bag was also recovered
lying nearby the  dead  body  which  was  identified  by  Neelam Sharma
(PW-1) belonging to her father. The dry soil was also taken from the
spot by the Police and spot map of the recovery of dead body was also
prepared. Two pellet marks
were visible on the stems of bushes. The
embedded pellets were removed with a stone.
5. Subsequently, on  the  same  day,  another  statement  of  accused
Rajeev Kumar was recorded in respect of disclosure of single barrel
gun concealed in his house. The  recovery  memo  is  PW15/G. Accused
Rajeev Kumar also stated that he had concealed empty cartridge in his
house, which was also taken in possession from hishouse on 27th
December, 2009. Accused Lekh Ram is the father of accused Rajeev
Kumar. It is alleged that the gun was licensed in his name and two live
cartridges were recovered from his house.
6. The Investigating Officer (IO) had also taken possession of
blood-stained soil, leaves and grass particles lifted from the spot; and the
clothes worn by the deceased Ratti Ram. All these articles along with
the gun, the empty cartridge and the live cartridges were sent for forensic
science examinations. The report (Ex.PW14/D) dated 22nd  March, 2010
in respect of articles such as clothes and blood on the  clothes  and  the
SHRI SATISH KUMAR & ANR. v. STATE OF HIMACHAL
PRADESH & ANR. [HEMANT GUPTA, J.]
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soil  was  furnished  whereas  in  respect  of  the gun, the cartridge was
found to be fired from the gun recovered on the  basis  of disclosure
statement of Rajeev Kumar. It was also reported that traces of gunshot
residue on the holes was present on the clothes worn by the deceased
and the range of firing was distant.
7. The  postmortem was conducted on 23rd December, 2009 by
Dr. N.K. Sankhan (PW-7) who had found multiple injuries on the dead
body of deceased Ratti Ram and  also  found  multiple  perforated wounds.
As per his final opinion, deceased Ratti Ram died due to cardio respiratory
failure as a result of injuries to lungs and heart and hypovolemic shock
as a result of gunshot injury.
8. On the basis of the evidence produced, the learned trial court
acquitted all the accused for the reason that the prosecution has failed to
prove the guilt of the accused beyond reasonable doubt. The learned
trial court held that the IO was in the knowledge about the dead body,
therefore, the question of recording of the disclosure statements of
accused persons has got no evidentiary value. The learned trial court
found that the confession of guilt of the  accused  persons  is  difficult  to
be drawn, rather exculpatory conclusions are deducible. The
circumstances  are  not  of  a conclusive nature and do not exclude
every possible hypothesis consistent  with  the  innocence  of  the  accused.
The learned trial court returned
the following finding:
“29. Thus, in view of the evidence as discoursed aforesaid, it is
emerging that investigating officer was in the knowledge about
the dead body and in view of this, the  question  of  recording  of
disclosure statements  of accused  persons  gathers  no  evidentiary
value. If the police already had knowledge of the place of  recovery
then the evidence collected in pursuance to disclosure statements
becomes inadmissible and takes the case out of purview of Section
27 of the Indian Evidence Act.”
9. The High Court found that the finding of the learned trial court
that the dead body was recovered prior to the disclosure statement made
by the accused Satish Kumar and Rajeev Kumar is not correct. In fact,
the dead body was recovered only on the basis of the disclosure
statements. The High Court further found that the recovery of the dead
body and the weapon of offence in pursuance of the disclosure statement
stands corroborated with the report of the forensic science laboratory.
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Thus, the chain of the circumstances is complete so as to warrant
conviction of all the accused.
10. However, in appeal preferred by the complainant, the judgment
of the trial court was set aside. The High Court held that the postmortem
report and the report of the Forensic Science Laboratory emphatically
lead to the use of gun (Ext.P/27) by the accused. Therefore, there is
incriminatory evidence against the accused. The High Court held that
the dead body was not known to the prosecution, before the recovery
was made in pursuance of disclosure statement, therefore, the finding of
the trial court is not correct. The High Court also found that even if it is
assumed that the gun shot fired by only one of the accused, it would not
exculpate the incriminatory role of other co-accused in the relevant
occurrence.
11. The learned counsel for the appellant argued that as the entire
case of the prosecution is based on circumstantial evidence, the
prosecution has to prove the hypothesis that the accused alone have
committed the crime. The prosecution witnesses have given contradictory
statements which does not complete the chain of circumstances and in
fact, the truthfulness of the case of the prosecution is seriously doubted.
This Court in Sharad Birdhichand Sarda v. State of Maharashtra3,
delineated the conditions, which must be fulfilled before a case against
an accused can be said to be established on the basis of circumstances.
It was held as under:
“153. A
close analysis of this decision would show that the following
conditions must be fulfilled before a case against an accused can
be said to be fully established:
(1) the circumstances from which the conclusion of guilt is
to be drawn should be fully established.
It may be noted here that this Court indicated that the
circumstances concerned “must or should” 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” as
was held by this Court in Shivaji Sahabrao Bobade v. State of
Maharashtra [(1973) 2 SCC 793 : 1973 SCC (Cri) 1033 : 1973
Crl LJ 1783] where the observations were made: [SCC para 19,
p. 807: SCC (Cri) p. 1047]
3 (1984) 4 SCC 116
SHRI SATISH KUMAR & ANR. v. STATE OF HIMACHAL
PRADESH & ANR. [HEMANT GUPTA, J.]
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“Certainly, it is a primary principle that the accused must be
and not merely may be guilty before a court can convict and
the mental distance between ‘may be’ and ‘must be’ is long
and divides vague conjectures from sure conclusions.”
(2) the facts so established should be consistent only with
the hypothesis of the guilt of the accused, that is to say, they
should not be explainable on any other hypothesis except that the
accused is guilty,
(3) the circumstances 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.
154. These five golden principles, if we may say so, constitute the
panchsheel of the proof of a case based on circumstantial
evidence.”
12. In Brajendrasingh v. State of M.P.4, this Court held that the
circumstances from which the conclusion of guilt is to be drawn should
be fully established and should also be consistent with only one hypothesis
i.e. the guilt of the accused. The circumstances should be conclusive
and proved by the prosecution. There must be a chain of events so
complete so as not to leave any substantial doubt in the mind of the
Court. The Court held as under:
“27. There is
no doubt that it is not a case of direct evidence but
the conviction of the accused is founded on circumstantial evidence.
It is a settled principle of law that the prosecution has to satisfy
certain conditions before a conviction based on circumstantial
evidence can be sustained. The circumstances from which the
conclusion of guilt is to be drawn should be fully established and
should also be consistent with only one hypothesis i.e. the guilt of
the accused. The circumstances should be conclusive and proved
by the prosecution. There must be a chain of events so complete
4 2012 4 SCC 289
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so as not to leave any substantial doubt in the mind of the Court.
Irresistibly, the evidence should lead to the conclusion inconsistent
with the innocence of the accused and the only possibility that the
accused has committed the crime. To put it simply, the
circumstances forming the chain of events should be proved and
they should cumulatively point towards the guilt of the accused
alone. In such circumstances, the inference of guilt can be justified
only when all the incriminating facts and circumstances are found
to be incompatible with the innocence of the accused or the guilt
of any other person.”
13. The primary question in the present appeals is as to whether,
the prosecution has recovered the dead body prior to recording of
confessional statements of the accused vide Ex. PW2/A and Ex.
PW15/C of Satish Kumar and Rajeev Kumar.
14. It is contended that the information with respect to death of
Ratti Ram was received by Inspector Ram Singh (PW-15) on the phone
by one of the appellants Satish Kumar at 07.15 hours. PW-15 proceeded
to Balh Churani forest along with other police officials after receipt of
such information. Ex. PW1/A is the statement of Neelam Sharma
recorded at 12.45 pm by PW-15 at Village Balh Churani. The FIR is
registered at 14.05 hours.
15. The first statement of Neelam Sharma (Ex. PW 1/A) is that
she came to know from the police, when they arrived at the village, that
Satish Kumar and Rajeev Kumar have killed her father. She as PW1
deposed that the statement of the accused was recorded before they
proceeded to the forest, and that except ward member (Jaswant Singh)
nobody had told her that her father had been murdered by Satish Kumar
and Rajeev Kumar. It is after her statement was recorded that she went
to the forest with the police, and the witness Jaswant Singh and Kuldeep
Singh, and accused Rajeev Kumar and Satish Kumar. She further deposed
that PW-2 Jaswant Singh had informed her before the arrival of the
police that the dead body of her father was lying in the forest. Jaswant
Singh is ward member from Balh Churani of Gram Panchayat Robin.
Some officials proceeded to the spot, whereas some came along with
dead body of her father. She denied that Balh Churani forest is a big
forest.
16. On the other hand, PW-2-Jaswant Singh was declared hostile
when he deposed that no disclosure statement was made by Rajeev
SHRI SATISH KUMAR & ANR. v. STATE OF HIMACHAL
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Kumar in his presence. He was cross-examined by the public prosecutor.
He denied that any disclosure statement was made by the accused Satish
Kumar and Rajeev Kumar. He also denied that Rajeev Kumar had signed
any statement in his presence. He denied other recovery memos as
well. In the cross-examination by the accused, he admitted that Balh
Churani forest starts near the house of deceased Ratti Ram and many
registered hunters used to come to this forest for hunting prior to the
occurrence. Some hunters without permission, would also come to the
forest. The dead body of Ratti Ram was recovered from a distance of
approximately 1 KM from his house. The motorable road is at a distance
of 1 ½ KM from the dead body. He deposed that the statement of Neelam
Sharma and accused Satish Kumar was recorded near the dead body
after identification of the dead body. He deposed that Satish Kumar
stated to the police that he fired a gunshot by mistake but he had not
stated that the gunshot was fired by him and by Rajeev Kumar. He
stated that Rajeev Kumar had stated to the police that their gun was not
used for firing but was still taken into possession by the police. He admitted
that there were criminal cases between Kanshi Ram, father of Satish
Kumar and himself, but those cases were compromised.
17. PW-3 Kuldeep Singh turned hostile and denied that any
statement was made by accused Satish Kumar and Rajeev Kumar in
his presence. In
cross-examination he deposed that 15-20 persons of
Balh Churani Village had gone to the forest. He admits that the dead
body was searched by the police and was not demarcated by anybody
else.
18. PW-15 Ram Singh in his cross-examination deposed that the
accused Satish Kumar and Rajeev Kumar were arrested on 22nd
December, 2009 at 1.30 pm. He categorically deposed that he had not
informed Jaswant Singh (PW-2) before proceeding from the police
station. He did not enquire with anybody over the telephone from the
police station pursuant to Daily Diary Report. He deposed that he came
to know that deceased had died due to gunshot injury before recording
the statement of Neelam Sharma. The accused Satish Kumar and Rajeev
Kumar were questioned in the presence of Jaswant Singh and Kuldeep
Singh. He denied that no telephone call was made by Satish Kumar to
police station. He admitted that the place where the dead body was
lying was about 1 KM from the house of Ratti Ram and both the accused
collectively identified the place where the dead body was lying.
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19. The phone call was received by police at 7.15 am. The distance
of the place of recovery of dead body in forest from the house of the
deceased is only about 2 Kilometers approx. In the first statement of
Neelam Sharma recorded at 12.45 pm, there is an assertion that her
father was killed by gun shot by Satish Kumar and Rajeev Kumar. How
could she disclose the names of the assailants, if the police had yet to
start investigation? The statement of the accused Satish Kumar was
recorded prior to the statement of Rajeev Kumar which was recorded
between 1.30 to 2.00 pm as per PW-15. But as per PW-2 Jaswant
Singh, the police called him and got the first confirmation about the incident
from him, whereas the IO completely denied having made any attempt
to contact PW-2 to get any information. As per the IO, he proceeded to
Balh Churani forest after associating Satish Kumar, Jaswant Singh,
Kuldeep Singh and Neelam Sharma. The conclusion of the cause of
death as due to gunshot by Satish Kumar and Rajeev Kumar could find
mention in the FIR, which is the basis of initiating the investigating process,
only if the dead body had already been recovered. The IO has given
contradictory statement as that of statement of PW-1 Neelam Sharma
as well as PW-2 Jaswant Singh. The statements of the witnesses do not
appear to be trustworthy so as to maintain conviction of the appellants.
The evidence of the prosecution does not inspire confidence.
20. The entire prosecution case
is based upon the telephone call
made by Satish Kumar but no call details have been produced to verify
the correctness of the telephone call. As per the IO, there was no
verification made in pursuance of the phone call received.
21. The other incriminating circumstance weighed with the High
Court is the recovery of the single barrel gun with the cartridge from the
house of Lekh Ram, the licence holder. The report of the forensic science
laboratory would only show that such gun was used in the commission
of crime, but the prosecution has failed to establish which of the accused
has actually used the gun. The disclosure statement of the accused Satish
Kumar is that he fired from the gun. But the recovery of the gun is on
the basis of disclosure statement of accused Rajeev Kumar. There is no
direct evidence as to the use of licensed gun of Lekh Ram, though the
gun along with empty and live cartridges were recovered on the statement
of Rajeev Kumar. It is not possible to conclusively hold that it was either
Rajeev Kumar or Satish Kumar who fired upon the deceased. In the
absence of the evidence as to which of the two accused fired upon the
SHRI SATISH KUMAR & ANR. v. STATE OF HIMACHAL
PRADESH & ANR. [HEMANT GUPTA, J.]
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deceased, the accused cannot be convicted only on the basis of recovery
of gun used in the commission of crime.
22. The High Court has convicted all the accused additionally for
the offences under Sections 25 and 27 of the Act. None of the conditions
mentioned in Section 25 of the Act are even broadly extended towards
all the accused including Lekh Ram, the licensee. Section 27 of the Act
provides for punishment if whoever uses any arms or ammunition in
contravention of Section 5 of the said Act. Again, none of the conditions
mentioned in Section 5 are attracted towards any of the accused including
Lekh Ram. At best, there could be an allegation of violation of conditions
of licence but, none of the accused have been charged for violation
under Section 30 of the Act. Therefore, none of the accused is liable for
conviction for any offence under the Act.
23. In a case based upon circumstantial evidence motive is relevant
but the prosecution has failed to prove any motive on the part of the
accused. As per the statement of Neelam Sharma (PW-1), the motive
was land dispute with Satish Kumar. If such was a motive, then there is
no reason for her to contact Satish Kumar, who was said to be staying
near her house, to find out whereabouts of her father. The said motive
has no foundation to stand.
24. The trial court has recorded an order of acquittal. Such order
of acquittal could be interfered with only if there was
perversity in the
findings recorded by the trial court. Mere fact that the High Court has a
different opinion will not be sufficient to enable the High Court to set
aside the order of acquittal. The High Court in appeal took a different
view than what was taken by the trial court to set aside the judgment
and convict the appellants herein. While exercising the jurisdiction under
Section 389 of the Code of Criminal Procedure, 19735, especially when
trial court has recorded a finding of not proving the guilt, the Appellate
Court should interfere only if the findings are perverse and are not possible
by any reasonable person. The High Court in an appeal against acquittal
does not interfere only if the Appellate Court has a different view on
process of evidence than what was taken by the learned trial court. This
Court in Chandrappa and Others v. State of Karnataka6 considered
the scope of powers of the appellate court against an order of acquittal
passed by the trial court under the Code and held as under:-
5 For short “the Code”
6 (2007) 4 SCC 415
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“42. From the above decisions, in our considered view, the following
general principles regarding powers of appellate Court while dealing
with an appeal against an order of acquittal emerge:
(1) An appellate Court has full power to review, reap-preciate
and reconsider the evidence upon which the order of acquittal is
founded;
(2) The Code of Criminal Procedure, 1973 puts no limitation,
restriction  or  condition  on  exercise  of  such power and an
appellate Court on the evidence before it may reach its own
conclusion, both on questions of fact and of law;
(3) Various expressions, such as, “substantial and com-pelling
reasons”, “good and sufficient grounds” “very strong
circumstances”, “distorted conclusions”, “glar-ing mistakes”, etc.
are not intended to curtail exten-sive powers of an appellate Court
in an appeal against acquittal. Such phraseologies are more in the
nature of “flourishes of language” to emphasise the reluctance of
an appellate Court to interfere with acquittal than to curtail the
power of the Court to review the evidence and to come to its own
conclusion.
(4) An appellate Court, however, must bear in mind that in case of
acquittal, there is double presumption in favour of the accused.
Firstly, the presumption of in-nocence available to him under the
fundamental prin-ciple of criminal jurisprudence that every person
shall be presumed to be innocent unless he is proved guilty by a
competent court of law. Secondly, the accused having
secured
his acquittal, the presumption of his in-nocence is further reinforced,
reaffirmed and strength-ened by the trial court.
(5) If two reasonable conclusions are possible on the basis of the
evidence on record, the appellate court should not disturb the finding
of acquittal recorded by the trial court.”
25. We find that the High Court interfered with the findings of
acquittal even though the conclusion drawn by the trial court is a possible
conclusion on the basis of evidence on record. We find that the prosecution
has failed to prove the role of accused in causing death of the deceased
Ratti Ram inasmuch as the recovery of dead body in pursuance of similar
disclosure statements made by accused Satish Kumar and Rajeev Kumar
is not proved. In the absence of any evidence led by the prosecution as
SHRI SATISH KUMAR & ANR. v. STATE OF HIMACHAL
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to who fired the fatal shot, the benefit of doubt must go to the accused
persons and was rightly granted by the learned trial court.
26. Consequently, we find that the order of the High Court
convicting the appellants is wholly illegal, unwarranted and unjust. The
conviction of the appellants for the offences punishable under Section
302 read with Section 34 IPC and Sections 25 and 27 of the Act is set
aside. Accordingly, both the appeals are allowed. The order of acquittal
recorded by the trial court is restored. The bail bonds shall stand
discharged. All the accused be set at liberty, if not wanted in any other
case.
Devika Gujral
Appeals allowed.