In case of acquittal by Trial Court, there is double presumption in favour of the accused: High Court of Tripura

 Appellant HIGH COURT OF TRIPURA CRL.A 12 OF 2018 Sri Kripesh Sabdakar S o Lt. Bhupendra Sabdakar resident of Radhanagar P.O. Kumarghat District Unakoti Tripura. 1. The State of Tripura. 2. Dipankar Sabdakar S o Lt. Dhirendra Sabdakar resident of Radhanagar P.O. Kumarghat District Unakoti Tripura. 3. Subhankar Sabdakar S o Lt. Dhirendra Sabdakar resident of Radhanagar P.O. Kumarghat District Unakoti Tripura. 4. Bhanu Sabdakar S o Lt. Dhirendra Sabdakar resident of Radhanagar P.O. Kumarghat District Unakoti Tripura. Respondents. Mr. P. Roy Barman Sr. Advocate Mr. S. Bhattacharjee Advocate. Mr. R. Datta Public Prosecutor Mr. H.K.Bhowmik Advocate. For the Appellants For the State Respondent : For Accused Respondents: Argument heard on Judgment & Order delivered on : 07.04.2021 Whether fit for reporting Yes HON’BLE THE CHIEF JUSTICE MR. AKIL KURESHI HON’BLE MR.JUSTICE ARINDAM LODH Arindam Lodh J) Judgment & Order This appeal under Section 378(4) of the Criminal Procedure Code read with Section 372 of CrPC filed by the complainant arises out of the judgment and order of acquittal dated 18.04.2018 passed by the learned Sessions Judge Unakoti Judicial District Kailashahar in case No.ST 21(U K) of 2015 under Sections 447 323 302 34 of the Indian Penal Code. The facts leading to the present appeal in a nutshell are as The complainant Sri Kripesh Sabdakar lodged a written complaint on 04.01.2015 to the Officer in Charge Fatikroy Police Station inter alia stating that on 02.01.2015 at about 7:30 am Dipankar Sabdakar Bhanu Sabdakar Subhankar Sabdakar and Dhirendra Sabdakar entered into his house with ‘lathi’ and started assaulting his nephew Litan Sabdakar. Litan being sustained injuries on his head fell down with bleeding from his mouth and nose. The accused respondents also had beaten Amrit Sabdakar. Neighbouring people came and shifted Litan to Fatikroy Hospital wherefrom he was referred to RGM Hospital Kailashahar wherefrom he was referred to GBP Hospital Agartala. Delay in filing the FIR was caused due to being busy in connection with the treatment of the victim Litan Sabdakar. Kumarghat PS Case No. 01 2015 under Sections 447 325 34 of IPC was registered on receipt of the complaint. Investigation was commenced and during investigation Litan Sabdakar succumbed to his injuries. On completion of investigation the IO submitted charge sheet under Sections 447 323 302 34 of IPC against the accused respondent Nos. 2 3 and 4 herein. Being committed the learned Sessions Judge framed charge against the respondent Nos. 2 3 and 4 under Sections 447 302 323 read with Section 34 of IPC. In course of trial the prosecution had examined as many as 16 witnesses to substantiate the charge. All the accused persons have pleaded their innocence and claimed trial. During trial one of the accused persons namely Dhirendra Sabdakar died. The respondent Nos. 2 3 and 4 herein are the original accused personsAll the prosecution witnesses being related to the deceased on cautious appreciation of their evidence they were found to be unreliable and untrustworthy. The extent of improved and exaggerated versions was found to be unwarranted ii) PW 3 Sujit Sabdakar is an independent witness who came to know about the alleged involvement of the accused persons with crime from two other independent witnesses Ketaki Sabdakar and Phani Sabdakar but prosecution did not produce and examine them as witnesses which caused a serious doubt in the mind of the learned Sessions Judge iii) Serious discrepancies in the statements of the related witnesses in respect of the fact that many of them sustained serious grievous injuries and were treated in the hospital. But the prosecution failed to produce any materials to substantiate their injuries in the incident iv) The ‘lathi’ i.e. the weapon of offence was seized by the police but no blood stain was found in the said ‘lathi’ which according to the learned Sessions Judge further suggested a suspicious circumstance regarding accused persons’ participation in the crime. He received support from the deposition of PW 11. PW 15 Dr. Pranab Chowdhury who in his cross examination stated that there would have been possibility of presence of blood stain on the weapon of offence i.e. ‘lathi’ in case of bleeding injury. But no blood stain was found in the stickv) The weapon of offence i.e. three branches of tree were recovered from the house of Amrit Sabdakarafter three days which is a doubtful circumstance vi) Police personnel visited the place of occurrence on the same date but none of the witnesses who are closely related with the deceased did not disclose the names of the assailants. Before considering the present appeal on merits the law on the appeal against acquittal and the scope and ambit of Section 378 of CrPC and the interference by this Court in an appeal against acquittal is required to be considered. The Apex Court in the case of Chandrappa & Ors. Vrs. The State of Karnataka 4 SCC 415 after taking into consideration its earlier decisions laid down the following principlesAn appellate court has full power to review reappreciate 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 law. 3) Various expression such as "substantial and compelling reasons" "good and sufficient grounds" "very strong circumstances" "distorted conclusions" "glaring mistakes" etc are not intended to curtail extensive 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 innocence is available to fundamental principle of him under 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 further reinforced presumption of his reaffirmed and strengthened by the trial court. 5) If two reasonable conclusion are possible on the basis of the evidence on record the appellate court should not disturb the findings of acquittal recorded by the Trial Court.” In Ghurey Lal v. State of U.P. 10 SCC 450 the Apex court reiterated the said view observing that the appellate court in dealing with the cases in which the trial courts have acquitted the accused should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses and was in a better position to evaluate the credibility of the witnesses. However the findings of fact arrived at by a court can be held to be perverse if the findings have been recorded by ignoring or excluding relevant material or by taking into consideration irrelevant inadmissible material. The finding may also be said to be perverse if it is “against the weight of evidence” or if the finding so outrageously defies logic as to suffer from the vice of irrationality.4 SCC 635 Excise and Taxation Officer cum Assessing Authority v. Gopi Nath & Sons 1992 SuppSCC 312 Triveni Rubber & Plastics v. CCE 1994 SuppSCC 665 Gaya Din v. Hanuman Prasad 2001) 1 SCC 501 Aruvelu v. State10 SCC 206 and Gamini Bala Koteswara Rao v. State of A.P.10 SCC 636].” emphasis supplied) It is further observed by the Apex Court in Kuldeep Singh v. Commissioner of Police2 SCC 10 that if a decision is arrived at on the basis of no evidence or thoroughly unreliable evidence and no reasonable person would act upon it the order would be perverse. But if there is some evidence on record which is acceptable and which could be relied upon the conclusions would not be treated as perverse and the findings would not be interfered with. On cumulative reading of the aforesaid decisions we are of the opinion that duty cast upon us being first appellate court to re appreciate the entire evidence on record together with the reasoning given by the learned trial court. As an appellate court dealing with the appeal against acquittal passed by the trial court it is required to bear in mind that in case of acquittal there is double presumption in favour of the accused. Firstly the presumption of innocence is establishede under fundamental principle of criminal jurisprudence i.e. every person shall be presumed to be innocent unless he is proved to be guilty by a competent court. Secondly with the acquittal of an accused of crime the presumption of his innocence is further reinforced re affirmed and strengthened by the trial court. In view of this established rule in an appeal against acquittal the High Court shall start hearing with a different mindset that it has certain limitations in considering the evidence and materials on record as relied upon by the learned trial Judge. Further unless the view taken by the trial court is not a possible view normally the High Court should not interfere with the acquittal. There cannot be any straightjacket formula. Whether the view taken by the trial court is a possible view or not whether the findings returned by the trial court are in consonance with the evidence or not are all such matters which depend upon facts and evidence on record of each individual case. It there is some evidence which is acceptable and could be relied upon the conclusion of the trial court would not be treated as However it is made clear that there will be no such restriction for this court for hearing an appeal against conviction and sentence passed by the trial court when it shall have the full power to appreciate the evidence afresh to come to its own finding independently. 11. Mr. P. Roy Barman learned Sr. counsel appearing for the complainant contended that the learned Sessions Judge ought to have believed the versions of the prosecution witnesses irrespective of the fact that they were related to the deceased. According to learned Sr. counsel the related witnesses were found to be eye witnesses to the crime being sustained injuries to their persons out of the attack by the accused persons. Mr. Roy Barman learned Sr. counsel further argued that the discrepancies as surfaced in the statements of the prosecution witnesses were minor in nature and should be discarded by the court. It was further deliberated that there was imminent clear common intention on the part of the accused persons to kill the deceased. On the other hand Mr. H.K. Bhowmik learned counsel appearing for the accused persons defending the judgment of acquittal passed by the learned Sessions Judge at the outset drew our attention to the circumstance that the prosecution failed to prove the actual place of occurrence of the alleged crime. The scene of crime according to learned counsel for the accused persons had been shifted from the versions of the prosecution witnesses since some witnesses stated that the incident had occurred in the courtyard and some of the witnesses stated that the said incident took place in the verandah and some were found to be very categoric that the incident had occurred inside a room. He further would contend that prosecution failed to prove that any of the related witnesses sustained injuries on their persons but without any evidence. No injury reports were produced before the court to substantiate this plea of the prosecution. Important witnesses were withheld as contended by learned counsel for the appellant. Keeping in view the aforesaid rival submissions let us examine the evidence on record as put forth by the prosecution. PW 1 Niva Sabdakar deposed that while she was in her house on the day of the incident she heard hue and cry at about 7:30 am in the house of Amrit Sabdakar informed her that Litan was assaulted by the accused During cross examination she stated that she was cousin sister of victim Litan Sabdakar. She stated to the IO that Usha Sabdakartold her that accused persons along with one Munna Sabdakar assaulted Litan. She further stated that reaching the house of the victim she did not find the accused persons. PW 2 Gopal Sabdakar was the witness to the seizure of ‘lathi’. The seizure list was prepared in presence of him. He put his signaturehe rushed there and found the accused persons along with Dhirendra Sabdakar were assaulting Litan with a branch of a tree when he fell down on the ground and started bleeding from his nose and mouth. Dhirendra Sabdakar pressed his chest. He and Brajendra somehow were able to snatch away the said branch of tree from the hand of Dipankar Sabdakar Subhankar Sabdakar and Dhirendra Sabdakar. Then the son of Dhirendra Sabdakar namely Bhanu Sabdakar came and pressed the throat of Amrit Sabdakar. At that time the said respondents fled away from the place of occurrence. Litan was shifted to hospital. Being confronted with cross examination PW 8 stated that they were three brothers namely he himself father of the deceased Nripendra Sabdakar and another Jitendra. They lived in the same house where Litan was also used to stay. There was a common courtyard in his house and the house of Amrit Sabdakar. The adjacent house was of Dhirendra Sabdakar. There was also the house of Brajendra Sabdakar and Nripendra Sabdakar father of Litan Sabdakar. Litan and his father were residing in the same house. He accompanied Litan when he was taken to Fatikroy Hospital. There was a police outpost on the way to hospital but they did not report the incident to the police officials of that outpost. They told to Doctor that Litan was assaulted by the accused persons. PW 8 accompanied Litan to Kailashahar Hospital wherefrom he was shifted to GBP Hospital. In cross examination PW 8 admitted that he did not make any statement that after hearing hue and cry he rushed to the place of occurrence and he and Brajendra somehow managed to snatch away the branch of tree from the hands of the accused persons. He further stated that many people arrived at the place of occurrence. PW 9 Brajendra Sabdakar one of the three brothers of PW 6 and 8. He deposed that on 02.01.2015 at about 7:30 pm while he was in his house and after hearing hue and cry in the house of Amrit Sabdakar he rushed there and found Dhirendra Sabdakar and Dipankar Sabdakar assaulting Litan with a branch of tree. As a result Litan fell down on the ground and started bleeding through his mouth and nose. Dhirendra pressed the chest of Litan with his shoe on leg. Bhanu came and pressed the throat of Amrit Sabdakar then he and Kripesh snatched away that branch of tree from the accused persons. Other villagers also rushed to the spot and accused persons fled away. PW 9 further deposed that the branches of tree were seized by the police however he could not remember whether the branches of tree produced before the court on the date of deposition were the seized branches. During cross examination he stated that his house is two houses away from the house of Kripesh. There was courtyard in the house of Kripesh and Amrit. Litan and his father were residing in the same house which was their house earlier. He further deposed that Litan and his father was not residing in which Kripesh was residing. PW 9 further stated that he found the incident on the verandah of the hut of Amrit Sabdakar. He went first to the place of occurrence and then Kripesh came. When he went to the place of occurrence he did not find any villagers. He further stated that he did not inform the police about the incident and he was not questioned by police. Later on he stated that after the incident he was always in his house. PW 9 further stated that police went to their house on the date of the incident. On that date in the afternoon he went to the field to play and for that reason police could not meet with him. PW 9 further stated that he could not say exactly on which date the tree branches were seized by the IO. The branches of tree were in the house of Amrit after the incident. He denied the suggestion put forth by the defence that he did not come to the place of occurrence and did not find any of the accused. PW 9 further stated that he and Kripesh went to Fatikroy Outpost and informed the incident when Litan was being shifted to Kailashahar hospital from Fatikroy hospital and disclosed the names of the accused persons. Proceeding further PW 9 stated that he did not deposit or hand over the ‘lathis’ to the police at the police station from his own. PW 10 Parendra Sabdakar deposed that while he was sleeping in his house at 7:30 am on 02.01.2015 hearing hue and cry he rushed to the house of Amrit Sabdakar where he found the accused persons assaulting Litan Sarkar with a branch of tree. He got frightened and returned back to home. During cross examination he stated that Litan was his maternal uncle. His house was three houses away from the house of Amrit Sabdakar. He was not examined by the police in this connection and he gave evidence in the court for the first time. At the time of incident Litan was staying with his wife. PW 10 further stated that Litan and his father were not residing in the same mess but they were residing in nearby houses. He further stated that he saw the incident on the courtyard of Amrit Sabdakar told her that the accused persons had assaulted Litan Sabdakar. PW 4 Nripendra Sabdakar did not state to him under Section 161 CrPC that first they attacked him and pushed him down and then attacked Litan and he also did not state to himas to who assaulted him and at what place. Exbt. A i.e. statement of 161 CrPC of Kripesh Sabdakar was confirmed. PW 16 further stated in his cross examination that PW 6 Amrit Sabdakar told him that Litan was brushing his teeth by sitting in his courtyard. On close scrutiny of the evidence on record it transpires that PW 4 Nripendra Sabdakar being the father of the deceased in his evidence deposed that the assailants first attacked him at his house with ‘lathi’ causing injury to his hand. Thereafter the deceased Litan came and at that time they assaulted Litan with the ‘lathi’ on his head. Litan bled profusely and fell down on the ground. We find a different story on the version of Amrit Sabdakar and Amrit the house of Brajendra is situated. Naturally question arises about the exact place of occurrence. Again from the deposition of PW 13 Usha Sabdakar the wife of Amrit it reveals that the incident occurred at the verandah of the hut of Amrit. The prosecution has tried to make out a case that the incident had occurred at the common courtyard of PW 4 and PW 6. But from the evidence of PW 11 it is revealed that this statement is her improved version since such statement is not found in her statement recorded under Section 161 CrPC. Further from the evidence of PW 9 Brajendra it is revealed that police has visited to their house on the same date of the incident in the afternoon but they have not disclosed the incident to the police. More so on the date of incident in the afternoon he has gone to the playground to play. PW 8 Kripesh has stated that he and Brajendrahad snatched away the ‘lathi’ from the assailants. Question arises if such incident has happened then when Brajendra has not disclosed the same to the police when they have visited the place of occurrence on the same day. More surprising feature is that when such a serious incident had occurred on 02.01.2015 but the FIR was lodged on 04.01.2015. Evidence reveals that there were so many near relatives of the deceased but none of them has informed the police about the incident. PW 4 PW 6 and PW 8 have stated that they also have been beaten by the assailants but no injury reports have been produced before the court by the prosecution. PW 8 Kripesh who is said to be lodged the case has stated that while they were proceeding towards Fatikroy PHC he himself informed the Police Outpost but the police officer of that Outpost has stated that no information had passed on to them on that date. PW 8 the complainant has further stated that they disclosed the name of the assailants to the Doctor who had treated them but Dr. Sucharit Chakma of Fatikroy PHC has not been produced as witness to support the statement. Next all the related witnesses have stated that Litan was severely assaulted by all the assailants but Dr. Pranab Chowdhury PW 15 in his postmortem examination report and during his deposition has stated that the death has been caused only by one blow on the head of the deceased and there is no injury mark on other parts of the body of the Next PW 9 Brajendra Sabdakar has stated that the police had recovered three branches of tree from the house of Amritafter three days. According to us this is also a doubtful circumstance regarding recovery of the weapons of offence which are allegedly used by the assailants. Even the three branches have not been properly identified by the The above factors have led the trial court to record a finding that the prosecution has failed to substantiate the charges levelled against the accused persons beyond reasonable doubt. Further according to the related witnesses many of the villagers had rushed to the spot and on their arrival the assailants had left the place of occurrence. But none of the villagers came forward to support the versions of these related witnesses. PW 3 Sujit Sabdakar appears to be an independent witness who has stated that he came to know about the incident of assault from Ketaki Sabdakar and Phani Sabdakar who witnessed the incident of alleged assault but the prosecution has failed to produce and examine them. It further appears that prosecution has further failed to unearth the actual fact by adducing cogent evidence as to why the assailants had attacked Litan or his father on the date and time. In our opinion discrepancies in the prosecution case are manifolds which influenced the learned Sessions Judge for acquitting and extending the assailants the benefit of doubt. In our opinion the view as taken by the learned Sessions Judge in acquitting the accused persons that is appear to be a possible and plausible and for the reasons as afore discussed the view of the learned Sessions Judge cannot be held to be perverse. True it is this in an appeal against acquittal powers of the appellate court are as wide as that of the trial court and in exercise of our appellate jurisdiction we can review re appreciate and re consider the entire evidence brought on record by the parties and can come to our own conclusion on fact as well as on law. But we are not un oblivious of the well neigh principle that if two views are possible on the basis of evidence on record and one favourable to the accused has been taken by the trial court the same should not be disturbed in exercise of our appellate jurisdiction. Firstly the instant appeal starts with the double presumption of innocence in favour of the accused persons available to them under the fundamental principle of criminal jurisprudence that every person should be presumed to be innocent unless he is found to be guilty by a competent court of law. Secondly the accused persons having secured an acquittal the presumption of their innocence is reinforced reaffirmed and strengthened by the trial court. According to us as an appellate court it is not open for us to interfere with the findings of fact recorded by the learned trial Judge unless such findings reached by him suffer from perversity or incompetence on his part. We have taken note of the decision of Rajkishore Purohit Vrs. State of Madhya Pradesh & Ors. 9 SCC 483 as referred to by Mr. P. Roy Barman learned Sr. counsel appearing for the appellant but on facts we cannot place reliance upon the said decision to reverse the finding of acquittal on benefit of doubt. In Rajkishorethe High Court has altered the finding of conviction and sentence passed by the trial court acquitting the accused persons but the Supreme Court has held that the High Court has committed an error in appreciating and negating the evidence on the basis of which the learned trial Judge convicted and sentenced accused persons. The case in our hand is not such a case where the decision of the trial court is based on unacceptable and unreliable evidence rather there are substantial and acceptable evidence to return the findings of acquittal. In Kanhaiya Lal & Ors. etc. Vrs. State of Rajasthan etc. 2013) 5 SCC 655 the Apex Court held that unless there are substantial and compelling reason judgment of acquittal cannot be overturned. In view of the material contradictions and discrepancies discussed in the preceding paragraphs and keeping in mind the settled proposition of law on the subject the findings arrived at by the learned trial Judge cannot be said to be perverse and there is no good and compelling circumstances to overturn the judgment of acquittal of accused persons on benefit of doubt. For the reasons stated and discussed here in above the present appeal fails and deserves to be dismissed and is accordingly dismissed. We give our stamp to the judgment and order of acquittal of the accused persons on benefit of doubt as recorded by the learned Sessions Judge Unakoti Judicial District vide judgment dated 18.04.2018 in case No. Sessions Trial 21(U K) of 2015. Send down the LCRs. ARINDAM LODH) J AKIL KURESHI) CJ 

Summary: Unless there are substantial and compelling reason, judgment of acquittal cannot be overturned. An appellate court, is not open to interfere with the findings of fact recorded by the learned Trial Judge unless such findings reached by him suffer from perversity or incompetence on his part. This was held in Kripesh Sabdakar V. The State of Tripura &amp; Ors[CRL.A 12 OF 2018] in the High Court of Tripura by division bench consisting of JUSTICE MR. AKIL KURESHI and JUSTICE ARINDAM LODH. Facts are that the appellant had lodged a complaint against assault of his nephew by the respondents. Appeal under S.378(4) of the Criminal CrPC read with S.372 of CrPC had been filed by the appellant against order of acquittal by the learned Sessions Judge. The counsel for the appellant submitted that the learned Sessions Judge ought to have believed the eye witnesses. He Further argued that the discrepancies in the statements of the prosecution witnesses were minor in nature and should be discarded by the court and there was imminent clear common intention on the part of the accused persons to kill the deceased. The counsel for respondent contended the prosecution failed to prove the actual place of occurrence of the alleged crime. He further contended that prosecution failed to prove that any of the related witnesses sustained injuries on their persons, and injury reports were produced before the court. The court discussed the law on the appeal against acquittal and the scope and ambit of Section 378 of CrPC and made reference to the Apex court judgment in Chandrappa &amp; Ors. Vrs. The State of Karnataka, where in the court had held that, “(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 innocence is available to him under the fundamental principle 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 innocence is further reinforced, reaffirmed and strengthened by the trial court.” The court also referred to the judgement of Ghurey Lal v. State of U.P, wherein the following observations were made, “In dealing with the cases in which the trial courts have acquitted the accused, should bear in mind that the trial court’s acquittal bolsters the presumption that he is innocent. The appellate court must give due weight and consideration to the decision of the trial court as the trial court had the distinct advantage of watching the demeanour of the witnesses, and was in a better position to evaluate the credibility of the witnesses.”