Chander Bhusan Barowalia JUDGMENT
Tarlok Singh Chauhan, J.
1. Aggrieved by the order of acquittal passed by the learned Additional Sessions Judge, Fast Track Court, Chamba, District Chamba (H.P.), in favour of the respondent, who had been charged for the commission of the offence punishable under Section 302 of the Indian Penal Code (for short 'IPC'), the State has filed the instant appeal.
2. The case of the prosecution, in brief, is that on 02.08.2009, there was a function on the occasion of retirement in the house of Musadi, in village Bhelu. About 500-600 people had come to attend this function including the accused, deceased, wife and sister of the deceased. A brawl allegedly took place between the accused and the deceased in the midnight. Thereafter, at about 5.15 a.m. on 03.08.2009, the deceased Bhagat Ram came to his house which was at a distance of eight metres from the house of Musadi Ram. The complainant was standing in the verandah of his house, while the deceased was standing on his 'kotha' (mud lintel), then at about 5.30 a.m., the accused appeared and pushed him (deceased Bhagat Ram) from the 'kotha'. Resultantly, he fell down and died on the spot. Thereafter, the accused gave a challenge to Misso Devi, the sister of the deceased, who was sleeping in the house to come out and threatened that he would kill her in the same manner he had killed her brother. Thereafter, the accused fled away from the spot. When the complainant and his sister came down, blood was oozing out from the head and face of the deceased and he was dead at that time. Thereafter, the complainant intimated Smt. Badlu, wife of the deceased and other villagers. Smt. Badlu, Ami Chand and Singhu went to the Vice President of the Panchayat and intimated him about the incident, who, in turn, intimated the police over telephone.
3. On receipt of information, daily diary report Ex. PW 16/A was recorded in Police Station, Kihar and ASI Naseeb Singh along with SPOs Gurdhian Singh and Bhanu Parshad rushed to the spot, where the complainant got recorded his statement under Section 154 Cr.P.C. Ex. PW 1/A before ASI Naseeb Singh, who, in turn, sent the same to the police station, where FIR Ex. PW 11/A came to be registered. Photographer was called on the spot, who took photographs Ex. PW 4/1 to Ex. PW 4/7. Blood stained earth and stones were lifted from the spot and taken into possession vide memo Ex. PW 1/B. Site plan Ex. PW 18/A, inquest reports Ex. PW 1/B and Ex. PW 1/C were also prepared. Dead body of the deceased was taken into possession and sent for post mortem. Statements of the witnesses were recorded, accused was arrested and it was found that he was having injury mark over his left eye, therefore, he was got medically examined and his MLC was obtained.
4. On 05.08.2009, the accused made a disclosure statement under Section 27 of the Indian Evidence Act regarding the place where he had concealed the clothes which he had been wearing on the date of occurrence and got recovered these clothes vide memo Ex. PW8/A. Site plan of the place of recovery of clothes was prepared. During investigation, blood stained earth, stones and clothes were sent to FSL and report of FSL was obtained.
5. After completion of investigation, challan was prepared and presented in the Court. Upon consideration, charge against the accused for the commission of offence punishable under Section 302 of IPC was framed to which he pleaded not guilty and claimed trial.
6. The prosecution examined as many as 20 witnesses and thereafter the accused was examined under Section 313 Cr.P.C. The defence of the accused was that of denial simpliciter and he claimed that he had been falsely implicated, however, no defence evidence was led.
7. The learned Additional Sessions Judge after recording the evidence and evaluating the same acquitted the accused, constraining the State to file the instant appeal.
8. It is vehemently contended by Shri Vinod Thakur, learned Additional Advocate General that the findings recorded by the learned Additional Sessions Judge are perverse inasmuch as he has not taken into consideration the statements of the prosecution witnesses, more particularly, the statements of PW-1 Chet Ram, who was none other than the brother of the deceased. PW-2 Smt. Badlu, wife of the deceased, PW-6 Misso Devi, sister of the deceased and PW-5 Shri Chamaru Ram, who was singer in the function and thereby reached a wrong conclusion.
9. On the other hand, Shri N.K. Thakur, Senior Advocate assisted by Shri Divya Raj Singh, Advocate, for the respondent, would vehemently argue that the findings recorded by the learned Additional Sessions Judge are based upon correct appreciation of evidence available on record and since there is no perversity in the findings recorded by the learned Additional Sessions Judge, the same need to be affirmed and upheld by this Court.
We have heard the learned counsel for the parties and have gone through the records of the case.
10. At the outset, it may be observed that instant is an appeal against the order of acquittal and as regards the scope of interference in appeal arising out of an order of acquittal, it is well established principle of law, consistently re-iterated and followed by all the Courts, is that while dealing with a judgment of acquittal, an appellate Court must consider the entire evidence on record, so as to arrive at a finding as to whether the views of the trial Court are perverse or otherwise unsustainable. Even though the appellate Court is entitled to consider, whether in arriving at a finding of fact, the trial Court has placed the burden of proof incorrectly or failed to take into consideration any admissible evidence and/or had taken into consideration the evidence brought on record contrary to law; the appellate Court should not ordinarily set-aside a judgment of acquittal in a case where two views are possible, though the view of the appellate Court may be the more probable one. The trial Court which has the benefit of watching the demeanour of the witnesses is the best judge of the credibility of the witnesses.
11. Every accused is presumed to be innocent unless his guilt is proved. The presumption of innocence is a human right and subject to the statutory exceptions, the said principle forms the basis of criminal jurisprudence of this Country. The appellate Court has to bear in mind the presumption of innocence of the accused and further that the trial Court's acquittal bolsters the presumption of his innocence. Therefore, interference with the decision of the trial Court cannot be interfered with in a casual or cavalier manner where the other view is possible, the same should be avoided, unless there are good reasons for such interference. It is only in exceptional cases where there are compelling circumstances and the judgment under appeal is found to be perverse, that the appellate Court can interfere with the order of acquittal.
12. As regards the same, it can be inferred and drawn where the Court has arrived at a finding of fact by ignoring or excluding the relevant material or has taken into consideration the irrelevant/inadmissible material. A finding may 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.
13. The law in this regard has been articulately and lucidly considered by the Hon'ble Supreme Court in Ghurey Lal v. State of U.P. MANU/SC/3223/2008 : (2008) 10 SCC 450 wherein after taking into consideration the entire law on the subject, it proceeded to lay down the following principles with regard to overruling or otherwise disturbing the trial Court acquittal:
"1. The appellate court may only overrule or otherwise disturb the trial court's acquittal if it has "very substantial and compelling reasons" for doing so. A number of instances arise in which the appellate court would have "very substantial and compelling reasons" to discard the trial courts decision. "Very substantial and compelling reasons" exist when:
i) The trial courts conclusion with regard to the facts is palpably wrong;
ii) The trial court's decision was based on an erroneous view of law;
iii) The trial court's judgment is likely to result in "grave miscarriage of justice";
iv) The entire approach of the trial court in dealing with the evidence was patently illegal;
v) The trial court's judgment was manifestly unjust and unreasonable;
vi) The trial court has ignored the evidence or misread the material evidence or has ignored material documents like dying declarations/report of the Ballistic expert, etc.
vii) This list is intended to be illustrative, not exhaustive.
2. The Appellate Court must always give proper weight and consideration to the findings of the trial court.
3. If two reasonable views can be reached - one that leads to acquittal, the other to conviction - the High Courts/appellate courts must rule in favour of the accused."
14. Bearing in mind the aforesaid exposition of law and parameters laid therein, we now proceed to consider the merits of the case.
15. The FIR in this case was lodged by PW-1 Chet Ram, brother of the deceased. He stated that quarrel between deceased and respondent had taken place at a function in the house of Musadi on 02.08.2009 and in the morning on 03.08.2009, the deceased had come to his house. He further stated that at about 5.30 a.m., the deceased was standing on his 'kotha' when the respondent appeared and pushed him down from 'kotha', as a result whereof, the deceased fell down on the path. At this time, this witness was present in the verandah of his house which he stated to be adjacent to the house of the deceased. As per him, the respondent after pushing the deceased again went to the house of Musadi where the retirement function had taken place on the previous night. He further stated that he informed the other people of the locality and also apprised Badlu, wife of the deceased. He further deposed that his sister Misso (PW-6), who had come to attend the function and had also come to his house, questioned the respondent why he killed his brother and respondent, in turn, threatened her that she would also meet the same fate if she comes out. He further goes on to state that Badlu (PW-2), her son and Misso went to the police station and the police came to the spot where they recorded his statement Ex. PW-1/A.
16. Now, in case the statement of PW-1 is minutely analyzed, then his presence on the spot infact becomes doubtful. In case, the respondent had pushed the deceased, who was none other than the younger brother of this witness, his normal reaction would have been to chase the respondent and would not have allowed him to leave the scene and would have prevented him from leaving the site of occurrence. His presence on the spot further becomes doubtful, especially, when it has come on record that the respondent after pushing the deceased had gone to the house of Musadi. That apart, in his statement under Section 154 Cr.P.C., PW-1 claims that his brother was singing songs at about 5.30 a.m., when the respondent appeared and pushed him with an intention to kill him and then respondent gave 'lalkaras' to Misso, who was sleeping in his house to come out and proclaimed that he had killed her brother and she would also be not spared. In his entire version, he has not disclosed about there being any enmity or hostility of the respondent against his sister Misso, then why out of all the persons residing in the house of this witness at that time, would the respondent only challenge Misso, why no threat was given to this witness or Badlu, who was wife of deceased. That apart, why this witness being a male, did not accompany Badlu, the wife of the deceased and Misso, who happens to be the sister of the deceased, to the house of Pradhan, is also not forthcoming in his statement. After all, as per his version, he is the sole eye witness to the incident and normally it is always the man folk in the area, who would take the lead and inform the police.
17. Apart from the above, this witness in his cross examination had stated that there had been a quarrel between respondent and the deceased, as was informed by Chamaru Ram and Khem Raj, but the said Chamaru (PW-5) had not supported the case of the prosecution. Even otherwise, the statement of this witness Ex. PW-1/A is silent that Chamaru and Khem Raj had apprised him about the quarrel. This fact has neither been stated by this witness in the examination in chief nor recorded in his statement Ex. PW-1/A, rather he had stated in his examination in chief that he informed Badlu (PW-2) after the incident. Had he shouted, not only the persons residing in his house, but those residing in the vicinity, would have come out. Intriguingly, this witness claimed that no blood was lying in the backside of his house and denied that Badlu (PW-2) had visited the police station thrice with regard to the said blood which was lying on the backside of his house. Whereas, Badlu (PW-2) had categorically admitted that she visited the police station thrice to enquire about the said blood. This fact assumes importance because if the deceased had died instantaneously after fall, then why blood was lying behind his house. Even, the Investigating Officer has not offered any explanation about this effect.
18. Adverting to the statement of Smt. Misso, who appeared as PW-6, it would be noticed that she stated that she was in the house of PW-1 on the fateful morning along with her mother. She claimed to have been sleeping and then heard a loud noise, as a result whereof, she got up and found the respondent there while her brother (deceased) was lying below the 'kotha'. She then questioned the respondent why he killed her brother, who in turn, threatened her that she would meet the same fate in case she comes out and then respondent left to the house of Musadi, which was at a distance of about 100 metres. According to her, PW-1 Chet Ram, Badlu and other villagers also appeared there. Significantly, what is more important in her statement is that she stated that she found respondent sitting on the 'kotha' (lintel) from where the deceased was stated to have been pushed down. Obviously, this part of the statement cannot be taken in its face value and has to be taken with a pinch of salt as it is unimaginable as to why a person after committing the crime would stay at the scene of crime. That apart, the story put forth by this witness contradicts PW-1, who in his cross examination stated that after pushing his brother, the respondent had gone upwards. Even her conduct is questionable as she stated that she did not raise any alarm to apprehend the respondent. What is more strange is that in her entire statement, PW-6 is totally silent about the respondent having given any challenge calling her to come out, as was stated by PW-1. Significantly, she has also not stated anything that she was having any enmity with the respondent and since this witness has contradicted PW-1 on material particulars, even her presence on the spot becomes highly doubtful. This is all the more so when she had not offered any explanation as to why her mother had not come out. After all, no mother would prefer to stay inside the house when her son had been done to death by pushing him down from the lintel.
19. Now, adverting to the statement of PW-2 Badlu, wife of the deceased. She stated that she along with her husband (deceased) had gone to the house of Musadi, but he came twice to the house to see the children and finally came at about 5.30 a.m. and was on the roof (lintel) when the respondent appeared there and pushed him down from the roof. According to her, she was apprised of this fact by PW-1 and after visiting the spot, she found her husband dead and noticed injuries on his head and that the blood was oozing out from his head and face. She then went to the Pradhan, who, in turn, intimated the police. In her cross examination, she stated that she did not see her husband coming from the function and had also not seen the respondent at the spot. Though, PW-6 Misso, who was sleeping in the house of PW-1, stated that she had heard the sound of fall of deceased, but PW-2 did not hear the said sound even though she claimed to be in the same premises. She even did not hear the hue and cry of PW-1 or threats given by respondent to PW-6 Misso.
20. As observed earlier, what is more significant in her statement is that she has categorically stated that blood was lying on the backside of house of PW-1, which was at a distance of 20 feet from the place where the dead body was lying. She further stated that she had visited the police station thrice in connection with the blood spots.
21. Now, in case the spot map Ex. PW-18/A, is minutely scanned, then it would be revealed that the deceased was pushed down from the corner at point 'G' shown in the map. The body of the deceased is shown next to the old lintel of PW-1 Chet Ram and as per the spot map under no circumstance or eventualities could the deceased have been pushed down from the lintel of his house so as to reach at point 'G'. Infact, one had to be bodily lifted from the lintel of the deceased to the place 'G' as shown in the spot map.
22. Apart from the above, it has specifically come on record that there was no previous enmity between respondent and the deceased and the only motive of murder as per the prosecution was an alleged quarrel that had allegedly taken place at the house of Musadi where the respondent including the deceased had been dancing. This fact was introduced by PW-5 in his, examination in chief, who was present in the function at the house of Musadi. He also stated that respondent and the deceased were drunk and pushed each other in the function and thereafter the deceased was made to sit, whereas, the respondent kept on dancing. It is only in the morning that this witness learnt about the death of Bhagat Ram. He categorically stated that no injury was sustained by anyone and was, therefore, declared hostile by the prosecution. He denied that the respondent had fallen down while dancing or sustained any injury or any quarrel had taken place between deceased and respondent or the respondent had chased the deceased on 03.08.2009 at about 5 a.m. or that the respondent had threatened the deceased with dire consequences. Rather, it has come in the cross examination of this witness by defence counsel that the respondent remained present at the house of Musadi till 6.00 a.m. Even his version under Section 161 Cr.P.C. is silent about the respondent having pushed down the deceased.
23. At this stage, it would be relevant to note that even though the prosecution has examined Nar Singh son of Shri Musadi, as PW-3, to prove the retirement function in their house, but even this witness has rendered no assistance to the prosecution story. Rather, he has stated that he was informed by the people that the respondent sustained injury on his head and when he met him, blood was oozing out from his head. He had been complaining that he was not allowed to dance. Notably, this witness does not even remotely state about any quarrel having taken place between deceased and the respondent or that the deceased had inflicted injury on the person of the respondent. Even though, this witness was declared hostile by the prosecution, but he maintained that neither any quarrel had taken place between deceased and the respondent nor he intervened.
24. Above all, it would be noticed that Musadi Ram in whose house the retirement party was being organized, has not even been cited as a witness.
25. Now, adverting to the medical examination conducted upon the respondent, as per MLC Ex. PW-11/A, abrasion was found over his left eye brow, but then neither PW-3 nor PW-5 have stated that it was the deceased, who was responsible for having caused the said abrasion.
26. Therefore, in the given circumstances, no fault can be found with the findings recorded by the learned Additional Sessions Judge whereby he concluded that the motive of murder has not been substantiated by the prosecution.
27. The Hon'ble Supreme Court in State of Gujarat v. Kishanbhai and others, MANU/SC/0004/2014 : (2014) 5 SCC 108 has categorically held that on the culmination of a criminal case in acquittal, the investigating/prosecuting official(s) concerned responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse. It is apt to reproduce the relevant observations in the aforesaid case, which read thus:-
"21. On the culmination of a criminal case in acquittal, the concerned investigating/prosecuting official(s) responsible for such acquittal must necessarily be identified. A finding needs to be recorded in each case, whether the lapse was innocent or blameworthy. Each erring officer must suffer the consequences of his lapse, by appropriate departmental action, whenever called for. Taking into consideration the seriousness of the matter, the concerned official may be withdrawn from investigative responsibilities, permanently or temporarily, depending purely on his culpability. We also feel compelled to require the adoption of some indispensable measures, which may reduce the malady suffered by parties on both sides of criminal litigation. Accordingly we direct, the Home Department of every State Government, to formulate a procedure for taking action against all erring investigating/prosecuting officials/officers. All such erring officials/officers identified, as responsible for failure of a prosecution case, on account of sheer negligence or because of culpable lapses, must suffer departmental action. The above mechanism formulated would infuse seriousness in the performance of investigating and prosecuting duties, and would ensure that investigation and prosecution are purposeful and decisive. The instant direction shall also be given effect to within 6 months."
28. Adverting to the facts, it would be noticed that the Investigating Officer PW-18 ASI Naseeb Singh had denied the existence of blood lying on the backside of house of PW-1 Chet Ram, whereas, it has specifically come in the statement of PW-2 Badlu, wife of the deceased that she had thrice visited the police station in connection with the blood that was lying behind the backside of house of PW-1. The Investigating Officer did not care to carry out any measurements of 'kotha' which as rightly observed by the learned Court below renders the spot map highly doubtful. Moreover, in case the deceased was given any push, as alleged by the prosecution, then under no circumstance could the body of the deceased be found at place 'G' because as per the prosecution case, Bhagat Ram died instantly at the spot. Not only this, even mother of the deceased has neither been associated in the investigation nor cited as a witness.
29. As per the records, there are about 16-17 houses in the village of the deceased, but surprisingly, even the close neighbours were not questioned or associated in the investigation except Chamaru and Khem Raj. Not only this, even Musadi in whose house the retirement function was being celebrated, even though a material and important witness to the case of the prosecution, was not cited as a witness. The learned Court below has rightly concluded that the investigation has been carried out in a slipshod manner and vital evidence has not been collected.
30. We, thus, have no hesitation to conclude that the acquittal in this case is a consequence of shoddy investigation and slovenly assimilation of evidence and, therefore, the entire gamut of the case requires to be thoroughly probed and enquired into by the Home Department of the State. Ordered accordingly. The State is directed to take appropriate departmental action against ASI Naseeb Singh and take it to its logical end as expeditiously as possible and preferably before 31st December, 2018.
31. From the above discussion and for the foregoing reasons, we find no merit in this appeal and the same is accordingly dismissed. Bail bonds furnished by the respondent are discharged.
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