Appeal
1. This appeal assails the judgment and order of the High Court of Uttarakhand at Nainital (in short, “the High Court”), dated 26.07.2012, in Government Appeal No.4 of 2022. By the said order, though the delay in preferring the appeal against the judgment and order of acquittal dated 13.12.2011 passed by the third Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act), C.B.I., Dehradun (for short “the trial court”) in C. No. RC-5/87-SIU.II was condoned, the application seeking leave to appeal under section 378 (3) of the Code of Criminal Procedure, 1973 (in short, “the Code”) was rejected and in consequence the Government Appeal was dismissed.
Analysis
25. We have considered the rival submissions and have perused the record.
26. At the outset, we may observe that no doubt the judgment and order of the High Court appears a bit cryptic but that by itself need not be a ground for us to set aside the order and remit the matter to the High Court, particularly, when we have the relevant record to assess the merit of the prosecution case. More so, because the incident is of the year 1987 and the appeal has remained pending since more than a decade. In such circumstances, if we remit the matter to the High Court only to rewrite the judgment, it would be travesty of justice. Consequently, as the trial court has dealt with the matter at great length and has discussed each and every piece of evidence on which the prosecution seeks to rely, it would be apposite for us to assess whether, by not granting leave to appeal against the judgment of the trial court, there has been a miscarriage of justice.
27. It is trite law that in an appeal against acquittal, the power of the appellate court to reappreciate evidence and come to its own conclusion is not circumscribed by any limitation. But it is equally settled that the appellate court must not interfere with an order of acquittal merely because a contrary view is permissible, particularly, where the view taken by the trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record.
28. In the instant case, the prosecution case rested on ocular account as well as on certain circumstances. The ocular account is provided by PW-3, PW-6 and PW-15. PW-3 and PW-6 were traveling with the deceased, though on a separate scooter. They, therefore, had the opportunity to witness the incident. According to them, while they were traveling on their respective scooters, torch light was flashed at them by men in police uniform. As a result, deceased’s scooter skidded. Thereafter, when gun shots were fired they escaped and came to the village. On information, a large number of persons from the village arrived at the spot. What is important is that neither PW3 nor PW6 could identify any of the three accused. They did not depose that the three policemen involved in the crime were those who were facing trial. Thus, there is no infirmity, much less perversity, in the view taken by the trial court that the testimony of PW-3 and PW-6 is not of much help to the prosecution qua the three accused facing trial.
29. With regard to the testimony of PW-15, detailed reasons have been recorded by the trial court to hold him unreliable and unworthy of credit. Moreover, PW15’s presence is not confirmed by PW3 and PW6. Otherwise also, PW15’s conduct of remaining silent for over a week creates a lingering doubt in our mind as to whether he is a witness set up on advise, particularly, when we notice that his first statement was not to the investigating agency but made on an affidavit prepared by a lawyer, who simultaneously prepared three affidavits identically worded. The trial court noticed all these facts as also that PW-15 was lying when he stated that he went alone to get the affidavit prepared. The trial court also noticed that all the three affidavits were prepared on stamp papers, consecutively numbered, bought from the same vendor and the affidavits were sworn in quick succession giving rise to a definite conclusion that they were prepared by an advocate. The trial court also noticed that the conduct of PW15 was a bit unusual in the sense that he made no disclosure to anyone including the father of the deceased yet, he straightaway went to swear and dispatch an affidavit by post to a higher officer of the police even though, by that time, the investigation had been transferred to the CB-CID from the local police and, therefore, there was no threat from the local police. In these circumstances, if the trial court discarded the testimony of PW-15, in our view, the same was justified.
30. Adverting to the proven circumstances, what transpires is that the witnesses are consistent that there was a police action on that fateful night. Assuming that it is true that in the night there was an exchange of fire between men in uniform and members of the public, but there is no reliable evidence that the exchange of fire was with a view to kill. Moreover, the deceased did not die of a rifle bullet injury. Rather, he died from a .12 bore gunshot which could not be ascribed to rifles issued to the accused persons. Therefore, even if empties of rifle cartridges relatable to service rifles issued to the accused were found at the spot, culpability of the accused persons in causing death of the deceased is not inferable. Further, there is no recovery of a .12 bore gun from any of the accused persons facing trial. Notably, after the incident, villagers congregated at the scene of crime. The police arrived at the spot and took the injured to the hospital. According to the prosecution evidence, the accused persons were present at the spot during this period. Therefore, if they were really involved they could have been identified by either PW3 or PW6, but there was no such event. Further, the continued presence of the accused at the spot is a circumstance which goes in favour of the accused, being a conduct that belies a guilty mind.
31. Another circumstance which goes in favour of the accused is that, according to the prosecution’s own case, the accused persons, three in number, had a rifle each with 50 rounds. Admittedly, some of the empty cartridges found at the spot, as per the ballistic expert report, were not fired from the rifle issued to the accused. This is indicative of presence of some other rifle also. Whose rifle it was, the prosecution evidence is silent. Moreover, if the accused were to use their rifle to fire shots why would they use a country made pistol to inflict injury to the deceased.
32. The circumstance that the accused persons were required to patrol that area and had left the police station for that end on that fateful night is a circumstance which is not conclusive as to turn the tables on the accused, inasmuch as the patrolling area covered two villages. It may be possible that the accused arrived at the spot late, when the incident had already taken place, and to chase away the miscreants, fired shots from their service rifles. Be that as it may, once the ocular account of PW-15 stood discarded, to clinch a conviction on the basis of circumstances, the circumstances ought to have formed a chain so far complete as to indicate that in all human probability it were the persons facing trial and none else who committed the crime. Here the circumstances found proved do not constitute a chain so far complete as to indicate that in all human probability it were the accused persons and no one else who committed the crime. In such a situation, there was no option for the trial court but to extend the benefit of doubt to the accused.
Party
CENTRAL BUREAU OF INVESTIGATION vs. SHYAM BIHARI & OTHERS – Criminal Appeal No.413 of 2013 – July 17, 2023.
https://main.sci.gov.in/supremecourt/2013/4217/4217_2013_1_1501_45164_Judgement_17-Jul-2023.pdf
CBI vs. Shyam Bihari 4217_2013_1_1501_45164_Judgement_17-Jul-2023
