Full Judgment Text
2023 INSC 623
REPORTABLE
IN THE SUPREME COURT OF INDIA
CRIMINAL APPELLATE JURISDICTION
CRIMINAL APPEAL NO.413 OF 2013
CENTRAL BUREAU OF INVESTIGATION …Appellant
Versus
SHYAM BIHARI & OTHERS …Respondents
J U D G M E N T
MANOJ MISRA, J.
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
Signature Not Verified
Digitally signed by
Sanjay Kumar
Date: 2023.07.17
16:27:13 IST
Reason:
Government Appeal was dismissed.
Criminal Appeal No.413 of 2013 Page 1 of 21
Introductory Facts
2. In the night/late evening of 24.06.1987, one
Raj Kumar Baliyan (in short, “the deceased”) was
killed. A first information report (FIR) was lodged by
Pramod Kumar Tyagi (PW-6) alleging, inter-alia, that
while he and Sudeep (PW-3), on one Scooter, and Raj
Kumar Balyan (the deceased) on another Scooter,
were travelling from Muzaffarnagar to Meerapur to
attend a marriage, near Bhatoda turn, at about 9.30
pm, in the light of the Scooter, they saw three
policemen standing on the road. One of them had a
Danda (stick) whereas the other two were carrying
rifles. The person who had the Danda flashed a torch
light on them. As a result, they lost control of their
respective scooters, which skidded and fell. One of
the policemen exhorted to shoot to kill. In
consequence, shots were fired hitting the deceased,
who collapsed at the spot. PW-3 and PW-6, however,
managed to escape to the village. On information,
villagers arrived at the scene of crime and so did the
police. In the presence of police the deceased was
rushed to the hospital but he succumbed to his
injuries on the way. Thereafter, the dead body was
taken to the hospital and after leaving the body there,
Criminal Appeal No.413 of 2013 Page 2 of 21
PW-6 lodged the FIR, which was registered as Case
Crime No.48/87 at P.S. Sikhera.
3. Another version of the incident was lodged at
the instance of one Mahindra Singh on 25.06.1987,
which gave rise to Case Crime No.48A/87. There it
was alleged, inter-alia, that on 26.05.1987 a robbery
took place in the village wherein one person died. As
criminals were regularly visiting the village since
then, a constant vigil was maintained by the villagers
as well as the police which had been patrolling the
area. It was alleged therein that while three police
constables were patrolling the village and people of
the village were keeping a watch in the night of
24.06.1987, at about 9.00 pm, a man came and
raised an alarm that 5-6 criminals were about to
come to the village on motorcycles and scooters. On
receiving this information, the villagers and the
policemen became alert. At about 9.30 pm, a
motorcycle came and stopped a little ahead of
Bhatoda turn. Thereafter, two scooters came at a fast
speed. When torch lights were flashed and the
scooters were signalled to stop, the rider fired a shot
with a view to kill the villagers and the policemen.
However, one of the scooters skidded and the other
stopped. The criminals however started running away
Criminal Appeal No.413 of 2013 Page 3 of 21
while firing shots. As a result, there was retaliatory
fire by the police and the villagers. One of the
criminals was chased and nabbed by the villagers. He
was also beaten by them. At that time, from P.S.
Sikhera, an Inspector arrived in an Ambassador Car.
He interrogated the criminal. Later, several villagers
arrived and informed that the person caught is Raj
Kumar, Advocate. Thereafter, Raj Kumar was taken to
the hospital. At the same time, the spot was
searched and two empty shells of cartridges were
recovered from the spot.
4. The investigation of the aforesaid two cases
was assigned to CB-CID and later, for further
investigation, to Central Bureau of Investigation (CBI)
upon which, CBI registered a case No.RC-5/87-
SIU.II. After investigation, CBI submitted a charge-
sheet against the accused persons (the respondents
herein) under Section 302 read with Section 34 of the
Indian Penal Code, 1860 (in short, “I.P.C.”) After
taking cognizance on the police report, the Court of
First Additional Sessions Judge, Dehradun charged
Anil Kumar, Shyam Bihari and Arshad Ali (the
respondents herein) for committing offence
punishable under Section 302 read with Section 32
Criminal Appeal No.413 of 2013 Page 4 of 21
I.P.C. The accused pleaded not guilty and claimed
trial.
5. During the trial, the prosecution examined 33
witnesses and produced various documentary
evidences with regard to GD entries, seizure memos,
site plan, forensic reports, autopsy report, etc.
Various material exhibits such as articles seized
during investigation were produced and exhibited
during trial.
6. After closure of prosecution evidence, the
incriminating circumstances appearing in the
prosecution evidence were put to the accused for
recording their statement under section 313 of the
Code. In their statement, under section 313 of the
Code, the accused denied the incriminating
circumstances appearing against them and claimed
that they have been falsely implicated and made
scapegoat.
Nature of the Prosecution Evidence
7. The prosecution sought to bring home the
charge against the aforesaid three accused by leading
evidence to the following effect: -
(i) On the date, time and place of the
incident, the three accused were on a
picket duty as reflected by the GD
Criminal Appeal No.413 of 2013 Page 5 of 21
Entries made at the police station
concerned;
(ii) The GD Entries reflected that they had
departed from the police station with a
rifle and 50 cartridges each;
(iii) The ballistic expert report confirmed that
some of the empty rifle cartridges
recovered from the spot were fired from
the service rifles of the accused thereby
confirming their presence at the spot;
(iv) PW-3 and PW-6 narrated that the shots
were fired by policemen who flashed
torch light at the scooter riders;
(v) PW-15 (Shyam Singh) confirmed
participation of the three accused in the
crime and proved that on exhortation by
the other two accused, Anil Kumar took
out a country made pistol and had fired
a shot at the deceased;
(vi) The villagers who had arrived at the spot
after the incident had noticed that the
three accused along with others were
present at the spot;
(vii) Police set up a false cross version of the
incident, namely, Case Crime No.
Criminal Appeal No.413 of 2013 Page 6 of 21
48A/87, which indicated that there was
a deliberate attempt on the part of the
police to save themselves from the
clutches of law.
Trial Court Findings
8. The trial court found the testimony of PW-3
and PW-6 inconsequential because the two witnesses
did not state that the policemen involved in the crime
were the ones facing trial. Rather, they admitted that
they had not seen the accused before and that the
accused were not put for identification.
9. As regards eye-witness Shyam Singh (PW15),
the trial court found him unreliable for the following
reasons: (a) PW15 made no prompt disclosure of his
knowledge about the incident and the culprits either
to the police or to the villagers, rather, after a lapse of
several days, chose to swear an affidavit and dispatch
it by post to a higher official of the police; (b) three
affidavits, including that of PW15, making the same
disclosure in identical language, sworn on the same
day, at more or less the same time, and prepared by
the same lawyer, were received by the police after a
Criminal Appeal No.413 of 2013 Page 7 of 21
few days; and (c) PW15 lied that he was alone when
he went to swear the affidavit.
10. Having discarded the eye witness account of
PW-15 and finding the eye witness accounts of PW-3
and PW-6 inconsequential to inculpate the accused,
the trial court proceeded to address other
circumstances on which the prosecution relied. These
were: (a) few empty cartridge shells lifted from the
spot were found to have been fired from the rifles
issued to the accused; and (b) there was an attempt
to set up a false narration of the incident vide Case
Crime No.48A of 1987.
11. In respect of some of the empty cartridges
matching with service rifles of the accused, the trial
court noticed that out of four .303 cartridges
recovered from the scene of crime, one was fired from
the rifle of accused Anil, one from the rifle of accused
Shyam Bihari whereas the remaining two cartridges
were not fired from service rifles of any of the three
accused persons. Thus, it was not clear from the
prosecution evidence as to from whose rifle the
remaining two bullets were fired. This discrepancy,
according to the trial court, rendered the prosecution
version against the accused doubtful because there
could be the hand of some other person also.
Criminal Appeal No.413 of 2013 Page 8 of 21
12. In addition to the above, the trial court
noticed from the autopsy report that the gun shot
injury sustained by the deceased was not from a rifle
bullet but from a .12 bore weapon which was not
recovered from any of the accused persons. Hence,
even if rifle bullets were found at the spot, they were
not the ones from which injuries were caused to the
deceased. As regards the cross version of the
incident (i.e. Case Crime No.48A/87), no adverse
inference was drawn against the accused as it was
not at their behest.
13. Apart from above, the trial court noticed that,
according to the prosecution version, several persons
(i.e. villagers including PW-3 and PW-6 and police
personnel) had arrived at the spot and the three
accused were also present there, yet they were not
identified. In these circumstances, it was concluded
that if PW-3 and PW-6, who were travelling on
another scooter in close proximity to the deceased,
had recognized the accused persons, they would have
identified them at the scene of crime as those who
killed the deceased, and country made pistols might
have also been recovered.
14. After analysing the entire prosecution
evidence in detail, the trial court concluded that the
Criminal Appeal No.413 of 2013 Page 9 of 21
prosecution had failed to prove that those three
policemen in uniform, who attacked Raj Kumar
Baliyan (the deceased), were the persons facing trial.
High Court’s observations
15. Having failed to succeed in the trial, the State
filed a time-barred appeal along with a delay
condonation application and an application seeking
leave to appeal. The High Court by the impugned
order allowed the delay condonation application but
rejected the application seeking leave to appeal and
dismissed the appeal accordingly.
16. While rejecting the application seeking leave
to appeal, the High Court noticed that the
prosecution case rested on three eye-witnesses’
accounts. Eye-witnesses PW-3 and PW-6 could not
identify the policemen and in so far as PW-15 was
concerned, he was found not reliable. Moreover, the
medical evidence indicated that the deceased died
due to gun-shot injuries fired from a .12 bore weapon
and not a rifle, which was with the accused, hence,
granting leave to appeal to formally hear the appeal
would be an exercise in futility.
17. We have heard Shri Vikramjit Banerjee,
learned Additional Solicitor General, assisted by Shri
Rajan Kumar Chaurasia, learned Advocate for the
Criminal Appeal No.413 of 2013 Page 10 of 21
appellant; Shri Anil K. Sharma, learned Advocate for
the respondents; and have perused the record.
Submissions
18. The learned counsel for the appellants
submitted that this is a case where it was proved
beyond doubt that the deceased was shot by persons
who were wearing police uniform. On the night of the
incident, the three accused, namely, Shyam Bihari,
Anil Kumar Sharma and Arshad Ali, all armed
constables, were patrolling the area, as per evidence
brought on record. Soon after the incident these
constables were found present at the spot. Hence,
their presence at the scene of crime was confirmed
not only by eye witnesses but also by circumstances
including the fact that certain empty cartridges
recovered from the spot were fired from their service
rifles. Thus, not only their presence was proved but
another version of the incident i.e. Case Crime
No.48A of 1987, depicting police action, confirmed
that death was a consequence of police action.
Therefore, the burden was heavy on the accused to
explain these incriminating circumstances and in
absence whereof, an adverse inference ought to have
been drawn against the accused persons.
Criminal Appeal No.413 of 2013 Page 11 of 21
19. It was also argued that even if PW-3 and PW-6
could not identify the accused persons, they
corroborated the prosecution story with regard to the
manner in which the incident occurred and,
therefore, their testimony could be used to
corroborate the testimony of PW-15, who not only
narrated the incident but could recognize and
identify the accused persons.
20. Thus, according to the learned counsel for the
appellant, the trial court’s verdict was perverse and
rejection of the application seeking leave to appeal
has resulted in grave miscarriage of justice. It has
therefore been prayed that the appeal be allowed and
the matter be remitted to the High Court to accord
fresh consideration on merits.
21. Per contra, the learned counsel for the
respondents submitted that, firstly, PW-3 and PW-5,
who were travelling with the deceased, have not been
able to identify the accused as those who were
involved in the killing of the deceased; and, secondly,
the deceased died of a gun-shot wound which could
be ascribed to a .12 bore weapon, not a rifle which
was with the accused. Moreover, some of the empty
cartridges lifted from the spot did not match with the
rifles of the three accused thereby giving rise to a
Criminal Appeal No.413 of 2013 Page 12 of 21
possibility that someone else was also present with a
rifle and had used it. In these circumstances, if the
trial court gave the benefit of doubt to the accused,
the judgment and order of the trial court cannot be
held perverse as to warrant reversal in an appeal.
22. With regard to the testimony of PW-15, the
learned counsel for the respondent submitted that
PW-15 has been found not reliable for multiple
reasons. Firstly, he did not make disclosure to anyone
of having witnessed the incident even though the
villagers had arrived and congregated at the spot in
sufficient numbers to instil confidence in any person
to make a disclosure against any person regardless of
his position. Secondly, instead of giving his statement
to the investigating agency, the witness got an
affidavit prepared from a lawyer, who prepared not
one but three affidavits identically worded. One was
of PW15 and the other two were of those two persons
who could not appear as witnesses during the trial.
This would indicate that those affidavits were
prepared on legal advice. Thirdly, PW15’s version that
Anil Kumar took out a country made pistol to shoot
the deceased appears improbable for two reasons,
namely, there was no proven motive to commit such
an act and once they had already fired from their
Criminal Appeal No.413 of 2013 Page 13 of 21
rifles they could easily have used the same to kill the
deceased by giving the incident a colour of an
encounter.
23. In respect of the incriminating circumstances
such as the presence of the accused persons at the
spot, use of service rifle to fire shots and killing of the
deceased by policemen, it was submitted that they by
themselves are insufficient to constitute a chain so
far complete as to indicate that in all human
probability it were the accused and no one else who
committed the crime. Rather, there existed
circumstances, proven on record, such as the
presence of few empty cartridges at the spot which
were not fired from rifles issued to the three accused,
which indicated the presence of some other person
also and possibility of the incident occurring in some
other manner than set out by the prosecution.
24. Highlighting all the above points, the learned
counsel for the respondents submitted that this is
not a case where the judgment and order of the High
Court be interfered with.
Analysis
25. We have considered the rival submissions and
have perused the record.
Criminal Appeal No.413 of 2013 Page 14 of 21
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
Criminal Appeal No.413 of 2013 Page 15 of 21
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.
Criminal Appeal No.413 of 2013 Page 16 of 21
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 PW-
15 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
Criminal Appeal No.413 of 2013 Page 17 of 21
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 gun-
shot 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
Criminal Appeal No.413 of 2013 Page 18 of 21
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
Criminal Appeal No.413 of 2013 Page 19 of 21
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.
33. At this stage, we may put on record that the
learned ASG could not point out that the Trial Court
ignored or misread any relevant evidence.
34. For all the reasons as stated above, we do not
find it to be a fit case to interfere with the order
passed by the High Court and remit the matter only
for the High Court to rewrite the judgment as the
Criminal Appeal No.413 of 2013 Page 20 of 21
same, in our view, would be an exercise in futility.
The appeal is dismissed.
......................................J.
(B. V. NAGARATHNA)
......................................J.
(MANOJ MISRA)
New Delhi;
July 17, 2023
Criminal Appeal No.413 of 2013 Page 21 of 21