Full Judgment Text
$~6
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 636/2015
% Judgment dated 21.01.2016
STATE ( GOVT OF NCT OF DELHI) ..... Petitioner
Through : Ms. Aashaa Tiwari, APP for State with SI
Jagbir Singh, PS – New Usman Pur.
versus
HARI KANT SHARMA & ANR ..... Respondent
Through : Mr. Naman Raj Thakur and Mr. Anuj
Kumar Ranjan, Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J ( ORAL )
1. The present leave to appeal has been filed by the State under Section
378(1) of the Code of Criminal Procedure being aggrieved by the order of
th
acquittal dated 25 April, 2015.
2. Counsel for the State submits that the trial court has ignored the testimony
of the injured eye witness PW-1 being the wife of the deceased which
unerringly points towards guilt of the respondents. Counsel submits that
the trial court has failed to take into account that the commotion started at
about 4.25 pm and lasted about half an hour and only thereafter PW-1
called the police at number 100 which would explain the delay in
informing the police by PW-1. Counsel further contends that the learned
trial court has failed to take into account the testimony of PW-6,
ambulance driver who took the deceased and the injured eye witness PW-
1 to the GTB Hospital from the spot of the incident which would clearly
establish the presence of PW-1 at the spot of the incident. Counsel
CRL.L.P.636/2015 Page 1 of 11
contends that there are glaring errors of facts and law which has led to the
conclusion of the acquittal of the respondents.
3. Counsel for the respondents submits that the trial Court has correctly
applied the law to the facts of the present case and threadbare discussed
the testimony of the witnesses. Counsel submits that suspicion, however
strong, cannot take the place of proof.
4. We have heard learned counsel for the parties, examined the trial court
record and considered their rival submissions. The case of the
prosecution as noticed by the trial court is as under:-
5. On 28.3.2009 at about 4.00 p.m., Smt.Poonam received a telephone call
on her mobile no.9891878043 and the caller stated that “ main Hari Kant
bol rha hu. Yadi apne pati ki khairiyat chahti hai to gali no.6, Jai
Prakash Nagar main 2 lakh rupay le kar aa jao” . On receiving this call,
PW1 Poonam went to Gali no.6, Jai Prakash Nagar and saw that three
persons had caught hold of her husband. Accused Hari Kant was giving
fist blows to her husband Bhure. Accused Lalit @ Kallu had caught hold
of the legs of husband of PW1. Accused Hari Kant was also having a
katta in his hand and was saying Äaj mere paisa wapas de do nahi to jaan
se bhure ko khatam kar dunga. ” Thereafter, Hari Kant fired shots from
the katta on husband of PW1. When PW1 tried to save her husband, she
also received a gun shot injury on her right hand. Husband of PW1 fell on
the ground and accused Hari Kant told his associates to put the cartridges
in pocket of husband of PW1. At about 04.25 pm, PW 13 W/Ct.Preeti
received an information through phone number 9811952061 that at Gali
no.6, Hotel Wali Gali, Chhote Puste Ke Pass, Jai Prakash Nagar, New
Usman Pur ýahan par goliyan chal rahi hai, do ladko ko lagi hai ’. PW13
recorded this information in PCR from Ex.PW13/A. On the same day, at
th
about 05.10 pm, PW-14 recieved information to the effect that at the 5
CRL.L.P.636/2015 Page 2 of 11
Pushta, Gamri Village, Usmanpur “ mujhe aur mere husband ko goli lagi
hai ”and he recorded this information vide Ex.PW 14/A. On receiving
this information from CATS Control Room, PW6 along with his
ambulance reached at the spot where he found one male and one female
and transported them to GTB Hospital. PW9 Ct.Naresh Kumar, on
receiving this information reached at the spot and saw lot of blood lying at
the spot. He also saw three empty cartridge cases and two bullet leads
lying at the spot.
6. PW-1 Smt.Poonam wife of the deceased claims to be the eye witness.
th
She has testified that on 28 March, 2009 at about 4 pm when she was
present at her house, a telephone call was received on her mobile
no.9891878043. The caller told her that “ main Hari Kant bol rha hu.
Yadi apne pati ki khairiyat chahti hai to gali no.6, Jai Prakash Nagar
main 2 lakh rupay le kar aa jao” . After receiving the call, she
immediately went to Gali no.6, Jai Prakash Nagar and saw that three
persons had caught hold of her husband and respondent Hari Kant was
giving fist blows to her husband. Respondent Lalit @ Kallu had caught
hold of the legs of her husband. Respondent Hari Kant was also having a
katta in his hand and was saying Äaj mere paisa wapas de do nahi to jaan
se bhure ko khatam kar dunga .” Thereafter, respondent Hari Kant fired
shots from the katta on her husband. When she tried to save her husband,
she also received a gun shot injury in her right hand. Her husband fell on
the ground. Thereafter, respondent Hari Kant told the co-accused to put
the cartridges in the pocket of her husband and ran away from there.
Someone made a call on number 100. PCR reached the spot and removed
her and her husband to GTB Hospital in the PCR van. In the hospital, her
husband was declared brought dead and she was discharged from the
hospital at about 6.30 pm. Police had met her in the hospital. She was
CRL.L.P.636/2015 Page 3 of 11
brought to the spot by the police. She had identified the spot of the
incident. An extract of her deposition made to the court is as under:-
“ .... When I reached the spot after receiving the telephone
call of Hari Kant, I saw that my husband was caught hold
by three persons and while accused Hari Kant was giving
leg blows to my husband. One of them was saying Desi
isse kas ke pakad le and that person replied Raghav
maine isse kas ke pakad liya hai. My husband was trying
to save himself from the clutches of the accused persons.
When my husband was trying to release himself from them
on this Raghav and Desi caught hold the hands of my
husband and Lalit @ Kallu present in the court today
caught hold the legs of my husband and then Hari Kant
fired katta shots on my husband.
On 21.04.09, I was called in Tihar Jail to identify
the accused persons. Since I was in shock due to death of
my husband and was nervous as I had gone first time in
Tihar and face such circumstances first time, I could not
identify Raghav and Desi. However, I had identified
accused Lalit @ Kallu there. Since first time I was
nervous and tears developed in my eyes so first time I
could not identify Raghav and Desi and lastly I had
identified Lalit @ Kallu...... ”
7. As per testimony of PW-1 after receiving phone call at about 4 pm asking
her to produce Rs.2 lakhs, it took her 10 minutes to reach the spot where
three persons had caught hold of her husband and Hari Kant was giving
leg blows to her husband. The other persons had also caught hold of her
husband. Further, according to the testimony of PW-1, the entire incident
lasted for about 30 minutes. The testimony of PW-1 has been disbelieved
by the trial court. Further, as per her testimony, she was removed to GTB
Hospital in the PCR van and she was discharged from the hospital at 6.30
st
pm. In her testimony, she has deposed that on 21 April, 2009, she was
called in Tihar Jail to identify the accused persons. As she was in shock
CRL.L.P.636/2015 Page 4 of 11
due to death of her husband and was nervous, she could not identify
Raghav and Desi in the TIP. However, she had identified accused Lalit @
Kallu and that she could not identify Raghav and Desi as tears had
developed in her eyes.
8. PW-1 despite being injured was conscious and oriented as per MLC, in
which case she should have immediately called the police but the first
PCR call was made by someone at 4.25 pm. The second PCR call was
made by her from her mobile at 5.10 pm i.e., after a gap of 45 minutes.
This is the first aspect which casts a doubt on the testimony of this
witness and also creates a doubt about her presence at the place of the
incident. The delay of 45 minutes has not been explained by PW-1.
Secondly, according to PW-1 she accompanied her husband in the CATS
ambulance to the hospital.
9. While exercising power under section 165 of the Evidence Act, with a
view to seek clarification, the trial court called the Incharge of the PCR
van Baker 43 who had got PW-1 admitted in the hospital. The incharge
of the PCR Baker 43 ASI Bhagwan Sahai was summoned by the court as
CW-1. The testimony of this witness would leave no doubt that PW-1
Poonam was not present at the place of the incident. CW-1 has deposed
that when he reached the spot, two PCRs were already present. CATS
ambulance had already taken the deceased to the hospital. In case, PW-1
was present at the place of the incident, she would have accompanied her
husband to the hospital and not reach the hospital after a gap of one hour
and 15 minutes.
10. We may add that PW-6 Yudhishtar who was Assistant Ambulance Officer
in Ambulance CATS Alpha 16 testified that on 28.03.2009 at about 4.20
pm, he had received an information from the CATS control room that one
person had been shot at Gali no.6, Kartar Nagar, Hotel Wali Gali, Jai
CRL.L.P.636/2015 Page 5 of 11
Prakash Nagar. On reaching the spot, he found one male person and one
female in an injured condition. He transported both of them to GTB
Hospital. The male person was declared brought dead. The MLC of both
the injured were prepared in GTB Hospital. There is also a doubt with
regard to the testimony of PW-6 Yudhishtar as in the MLC of the
deceased Bhure it is stated that he was brought in CATS ambulance and
the time of arrival was about 5.48 pm. On the contrary, MLC of the PW1
Poonam shows that she was brought to the hospital by Head Constable
Bhagwan Sahai and the time mentioned was 7 pm. MLC of PW-1 read
with the testimony of CW-1 can only lead to the conclusion that PW-1
Poonam had not accompanied her husband to the hospital in the CATS
ambulance. The documentary evidence in the form of her MLC would
show that she reached the hospital almost about one hour and fifteen
minutes later than her husband.
11. We also find the evidence of PW-1 unreliable as according to her,
commotion and beating of her husband lasted for more than 30 minutes.
We found it unusual that in a crowded gali, not a single person intervened
in the fight nor any public person has been associated by the prosecution.
12. It is settled law that an appellate court should not interfere with the
judgment of acquittal passed by the trial court, who is at an advantage to
see the witnesses unless there are compelling reasons to believe that the
judgment of the acquittal suffers from grave miscarriage of justice.
13. In the case of Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of
Travancore-cochin, reported at [1954] CrlJ 102, wherein it was held as
under:
“ It cannot be disputed that the High Court even though it
was hearing an appeal from an order of acquittal, had
full powers to review the entire evidence on the record
and reach its own conclusion that the acquittal order
CRL.L.P.636/2015 Page 6 of 11
should be set aside. But as the Privy Council pointed out
in Sheosarup v. Emperor , AIR 1934 P.C. 227 in
exercising these powers the High Court should and will
always give proper weight and consideration to such
matters as: (1) the views of the trial court as to the
credibility of witnesses; (2) presumption of innocence in
favour of the accused, a presumption certainly not
weakened by the fact that he had been acquitted at the
trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate court in
disturbing a finding of fact arrived at by a Judge who
had the advantage of seeing the witnesses. ”
14. It has also been held in Shyamal Saha & Anr. v . State of West Bengal ,
2014(2) Scale 690 as under:
“ 18. Aggrieved by their conviction and sentence,
Shyamal and Prosanta have preferred this appeal. The
primary submission made on their behalf was to the effect
that the High Court ought not to have interfered in the
acquittal by the Trial Court particularly, in a case of
circumstantial evidence. It was also submitted that the
evidence on record points to the fact that they were made
scapegoats by the prosecution. Of course, this was opposed
by learned counsel for the State.
19. The crucial issue for consideration, therefore, relates to
interference by the High Court in an acquittal given by the
Trial Court. Recently, in Joginder Singh v. State of
Haryana3 it was held, after referring to Sheo Swarup v.
King Emperor4 that “Before we proceed to consider the
rivalised contentions raised at the bar and independently
scrutinize the relevant evidence brought on record, it is
fruitful to recapitulate the law enunciated by this Court
pertaining to an appeal against acquittal. In Sheo Swarup
(supra), it has been stated that the High Court can exercise
the power or jurisdiction to reverse an order of acquittal in
cases where it finds that the lower court has "obstinately
blundered" or has "through incompetence, stupidity or
perversity" reached such "distorted conclusions as to
produce a positive miscarriage of justice" or has in some
other way so conducted or misconducted himself as to
CRL.L.P.636/2015 Page 7 of 11
produce a glaring miscarriage of justice or has been
tricked by the defence so as to produce a similar result.”
Unfortunately, the paraphrasing of the concerned passage
from Sheo Swarup gave us an impression that the High
Court can reverse an acquittal by a lower court only in
limited circumstances. Therefore, we referred to the
passage in Sheo Swarup and find that what was stated was
as follows:
“There is in their opinion no foundation for the view,
apparently supported by the judgments of some Courts in
India, that the High Court has no power or jurisdiction to
reverse an order of acquittal on a matter of fact, except in
cases in which the lower Court has "obstinately blundered,"
or has "through incompetence, stupidity or perversity"
reached such "distorted conclusions as to produce a
positive miscarriage of justice," or has in some other way so
conducted itself as to produce a glaring miscarriage of
justice, or has been tricked by the defence so as to produce
a similar result.” The legal position was reiterated in Nur
Mohammad v. Emperor5 after citing Sheo Swarup and it
was held:
“Their Lordships do not think it necessary to read it all
again, but would like to observe that there really is only one
principle, in the strict use of the word, laid down there; that
is, that the High Court has full power to review at large all
the evidence upon which the order of acquittal was founded,
and to reach the conclusion that upon that evidence the
order of acquittal should be reversed.” We are mentioning
this only to dispel the possibility of anyone else getting an
impression similar to the one that we got, though nothing
much turns on this as far as this case is concerned.
20. The entire case law on the subject was discussed in
Chandrappa v. State of Karnataka [6] beginning with
perhaps the first case decided by this Court on the subject
being Prandas v. State. 7 It was held in Chandrappa as
follows:
“(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
CRL.L.P.636/2015 Page 8 of 11
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
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 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.
(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.”
21. The principles laid down in Chandrappa were generally
reiterated but mainly reformulated in Ganpat v. State of
Haryana[8] though without reference to Chandrappa and
by referring to decisions not considered therein. The
reformulation of the principles in Ganpat is as follows:
“(i) There is no limitation on the part of the appellate court
to review the evidence upon which the order of acquittal is
founded and to come to its own conclusion.
CRL.L.P.636/2015 Page 9 of 11
(ii) The appellate court can also review the trial court‟s
conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it
is the duty of the appellate court to marshal the entire
evidence on record and by giving cogent and adequate
reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when
there are “compelling and substantial reasons” for doing
so. If the order is “clearly unreasonable”, it is a compelling
reason for interference.
(v) When the trial court has ignored the evidence or
misread the material evidence or has ignored material
documents like dying declaration/report of ballistic experts,
etc. the appellate court is competent to reverse the decision
of the trial court depending on the materials placed. (Vide
Madan Lal v. State of J&K [9] , Ghurey Lal v. State of
U.P.[10] , Chandra Mohan Tiwari v. State of M.P.[11] and
Jaswant Singh v. State of Haryana[12.)”
22. Undoubtedly, we are suffering from an overdose of
precedents but be that as it may, from the principles laid
down, it appears at first blush that the High Court is
entitled to virtually step into the shoes of the Trial Court
hearing submissions of learned counsel and then decide
the case as a court of first instance. Perhaps this is not
what is intended, notwithstanding the broad language
used in Chandrappa and Ganpat. Otherwise, the decision
of the Trial Court would be a meaningless exercise and
this Court would become a first appellate court from a
decision of the High Court in a case of acquittal by the
Trial Court. Realistically speaking, although the
principles stated are broad, it is the obligation of the
High Court to consider and identify the error in the
decision of the Trial Court and then decide whether the
error is gross enough to warrant interference. The High
Court is not expected to merely substitute its opinion for
that of the Trial Court only because the first two
principles in Chandrappa and Ganpat permit it to do so
CRL.L.P.636/2015 Page 10 of 11
and because it has the power to do so – it has to correct
an error of law or fact significant enough to necessitate
overturning the verdict of the Trial Court. This is where
the High Court has to exercise its discretion very
cautiously, keeping in mind the acquittal of the accused
and the rights of the victim (who may or may not be
before it). This is also where the fifth principle laid down
in Chandrappa and Ganpat comes into operation. ”
15. We find no infirmity in the judgment passed by the learned trial court.
Accordingly, no grounds are made out to interfere in the impugned
judgment. Consequently, the criminal leave to appeal petition is
dismissed.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
JANUARY 21, 2016
ssb/msr
CRL.L.P.636/2015 Page 11 of 11
* IN THE HIGH COURT OF DELHI AT NEW DELHI
+ CRL.L.P. 636/2015
% Judgment dated 21.01.2016
STATE ( GOVT OF NCT OF DELHI) ..... Petitioner
Through : Ms. Aashaa Tiwari, APP for State with SI
Jagbir Singh, PS – New Usman Pur.
versus
HARI KANT SHARMA & ANR ..... Respondent
Through : Mr. Naman Raj Thakur and Mr. Anuj
Kumar Ranjan, Advocates.
CORAM:
HON'BLE MR. JUSTICE G.S.SISTANI
HON'BLE MS. JUSTICE SANGITA DHINGRA SEHGAL
G.S.SISTANI, J ( ORAL )
1. The present leave to appeal has been filed by the State under Section
378(1) of the Code of Criminal Procedure being aggrieved by the order of
th
acquittal dated 25 April, 2015.
2. Counsel for the State submits that the trial court has ignored the testimony
of the injured eye witness PW-1 being the wife of the deceased which
unerringly points towards guilt of the respondents. Counsel submits that
the trial court has failed to take into account that the commotion started at
about 4.25 pm and lasted about half an hour and only thereafter PW-1
called the police at number 100 which would explain the delay in
informing the police by PW-1. Counsel further contends that the learned
trial court has failed to take into account the testimony of PW-6,
ambulance driver who took the deceased and the injured eye witness PW-
1 to the GTB Hospital from the spot of the incident which would clearly
establish the presence of PW-1 at the spot of the incident. Counsel
CRL.L.P.636/2015 Page 1 of 11
contends that there are glaring errors of facts and law which has led to the
conclusion of the acquittal of the respondents.
3. Counsel for the respondents submits that the trial Court has correctly
applied the law to the facts of the present case and threadbare discussed
the testimony of the witnesses. Counsel submits that suspicion, however
strong, cannot take the place of proof.
4. We have heard learned counsel for the parties, examined the trial court
record and considered their rival submissions. The case of the
prosecution as noticed by the trial court is as under:-
5. On 28.3.2009 at about 4.00 p.m., Smt.Poonam received a telephone call
on her mobile no.9891878043 and the caller stated that “ main Hari Kant
bol rha hu. Yadi apne pati ki khairiyat chahti hai to gali no.6, Jai
Prakash Nagar main 2 lakh rupay le kar aa jao” . On receiving this call,
PW1 Poonam went to Gali no.6, Jai Prakash Nagar and saw that three
persons had caught hold of her husband. Accused Hari Kant was giving
fist blows to her husband Bhure. Accused Lalit @ Kallu had caught hold
of the legs of husband of PW1. Accused Hari Kant was also having a
katta in his hand and was saying Äaj mere paisa wapas de do nahi to jaan
se bhure ko khatam kar dunga. ” Thereafter, Hari Kant fired shots from
the katta on husband of PW1. When PW1 tried to save her husband, she
also received a gun shot injury on her right hand. Husband of PW1 fell on
the ground and accused Hari Kant told his associates to put the cartridges
in pocket of husband of PW1. At about 04.25 pm, PW 13 W/Ct.Preeti
received an information through phone number 9811952061 that at Gali
no.6, Hotel Wali Gali, Chhote Puste Ke Pass, Jai Prakash Nagar, New
Usman Pur ýahan par goliyan chal rahi hai, do ladko ko lagi hai ’. PW13
recorded this information in PCR from Ex.PW13/A. On the same day, at
th
about 05.10 pm, PW-14 recieved information to the effect that at the 5
CRL.L.P.636/2015 Page 2 of 11
Pushta, Gamri Village, Usmanpur “ mujhe aur mere husband ko goli lagi
hai ”and he recorded this information vide Ex.PW 14/A. On receiving
this information from CATS Control Room, PW6 along with his
ambulance reached at the spot where he found one male and one female
and transported them to GTB Hospital. PW9 Ct.Naresh Kumar, on
receiving this information reached at the spot and saw lot of blood lying at
the spot. He also saw three empty cartridge cases and two bullet leads
lying at the spot.
6. PW-1 Smt.Poonam wife of the deceased claims to be the eye witness.
th
She has testified that on 28 March, 2009 at about 4 pm when she was
present at her house, a telephone call was received on her mobile
no.9891878043. The caller told her that “ main Hari Kant bol rha hu.
Yadi apne pati ki khairiyat chahti hai to gali no.6, Jai Prakash Nagar
main 2 lakh rupay le kar aa jao” . After receiving the call, she
immediately went to Gali no.6, Jai Prakash Nagar and saw that three
persons had caught hold of her husband and respondent Hari Kant was
giving fist blows to her husband. Respondent Lalit @ Kallu had caught
hold of the legs of her husband. Respondent Hari Kant was also having a
katta in his hand and was saying Äaj mere paisa wapas de do nahi to jaan
se bhure ko khatam kar dunga .” Thereafter, respondent Hari Kant fired
shots from the katta on her husband. When she tried to save her husband,
she also received a gun shot injury in her right hand. Her husband fell on
the ground. Thereafter, respondent Hari Kant told the co-accused to put
the cartridges in the pocket of her husband and ran away from there.
Someone made a call on number 100. PCR reached the spot and removed
her and her husband to GTB Hospital in the PCR van. In the hospital, her
husband was declared brought dead and she was discharged from the
hospital at about 6.30 pm. Police had met her in the hospital. She was
CRL.L.P.636/2015 Page 3 of 11
brought to the spot by the police. She had identified the spot of the
incident. An extract of her deposition made to the court is as under:-
“ .... When I reached the spot after receiving the telephone
call of Hari Kant, I saw that my husband was caught hold
by three persons and while accused Hari Kant was giving
leg blows to my husband. One of them was saying Desi
isse kas ke pakad le and that person replied Raghav
maine isse kas ke pakad liya hai. My husband was trying
to save himself from the clutches of the accused persons.
When my husband was trying to release himself from them
on this Raghav and Desi caught hold the hands of my
husband and Lalit @ Kallu present in the court today
caught hold the legs of my husband and then Hari Kant
fired katta shots on my husband.
On 21.04.09, I was called in Tihar Jail to identify
the accused persons. Since I was in shock due to death of
my husband and was nervous as I had gone first time in
Tihar and face such circumstances first time, I could not
identify Raghav and Desi. However, I had identified
accused Lalit @ Kallu there. Since first time I was
nervous and tears developed in my eyes so first time I
could not identify Raghav and Desi and lastly I had
identified Lalit @ Kallu...... ”
7. As per testimony of PW-1 after receiving phone call at about 4 pm asking
her to produce Rs.2 lakhs, it took her 10 minutes to reach the spot where
three persons had caught hold of her husband and Hari Kant was giving
leg blows to her husband. The other persons had also caught hold of her
husband. Further, according to the testimony of PW-1, the entire incident
lasted for about 30 minutes. The testimony of PW-1 has been disbelieved
by the trial court. Further, as per her testimony, she was removed to GTB
Hospital in the PCR van and she was discharged from the hospital at 6.30
st
pm. In her testimony, she has deposed that on 21 April, 2009, she was
called in Tihar Jail to identify the accused persons. As she was in shock
CRL.L.P.636/2015 Page 4 of 11
due to death of her husband and was nervous, she could not identify
Raghav and Desi in the TIP. However, she had identified accused Lalit @
Kallu and that she could not identify Raghav and Desi as tears had
developed in her eyes.
8. PW-1 despite being injured was conscious and oriented as per MLC, in
which case she should have immediately called the police but the first
PCR call was made by someone at 4.25 pm. The second PCR call was
made by her from her mobile at 5.10 pm i.e., after a gap of 45 minutes.
This is the first aspect which casts a doubt on the testimony of this
witness and also creates a doubt about her presence at the place of the
incident. The delay of 45 minutes has not been explained by PW-1.
Secondly, according to PW-1 she accompanied her husband in the CATS
ambulance to the hospital.
9. While exercising power under section 165 of the Evidence Act, with a
view to seek clarification, the trial court called the Incharge of the PCR
van Baker 43 who had got PW-1 admitted in the hospital. The incharge
of the PCR Baker 43 ASI Bhagwan Sahai was summoned by the court as
CW-1. The testimony of this witness would leave no doubt that PW-1
Poonam was not present at the place of the incident. CW-1 has deposed
that when he reached the spot, two PCRs were already present. CATS
ambulance had already taken the deceased to the hospital. In case, PW-1
was present at the place of the incident, she would have accompanied her
husband to the hospital and not reach the hospital after a gap of one hour
and 15 minutes.
10. We may add that PW-6 Yudhishtar who was Assistant Ambulance Officer
in Ambulance CATS Alpha 16 testified that on 28.03.2009 at about 4.20
pm, he had received an information from the CATS control room that one
person had been shot at Gali no.6, Kartar Nagar, Hotel Wali Gali, Jai
CRL.L.P.636/2015 Page 5 of 11
Prakash Nagar. On reaching the spot, he found one male person and one
female in an injured condition. He transported both of them to GTB
Hospital. The male person was declared brought dead. The MLC of both
the injured were prepared in GTB Hospital. There is also a doubt with
regard to the testimony of PW-6 Yudhishtar as in the MLC of the
deceased Bhure it is stated that he was brought in CATS ambulance and
the time of arrival was about 5.48 pm. On the contrary, MLC of the PW1
Poonam shows that she was brought to the hospital by Head Constable
Bhagwan Sahai and the time mentioned was 7 pm. MLC of PW-1 read
with the testimony of CW-1 can only lead to the conclusion that PW-1
Poonam had not accompanied her husband to the hospital in the CATS
ambulance. The documentary evidence in the form of her MLC would
show that she reached the hospital almost about one hour and fifteen
minutes later than her husband.
11. We also find the evidence of PW-1 unreliable as according to her,
commotion and beating of her husband lasted for more than 30 minutes.
We found it unusual that in a crowded gali, not a single person intervened
in the fight nor any public person has been associated by the prosecution.
12. It is settled law that an appellate court should not interfere with the
judgment of acquittal passed by the trial court, who is at an advantage to
see the witnesses unless there are compelling reasons to believe that the
judgment of the acquittal suffers from grave miscarriage of justice.
13. In the case of Chelloor Mankkal Narayan Ittiravi Nambudiri v. State of
Travancore-cochin, reported at [1954] CrlJ 102, wherein it was held as
under:
“ It cannot be disputed that the High Court even though it
was hearing an appeal from an order of acquittal, had
full powers to review the entire evidence on the record
and reach its own conclusion that the acquittal order
CRL.L.P.636/2015 Page 6 of 11
should be set aside. But as the Privy Council pointed out
in Sheosarup v. Emperor , AIR 1934 P.C. 227 in
exercising these powers the High Court should and will
always give proper weight and consideration to such
matters as: (1) the views of the trial court as to the
credibility of witnesses; (2) presumption of innocence in
favour of the accused, a presumption certainly not
weakened by the fact that he had been acquitted at the
trial; (3) the right of the accused to the benefit of any
doubt; and (4) the slowness of an appellate court in
disturbing a finding of fact arrived at by a Judge who
had the advantage of seeing the witnesses. ”
14. It has also been held in Shyamal Saha & Anr. v . State of West Bengal ,
2014(2) Scale 690 as under:
“ 18. Aggrieved by their conviction and sentence,
Shyamal and Prosanta have preferred this appeal. The
primary submission made on their behalf was to the effect
that the High Court ought not to have interfered in the
acquittal by the Trial Court particularly, in a case of
circumstantial evidence. It was also submitted that the
evidence on record points to the fact that they were made
scapegoats by the prosecution. Of course, this was opposed
by learned counsel for the State.
19. The crucial issue for consideration, therefore, relates to
interference by the High Court in an acquittal given by the
Trial Court. Recently, in Joginder Singh v. State of
Haryana3 it was held, after referring to Sheo Swarup v.
King Emperor4 that “Before we proceed to consider the
rivalised contentions raised at the bar and independently
scrutinize the relevant evidence brought on record, it is
fruitful to recapitulate the law enunciated by this Court
pertaining to an appeal against acquittal. In Sheo Swarup
(supra), it has been stated that the High Court can exercise
the power or jurisdiction to reverse an order of acquittal in
cases where it finds that the lower court has "obstinately
blundered" or has "through incompetence, stupidity or
perversity" reached such "distorted conclusions as to
produce a positive miscarriage of justice" or has in some
other way so conducted or misconducted himself as to
CRL.L.P.636/2015 Page 7 of 11
produce a glaring miscarriage of justice or has been
tricked by the defence so as to produce a similar result.”
Unfortunately, the paraphrasing of the concerned passage
from Sheo Swarup gave us an impression that the High
Court can reverse an acquittal by a lower court only in
limited circumstances. Therefore, we referred to the
passage in Sheo Swarup and find that what was stated was
as follows:
“There is in their opinion no foundation for the view,
apparently supported by the judgments of some Courts in
India, that the High Court has no power or jurisdiction to
reverse an order of acquittal on a matter of fact, except in
cases in which the lower Court has "obstinately blundered,"
or has "through incompetence, stupidity or perversity"
reached such "distorted conclusions as to produce a
positive miscarriage of justice," or has in some other way so
conducted itself as to produce a glaring miscarriage of
justice, or has been tricked by the defence so as to produce
a similar result.” The legal position was reiterated in Nur
Mohammad v. Emperor5 after citing Sheo Swarup and it
was held:
“Their Lordships do not think it necessary to read it all
again, but would like to observe that there really is only one
principle, in the strict use of the word, laid down there; that
is, that the High Court has full power to review at large all
the evidence upon which the order of acquittal was founded,
and to reach the conclusion that upon that evidence the
order of acquittal should be reversed.” We are mentioning
this only to dispel the possibility of anyone else getting an
impression similar to the one that we got, though nothing
much turns on this as far as this case is concerned.
20. The entire case law on the subject was discussed in
Chandrappa v. State of Karnataka [6] beginning with
perhaps the first case decided by this Court on the subject
being Prandas v. State. 7 It was held in Chandrappa as
follows:
“(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which the
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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
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 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.
(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.”
21. The principles laid down in Chandrappa were generally
reiterated but mainly reformulated in Ganpat v. State of
Haryana[8] though without reference to Chandrappa and
by referring to decisions not considered therein. The
reformulation of the principles in Ganpat is as follows:
“(i) There is no limitation on the part of the appellate court
to review the evidence upon which the order of acquittal is
founded and to come to its own conclusion.
CRL.L.P.636/2015 Page 9 of 11
(ii) The appellate court can also review the trial court‟s
conclusion with respect to both facts and law.
(iii) While dealing with the appeal preferred by the State, it
is the duty of the appellate court to marshal the entire
evidence on record and by giving cogent and adequate
reasons may set aside the judgment of acquittal.
(iv) An order of acquittal is to be interfered with only when
there are “compelling and substantial reasons” for doing
so. If the order is “clearly unreasonable”, it is a compelling
reason for interference.
(v) When the trial court has ignored the evidence or
misread the material evidence or has ignored material
documents like dying declaration/report of ballistic experts,
etc. the appellate court is competent to reverse the decision
of the trial court depending on the materials placed. (Vide
Madan Lal v. State of J&K [9] , Ghurey Lal v. State of
U.P.[10] , Chandra Mohan Tiwari v. State of M.P.[11] and
Jaswant Singh v. State of Haryana[12.)”
22. Undoubtedly, we are suffering from an overdose of
precedents but be that as it may, from the principles laid
down, it appears at first blush that the High Court is
entitled to virtually step into the shoes of the Trial Court
hearing submissions of learned counsel and then decide
the case as a court of first instance. Perhaps this is not
what is intended, notwithstanding the broad language
used in Chandrappa and Ganpat. Otherwise, the decision
of the Trial Court would be a meaningless exercise and
this Court would become a first appellate court from a
decision of the High Court in a case of acquittal by the
Trial Court. Realistically speaking, although the
principles stated are broad, it is the obligation of the
High Court to consider and identify the error in the
decision of the Trial Court and then decide whether the
error is gross enough to warrant interference. The High
Court is not expected to merely substitute its opinion for
that of the Trial Court only because the first two
principles in Chandrappa and Ganpat permit it to do so
CRL.L.P.636/2015 Page 10 of 11
and because it has the power to do so – it has to correct
an error of law or fact significant enough to necessitate
overturning the verdict of the Trial Court. This is where
the High Court has to exercise its discretion very
cautiously, keeping in mind the acquittal of the accused
and the rights of the victim (who may or may not be
before it). This is also where the fifth principle laid down
in Chandrappa and Ganpat comes into operation. ”
15. We find no infirmity in the judgment passed by the learned trial court.
Accordingly, no grounds are made out to interfere in the impugned
judgment. Consequently, the criminal leave to appeal petition is
dismissed.
G.S.SISTANI, J
SANGITA DHINGRA SEHGAL, J
JANUARY 21, 2016
ssb/msr
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