State Of Nct Of Delhi vs Muraif Qamar & Anr
- Court
- Delhi High Court
$~
* IN THE HIGH COURT OF DELHI AT NEW DELHI
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Reserved on: 8 April, 2026
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Pronounced on: 29 May, 2026
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Uploaded on: 29 May, 2026
+ CRL.A. 889/2017
STATE OF NCT OF DELHI .....Appellant
Through: Mr. Ritesh Kumar Bahri, APP with Mr.
Lalit Luthra and Ms. Divya Yadav,
Advs.
versus
MURAIF QAMAR & ANR .....Respondents
Through: Mr. M. Sufian Siddiqui, Mr. Rakesh
Bhugra, Mr. Md. Niyazuddin and Mr.
Mohammad Mazhar Ahmed, Advs.
CORAM:
JUSTICE PRATHIBA M. SINGH
JUSTICE MADHU JAIN
JUDGMENT
PRATHIBA M. SINGH, J.
1. This hearing has been done through hybrid mode.
2. The present appeal has been filed by the State of NCT of Delhi under
Section 378 of the Code of Criminal Procedure, 1973 (hereinafter, ‘ CrPC ’)
challenging the acquittal of the Respondents i.e., Respondent No.1- Muraif
Qamar and Respondent No. 2- Irshad Ali @ Deepak, vide the judgment dated
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22 December, 2016 (hereinafter, ‘impugned judgment’ ) passed by the ld.
Additional Sessions Judge-02/FTC, New Delhi District, Patiala House
Courts, Delhi in Sessions Case No. 117/2013 . The present case arises out of
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FIR No. 10/2006 registered at PS. Special Cell.
Background
3. The background of the present case is that Respondents i.e., Muraif
Qamar and Irshad Ali @Deepak who claimed to be informers for the Special
Cell of the Delhi Police and Intelligence Bureau (hereinafter ‘IB’ ) faced trial
for offences punishable under Sections 121, 121A, 122, 123 read with
Section 120 B of the Indian Penal Code, 1860 (hereinafter, ‘IPC’ ), Section
25 of the Arms Act, 1959 and Sections 4 and 5 of the Explosive Substance
Act, 1908. The present appeal has a long history.
4. The Respondents claimed that they were working as informers for the
IB and Special Cell of Delhi Police since the year 2000. The stand of the
Respondents is that when they were asked to go undercover into a Terrorist
Camp at Jammu and when they refused to do so, they were falsely implicated
in an incident which led to the trial in the present case.
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5. The incident in the present case took place on 9 February, 2006, when
certain information is stated to have been received by the Special Cell of the
Delhi Police from a secret informer. The Special Cell was informed that the
Respondents would be coming from Jammu to Delhi in a JKSRTC Bus along
with a considerable cache of arms, ammunition and explosives. Upon the
said information being received, a team of Special Cell of the Delhi Police
under the supervision of Inspector Sanjay Dutt, a team comprising various
police officers including SI Vinay Tyagi, SI Ravinder Tyagi, SI Rahul
Kumar Singh, SI Pawan, SI Dalip Kumar, ASI Anil, ASI Shahjahan, HC
Rustam Ahmed, HC Krishna Ram, HC Nagender, Ct. Rajinder and Ct. Rajiv
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was formed immediately to act on the said information. The said team went
to the Mukarba Chowk, near G.T. Karnal Road in three private cars and two
two-wheelers which was recorded vide DD No. 15.
6. Upon reaching Mukarba Chowk, the secret informer met two officials
of the Special Cell of the Delhi Police. Thereafter, a JKSRTC Bus bearing
no. JK-02-0299 arrived at Mukarba Chowk, near G.T. Karnal Road. At 7:35
PM, some passengers are stated to have alighted and Respondents were
identified by the informer and accordingly, the Respondents were
apprehended.
7. Upon search, the following cache items were recovered from the
Respondent No.1- Muraif Qamar:
i. A Chinese Star make loaded pistol of .30 bore containing 8 live
cartridges;
ii. White envelope with three non-electronic detonators; and
iii. One ABCD timer of green colour and one ABCD timer of cream
colour.
8. In case of Respondent No. 2-Irshad Ali @ Deepak, the following items
were recovered:
i. A Chinese Star make loaded pistol of .30 bore containing 8 live
cartridges.
ii. A black coloured polythene in which a mixture of black and white
oil based explosive is allegedly concealed, weighing two kilos.
9. The Respondents were, thereafter, arrested and FIR No. 10/2006 was
registered at PS. Special Cell under the provisions mentioned above. Charges
were framed vide order dated 20th May, 2016 under Sections 121, 121 A,
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122, 123 read with Section 120 B of the IPC, Section 25 of the Arms Act,
1959 and Sections 4 and 5 of the Explosive Substance Act, 1908. Both the
Respondents pleaded not guilty.
10. During the course of trial, evidence was recorded of various witnesses
and finally, the Trial Court vide the impugned judgment acquitted the
Respondents. The findings of the Trial Court are recorded in paragraphs 44,
47 and 48 of the impugned judgment. The said findings of the Trial Court
read as under:
“44. From the statements of PW1, PW6 and PW7
recorded in their cross-examination, the following
circumstances come to light:
1. Private vehicles were used by the police team
during their raid. The details of these vehicles
have not been mentioned in the DD Entry. No
logbooks of use of private vehicles have been
maintained. None of them could recall the
registration numbers of these private
vehicles. PW7 in cross-examination has
stated that their office has been provided
unmarked vehicles of make Mahindra Scorpio
and Maruti Gypsy but the same were not used
in the raid. He tried to explain that these
vehicles could be easily recognized by the
accused persons as belonging to the police.
2. The site plan Ex.PW1/D1 does not reflect the
place where the police officials were
standing. While PW1 and PW6 could state the
point in the site plan where they had been
placed but could not state where other
members of the police team were standing.
The site plan does not reflect the place where
the police vehicles had been parked.
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3. Admittedly only passersby were asked by the
police team to join the investigation. PW1,
PW5 and PW6 do state that a DTC Deport, an
IGL Gas Station and a Police Booth were
near the place of the apprehension but no
effort was made to join any persons from these
permanent establishments. Even though the
police team was at the sport of apprehension
from 5:30pm to 2am, none of these three
witnesses could notice any PCR van/local
beat staff having being passed the place of
apprehension. Thus no public witness was
associated with the apprehension of the
accused persons.
4. SI Ravinder Kumar Tyagi PW1 had taken the
rukka drawn by PW7 SI Vinay Tyagi for
registration of the FIR. However PW11 SI
Rajpal Dabas to whom further investigation
was assigned had reached the place of
apprehension at the stage of preparation of
rukka itself. PW11 has stated that the
investigation was handed over to him by Insp.
Sanjay Dutt while PW1 has stated that the
further investigation of the case was assigned
to SI Rajpal Dabas by PW7 SI Vinay Tyagi.
5. Although the police had specific information
about the particulars of the JKSRTG bus and
its registration number in which the accused
persons were stated to be come, neither its
driver or conductor were associated with the
investigation. Their statements were not
recorded and they were not made witnesses in
this case. The bus tickets alleged to have
recovered from the personal search of Irshad
All has not been verified from JKSRTG.
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6. No crime team was called to the spot. No
efforts were made to lift any fingerprints from
the arms and ammunition seized from the
accused persons.
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47. The observations made by the Hon'ble High Court
in the cases referred above apply to the facts of this case
as;-
(a) private vehicles were used in the raid without
any record;
(b) passersby alone were asked to join the
investigation without noting down their
names and addresses which is not a credible
effort especially when there was an IGL
Station, DIG Depot and a Police Post
nearby;
(c) the site plan of place of apprehension does not
contain full material particulars;
(d) neither the driver nor the conduction of
JKSRTC bus in which accused persons were
stated to be coming were made witnesses in
this case nor were the bus tickets recovered
from the accused verified; and
(e) after apprehension of the accused persons
further investigation was assigned to SI
Rajpal Dabas who had reached the place of
apprehension while the rukka was still being
prepared by SI Vinay Tyagi. While PW11 SI
Rajpal Dabas stated that the investigation
was handed over to him by Insp. Sanjay
Dutt, PW1 SI Ravinder Kumar Tyagi has
stated that investigation of the case was
assigned to SI Rajpal Dabas by PW7 SI
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Vinay Tyagi. No written order of any, senior
police official regarding assignment of
investigation was produced by the
prosecution.
48. In view of the ratio laid down in the cases of
Ram Prakash vs. State and Mohd. Masoom vs. State
of NOT of Delhi (supra), the prosecution has been
unable to prove its case beyond reasonable doubt
against the accused persons, benefit of which has to
go to them. Both Muraif Qamar and Irshad Ali@
Deepak are thus acquitted of the charges framed
against them.”
11. The State is in appeal against the said impugned judgment dated 22nd
December, 2016.
Submissions on behalf of the Parties
12. Mr. Bahri, ld. APP submits that in the present case a huge quantity of
explosives has been recovered from the Respondents. Ld. APP argues that
the charges had been framed qua the Respondents vide order dated 20th May,
2016 and the Trial Court has acquitted the Respondents basically by finding
fault with the manner in which the case was investigated/conducted by the
officials of the Special Cell of the Delhi Police.
13. It is further the submission on behalf of the State that though the
Central Bureau of Investigation (hereinafter, ‘CBI’ ) has also investigated this
case and a preliminary report as also a Closure Report has been filed on
behalf of the CBI, the same cannot be the basis for acquitting the
Respondents.
14. According to the ld. APP, the Trial Court erred in observing that the
absence of public witnesses during the raid casts a doubt upon the version of
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the police officials or upon the efforts allegedly undertaken by them to
associate passersby with the raid. Mr. Bahri, ld. APP submits that few public
witnesses were called by the police officials, however, they did not agree to
come forward.
15. Moreover, ld. APP submits that there are sufficient case laws in
support of the proposition that police officials are themselves sufficient
witnesses and no independent witness would be needed to support their
version. In support of this submission, the following judgments are relied
upon by Mr. Bahri, ld. APP:
● Baldev Singh v. State of Haryana, (2015) 17 SCC 554
● Karnel Singh v. State of M.P., 1995 CRL. L.J. 4173
● Ambika Prasad v. State (Delhi Admn.), (2000) 2 SCC 646
16. Ld. APP relies upon the decision in Baldev Singh (Supra) to argue
that the evidence of police officers cannot be discarded merely on the ground
that they belong to the police force and they have the desire to see the success
of the case. The relevant portion of the said decision reads as under:
“10. There is no legal proposition that evidence of police
officials unless supported by independent evidence is
unworthy of acceptance. Evidence of police witnesses
cannot be discarded merely on the ground that they
belong to police force and interested in the
investigation and their desire to see the success of the
case. Prudence however requires that the evidence of
police officials who are interested in the outcome of the
result of the case needs to be carefully scrutinised and
independently appreciated. Mere fact that they are
police officials does not by itself give rise to any doubt
about their creditworthiness. ”
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17. Ld. APP further relies upon the decision in Karnel Singh (Supra) to
argue that loopholes in the investigation solely cannot lead to the acquittal
of the accused person. The relevant portion of the said decision reads as
under:
“4. We have very carefully scrutinized the
evidence having regard to the fact that (PW6) the
investigation officer had not taken the care expected of
him. He did not record the statements of the two
witnesses nor did he refer to the attachment of the
`Chaddi' in his oral evidence. That was a very vital piece
of evidence to which little or no attention was paid. If the
seizure of that article was properly proved, the article
with semen stains would have lent strong corroboration
to the evidence of the prosecutrix. There is no doubt that
the investigation was casual and defective. But despite
these deficiencies both the courts below have recorded
a conviction. The question is: are they right?
5. Notwithstanding our unhappiness regarding the
nature of investigation, we have to consider whether the
evidence on record, even on strict scrutiny, establishes
the guilt. In cases of defective investigation the court has
to be circumspect in evaluating the evidence but it would
not be right in acquitting an accused person solely on
account of the defect; to do so would tantamount to
playing into the hands of the investigating officer if the
investigation is designedly defective. Any investigating
officer, in fairness to the prosecutrix as well as the
accused, would have recorded the statements the
statements of the two witnesses and would have drawn
up a proper seizure-memo in regard to the `Chaddi'.
That is the reason why we have said that the
investigation was slip shod and defective.
6. We must admit that the defective investigation gave
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us some anxious moments and we were at first blush
inclined to think that the accused was prejudiced. But
on closer scrutiny we have reason to think that the
loopholes in the investigation were left to help the
accused at the cost of the poor prosecutrix, a labourer.
To acquit solely on that ground would be adding insult
to injury .”
18. Further, as per the ld. APP, the Forensic Science Laboratory
(hereinafter, ‘FSL’ ) Report also corroborates the fact that the explosives
were present with the Respondents when they were apprehended by the
officials of the Special Cell.
19. Ld. APP further submits that non-examination of the bus driver and
conductor of the JKSRTC bus cannot be held against the prosecution
inasmuch as when such a huge team of police officials were involved in the
present case, especially against Respondents, who are stated to be involved
with a terrorist outfit i.e., Al-Badr. Ld. APP emphasizes that it is not unusual
for independent witnesses to not come forward to give evidence.
20. Mr. Bahri, ld. APP has pointed out that as recorded in paragraph 23 of
the impugned judgment, the Respondents have admitted certain documents
including the sanction orders for their prosecution under Section 39 of the
Arms Act, 1959. Ld. APP also highlights the fact that the investigation was
fully monitored by Senior Police Officials of the Special Cell, therefore
unfounded allegations cannot be made.
21. Finally, the ld. APP submits that the Special Cell of the Delhi Police
having itself conducted a detailed investigation, the Respondents cannot,
merely on the basis of the Closure Report filed by the CBI, be stated to have
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no involvement in the commission of such a serious offence.
22. On the other hand, according to Mr. M. Sufian Siddiqui, ld. Counsel
for the Respondents, the entire material placed on record by the Special Cell
of the Delhi Police was planted. Mr. Siddiqui, ld. Counsel submits that there
is no basis for the prosecution to argue that the alleged material which was
seized by the officials of the Special Cell, was actually seized from the
Respondents and was not planted.
23. Ld. Counsel for the Respondents further submits that in such a busy
area, from where the Respondents were apprehended, no independent
witnesses had given evidence to support the case of the prosecution.
24. The further submissions of Mr. Siddiqui, ld. Counsel is that the CBI
was directed to conduct an independent investigation in W.P.(CRL.)
501/2006 , titled Mohd. Kashif Ali v. The State of NCT of Delhi and Anr.
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wherein vide order dated 9 May, 2006, considering the doubts expressed by
the Respondents, a preliminary enquiry was directed to be conducted. The
relevant portion of the said order is set out below:
“I have heard learned counsel for the parties. Learned
counsel for the petitioner has invited the attention of the
Court to various, attendant circumstances around the
time of the alleged arrest of the accused persons on
09.02.2006. The circumstances disclosed do cast a
suspicion on the case of the prosecution in regard to the
manner in which Mohd. Moarif Qumar @ Nawab and
the other accused Mohd. Irshad Ali were apprehended
by the officials of Special Cell and about the recovery of
the contraband articles like explosives and detonators.
The offences U/Ss 121/121A/122/123/120-B IPC read
with Section 4/5 of explosive and Substance Act and
Section 25 of Arras Act are very grave offences and may
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lead to a very severe punishment, if the charges are
established. Therefore, without commenting any
further on the merits of the matter, this Court is of the
considered opinion that it is a fit case where all inquiry
by some independent agency is called for in the
allegations made, in the present petition. Accordingly,
the CBI, in the first instance, is called upon to
undertake an inquiry into the matter and submit a
report to this Court within four weeks .”
25. Subsequent to the preliminary report filed by the CBI, the Court again
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vide order dated 4 July, 2007 in Mohd. Kashif Ali (Supra) specifically
records that the preliminary report of the CBI itself shows that the arrest of
the Respondents does not inspire confidence. After considering this position,
the Court directed an in-depth investigation into the matter. The said order is
set out below:
“Learned counsel for CBI states that the inquiry report
has been filed in a sealed cover with the Registrar
General of this court. A copy of the said report has also
been placed on the record of this court. Counsel further
states that according to the Report, the arrest of Moarif
Quamar and Irshad Ali on 9.2.2006, rus shown in the
case file of FIR No. 10/2006, Police Station Special
Cell, Lodhi Road, Delhi, pursuant to the alleged
recovery of anns, ammunitions, explosives etc. from
them at Mukarba Chowk, G.T. Karnal Road, Delhi,
does not inspire confidence. He, however, hastens to
clarify that this is the prima facie view of she CBI and
that a detailed probe will be required in case a
conclusive finding has to be arrived at.
In this view of the matter, in my opinion, it would be
expedient if a thorough and detailed probe is carried out
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into the matter by the CBI, moreso, as charge has not
yet been framed and the trial is still to take off . CBI is
accordingly directed to conduct an in-depth
investigation into the case. The State shall fully
cooperate in the same and hand over such material to
the CBI, as may be required by the CBI for
undertaking further investigation relating to FIR No.
10/2006, Police Station Special Cell, Lodhi Road,
Delhi. Learned Counsel for the petitioners assures this
court hat till the investigation is completed by the CBI,
the Petitioners shall not move any application for bail
either before the learned trial court or this court .
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List the case of awaiting the report of the CBI on 24
October, 2007.
A copy of this order be given dasti to learned counsel
for the CBI as well as learned Standing Counsel for the
State, as prayed.
26. It is the submission on behalf of the Respondents that it is only after
these two orders which were passed by the High Court of Delhi that the CBI
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filed a detailed Closure Report dated 11 November, 2008. Ld. Counsel
submits that in fact, the present matter had even travelled to Supreme Court
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and vide judgment dated 13 December, 2012 in Vinay Tyagi v. Irshad Ali
@ Deepak & Ors., Criminal Appeal 2040-2041 of 2012, the Supreme Court
had directed as under:-
“50. Once the Court, has-taken this view, there, is no
question of treating the first report as being withdrawn,
cancelled or capable of being excluded from the records
by the implication. In fact, except by a specific order of
a higher court competent to make said orders, the
previous as well as supplementary report shall form
part of the record which the trial court is expected to
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consider for arriving, at any appropriate conclusion, in
accordance with law. It is also interesting to note that
the CBI itself understood the order of the court and
conducted only 'further investigation' as is evident from
the status report filed by the CBI before the High Court
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on 28 November, 2007.
51. In our considered view, the trial court has to
consider the entire record, including both the Delhi
Police Report filed under Section ,173(2) of the Code
as well as the Closure Report filed by the CBI and the
documents filed along with these reports.
52. It appears, the trial court may have three options,
firstly, it may accept the application of accused for
discharge. Secondly, it may direct that the trial may
proceed further in accordance with law and. thirdly, if
it is dissatisfied any important aspect of investigation
already conducted and in its considered opinion, it is
just, proper and. necessary in the interest of justice to
direct 'further investigation', it may do so.
53. Ergo, for the reasons recorded above, we modify
the order of the High Court impugned in the present
appeal to the above extent and direct the trial court to
proceed with the case further in accordance with law.”
27. According to Mr. Siddiqui, ld. Counsel, a perusal of the above would
show that the Trial Court had the opportunity of considering the Closure
Report of the CBI and the other course of action as was contained in the said
judgment. The trial in this matter has then continued and the Respondents
have been acquitted vide the impugned judgment.
28. Reliance is also placed upon the extracts from the Closure Report of
the CBI to show that there was sufficient evidence including the Call Data
Record (hereinafter, ‘CDR’ ) to show how the Respondents were in touch
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with senior officials of the IB and have also received calls from the landline,
etc. of the Ministry of Home Affairs as well.
29. Ld. Counsel for the Respondents has placed reliance upon the
following decisions:
● Mallappa v. State of Karnataka, (2024) 3 SCC 544;
● Muralidhar v. State of Karnataka, (2014) 5 SCC 730;
● State of Goa v. Sanjay Thakran, (2007) 3 SCC 755; and
● Ramesh v. The State of Himachal Pradesh, Criminal Appeal No. 218
of 2017.
30. According to ld. Counsel for the Respondent, the Supreme Court in
the decision in Mallappa (Supra) discussed the ‘two-views theory’ and how
the same is to be resolved in favour of the accused after appreciating the
evidence. The relevant portion of the said decision reads as under:
“25. We may firstly discuss the position of law regarding
the scope of intervention in a criminal appeal. For, that is
the foundation of this challenge. It is the cardinal principle
of criminal jurisprudence that there is a presumption of
innocence in favour of the accused, unless proven guilty.
The presumption continues at all stages of the trial and
finally culminates into a fact when the case ends in
acquittal. The presumption of innocence gets concretised
when the case ends in acquittal. It is so because once the
trial court, on appreciation of the evidence on record, finds
that the accused was not guilty, the presumption gets
strengthened and a higher threshold is expected to rebut the
same in appeal.
26. No doubt, an order of acquittal is open to appeal and
there is no quarrel about that. It is also beyond doubt that
in the exercise of appellate powers, there is no inhibition on
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the High Court to reappreciate or re-visit the evidence on
record. However, the power of the High Court to
reappreciate the evidence is a qualified power, especially
when the order under challenge is of acquittal. The first and
foremost question to be asked is whether the trial court
thoroughly appreciated the evidence on record and gave
due consideration to all material pieces of evidence. The
second point for consideration is whether the finding of the
trial court is illegal or affected by an error of law or fact. If
not, the third consideration is whether the view taken by the
trial court is a fairly possible view. A decision of acquittal
is not meant to be reversed on a mere difference of opinion.
What is required is an illegality or perversity.
27. It may be noted that the possibility of two views in a
criminal case is not an extraordinary phenomenon. The
“two-views theory” has been judicially recognised by the
courts and it comes into play when the appreciation of
evidence results into two equally plausible views. However,
the controversy is to be resolved in favour of the accused.
For, the very existence of an equally plausible view in
favour of innocence of the accused is in itself a reasonable
doubt in the case of the prosecution. Moreover, it reinforces
the presumption of innocence. And therefore, when two
views are possible, following the one in favour of innocence
of the accused is the safest course of action. Furthermore,
it is also settled that if the view of the trial court, in a case
of acquittal, is a plausible view, it is not open for the High
Court to convict the accused by reappreciating the
evidence. If such a course is permissible, it would make it
practically impossible to settle the rights and liabilities in
the eye of the law.”
31. Ld. Counsel for the Respondents has placed reliance upon the decision
of the Supreme Court in Muralidhar (Supra) wherein the approach to be
adopted by an Appellate Court while dealing with an appeal against acquittal
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has been considered. The relevant portion of the said decision reads as under:
“12. The approach of the appellate court in the appeal
against acquittal has been dealt with by this Court in
Tulsiram Kanu [Tulsiram Kanu v. State, 1951 SCC 92 :
AIR 1954 SC 1 : 1954 Cri LJ 225] , Madan Mohan Singh
[Madan Mohan Singh v. State of U.P., AIR 1954 SC 637
: 1954 Cri LJ 1656] , Atley [Atley v. State of U.P., AIR
1955 SC 807 : 1955 Cri LJ 1653] , Aher Raja Khima
[Aher Raja Khima v. State of Saurashtra, AIR 1956 SC
217 : 1956 Cri LJ 426] , Balbir Singh [Balbir Singh v.
State of Punjab, AIR 1957 SC 216 : 1957 Cri LJ 481] ,
M.G. Agarwal [M.G. Agarwal v. State of Maharashtra,
AIR 1963 SC 200 : (1963) 1 Cri LJ 235] , Noor Khan
[Noor Khan v. State of Rajasthan, AIR 1964 SC 286 :
(1964) 1 Cri LJ 167] , Khedu Mohton [Khedu Mohton
v. State of Bihar, (1970) 2 SCC 450 : 1970 SCC (Cri)
479] , Shivaji Sahabrao Bobade [Shivaji Sahabrao
Bobade v. State of Maharashtra, (1973) 2 SCC 793 :
1973 SCC (Cri) 1033] , Lekha Yadav [Lekha Yadav v.
State of Bihar, (1973) 2 SCC 424 : 1973 SCC (Cri) 820]
, Khem Karan [Khem Karan v. State of U.P., (1974) 4
SCC 603 : 1974 SCC (Cri) 639] , Bishan Singh [Bishan
Singh v. State of Punjab, (1974) 3 SCC 288 : 1973 SCC
(Cri) 914] , Umedbhai Jadavbhai [Umedbhai
Jadavbhai v. State of Gujarat, (1978) 1 SCC 228 : 1978
SCC (Cri) 108] , K. Gopal Reddy [K. Gopal Reddy v.
State of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305]
, Tota Singh [Tota Singh v. State of Punjab, (1987) 2
SCC 529 : 1987 SCC (Cri) 381] , Ram Kumar [Ram
Kumar v. State of Haryana, 1995 Supp (1) SCC 248 :
1995 SCC (Cri) 355] , Madan Lal [Madan Lal v. State
of J&K, (1997) 7 SCC 677 : 1997 SCC (Cri) 1151] ,
Sambasivan [Sambasivan v. State of Kerala, (1998) 5
SCC 412 : 1998 SCC (Cri) 1320] , Bhagwan Singh
[Bhagwan Singh v. State of M.P., (2002) 4 SCC 85 :
2002 SCC (Cri) 736] , Harijana Thirupala [Harijana
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Thirupala v. Public Prosecutor, (2002) 6 SCC 470 :
2002 SCC (Cri) 1370] , C. Antony [C. Antony v. K.G.
Raghavan Nair, (2003) 1 SCC 1 : 2003 SCC (Cri) 161]
, K. Gopalakrishna [State of Karnataka v. K.
Gopalakrishna, (2005) 9 SCC 291 : 2005 SCC (Cri)
1237] , Sanjay Thakran [State of Goa v. Sanjay
Thakran, (2007) 3 SCC 755 : (2007) 2 SCC (Cri) 162]
and Chandrappa [Chandrappa v. State of Karnataka,
(2007) 4 SCC 415 : (2007) 2 SCC (Cri) 325] . It is not
necessary to deal with these cases individually. Suffice
it to say that this Court has consistently held that in
dealing with appeals against acquittal, the appellate
court must bear in mind the following:
(i) There is presumption of innocence in favour of
an accused person and such presumption is
strengthened by the order of acquittal passed in his
favour by the trial court;
(ii) The accused person is entitled to the benefit of
reasonable doubt when it deals with the merit of
the appeal against acquittal;
(iii) Though, the powers of the appellate court in
considering the appeals against acquittal are as
extensive as its powers in appeals against
convictions but the appellate court is generally
loath in disturbing the finding of fact recorded by
the trial court. It is so because the trial court had
an advantage of seeing the demeanour of the
witnesses. If the trial court takes a reasonable
view of the facts of the case, interference by the
appellate court with the judgment of acquittal is
not justified. Unless, the conclusions reached by
the trial court are palpably wrong or based on
erroneous view of the law or if such conclusions
are allowed to stand, they are likely to result in
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grave injustice, the reluctance on the part of the
appellate court in interfering with such
conclusions is fully justified; and
(iv) Merely because the appellate court on
reappreciation and re-evaluation of the evidence is
inclined to take a different view, interference with
the judgment of acquittal is not justified if the view
taken by the trial court is a possible view. The
evenly balanced views of the evidence must not
result in the interference by the appellate court in
the judgment of the trial court.”
32. Finally, ld. Counsel for the Respondents submits that the impugned
judgment is a detailed judgment and the same does not warrant interference.
33. In rebuttal, Mr. Bahri, ld. APP submits that the Supreme Court vide
th
judgment dated 13 December, 2012 in Vinay Tyagi (Supra) has made it
clear that the Trial Court could proceed in any of the three routes as it deems
appropriate.
34. Moreover, as per Mr. Bahri, ld. APP, it is impossible for any recovery
of this quantum to be planted with anyone. Ld. APP submits that in terms of
Section 114(e) of the Indian Evidence Act, 1872, where police officials act
in discharge of their official duties, a presumption attaches in favour of the
legality and regularity of such acts.
35. Finally, ld. APP submits that even if the Respondents are presumed to
be informers, carrying of such high quantities of explosives and other arms
cannot be justified. Reliance is placed upon the decision in State of Haryana
v. Bhajan Lal, 1992 Supp (1) SCC 335 to the effect that in such cases, the
Court cannot interfere.
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Analysis and Findings
36. The issue that would have to be determined in this appeal is as to
th
whether in terms of the Supreme Court judgment dated 13 December, 2012
in Vinay Tyagi (Supra) and the three options that were set out therein,
whether the acquittal deserves to be upheld.
37. In order to decide this issue, the findings in the Closure Report of the
CBI as also the evidence, which was led before the Trial Court would have
to be analyzed. The prosecution had examined a total of 11 witnesses, most
of whom are police officials.
PW-1 SI Ravinder Kumar Tyagi
38. PW-1 SI Ravinder Kumar Tyagi was posted at the Special Cell, New
Delhi Range at the time of the incident. According to him, on 9th February,
2006, SI Vinay Tyagi, who appeared as PW-7 in the present case, had got
information that Respondent No. 2-Irshad Ali @ Deepak along with
Respondent No. 1-Mohd. Muraif Quamar @ Nawab was coming from
Jammu in a JKSRTC bus along with arms and ammunition.
39. A raiding party is stated to have been formed under the supervision of
Inspector Sanjay Dutt. It is admitted by PW-1 that three private cars and two
two-wheelers were used by the raiding party. According to PW-1, when the
raiding party reached Mukarba Chowk, the informer is stated to have
identified the Respondents. The Respondents were thereafter followed and
when they were about to cross the outer ring road, they were apprehended.
Upon search, the following items were recovered from the Respondent No.1-
Muraif Qamar:
● A Chinese Star make loaded pistol of .30 bore containing 8 live
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cartridges;
● White envelope with three non-electronic detonators; and
● One ABCD timer of green colour and one ABCD timer of cream
colour.
40. In the case of Respondent No. 2-Irshad Ali @ Deepak, the following
items were recovered:
● A Chinese Star make loaded pistol of .30 bore containing 8 live
cartridges; and
● A black coloured polythene in which a mixture of black and white oil
based explosive is allegedly concealed, weighing two kilos.
41. Thereafter, the rukka is stated to have prepared and the FIR was
registered. Both the Respondents were arrested by PW-11 SI Rajpal Dabas
and their disclosure statements were recorded. PW-1 identified both the
Respondents when the evidence of PW-1 was being recorded.
42. In cross-examination, PW-1 admitted that the official vehicles of the
Special Cell of the Delhi Police were not used, though the same were
available in the office. PW-1 also admitted that no bullet proof jacket was
worn by any of the members of the police team. As per PW-1, there was an
IGL gas station and a police booth nearby from the spot from where the
Respondents were apprehended. However, none of the persons from the said
two places were associated with the raid.
43. PW-1 during cross-examination was unable to give the names of the
passersby, who were allegedly requested. PW-1 also could not state as to
whether the JKSRTC bus was a government owned bus or a private bus.
PW-1 also admitted that the driver and the conductor of the bus were not
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associated with the proceedings. PW-1 further stated that the Respondents
had tried to flee but were overpowered.
44. PW-1 also confirms that finger prints were not lifted from the weapons
allegedly seized from the Respondents. PW-1 in his statement denies the
allegation that the Respondents were wrongly implicated.
PW-2 Shri K.R. Mendiratta
45. PW-2 Shri K.R. Mendiratta from the Home Department of the
GNCTD deposed in respect of sanction for prosecution which were obtained
from the Hon’ble Lieutenant Governor.
PW-3 Retd. SI Krishan Pal
46. PW-3 Retd. SI Krishan Pal confirmed that he had written the FIR in
the present case and registered the same. PW-3 also exhibited the present
FIR.
PW-4 HC Satinder
47. PW-4 HC Satinder confirmed that he had been handed over the
authority letter by SI R.S. Sehrawat for collecting the report of the CFSL
laboratory from Chandigarh. PW-4 stated that the report was given to the
Investigating Officer and exhibits were deposited in the malkhana .
PW-6 Inspector Subhash
48. PW-6 Inspector Subhash, who was the SHO PS. Sonia Vihar gave his
testimony, which was similar to the testimony of PW-1. In his cross-
examination, he did not recollect whether any government vehicle was
available at the relevant time for conducting the raid or not. PW-6 confirmed
that movement related to private vehicles is not recorded in the logbooks
maintained by the Special Cell. He confirmed that bullet proof jackets were
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not issued to him but he stated that the weapon he was carrying during the
raid was issued to him one day prior the incident.
49. PW-6 stated that Inspector Sanjay Dutt had contacted 7 or 8 public
persons but no one came forward to become an independent witness. PW-6
also did not recollect if any member of the raiding team had put on the bullet
proof jackets or not but he confirmed that all raiding team members were
armed with weapons. PW-6 did not recollect if the Investigating Officer had
visited the police booth or IGL gas station to look for public witnesses or not
at the time of the incident. PW-6 confirmed that the spot from where the
Respondents were apprehended is very busy and there is heavy movement
of human and vehicular traffic as the said road where the raiding party was
standing connected G.T. Karnal Road with the Outer Ring Road. PW-6
stated that the JKSRTC bus was a government bus and had made a routine
stop. The said bus also had a driver and conductor, whose names and
particulars were not obtained by the officials of the Special Cell.
50. PW-6 in his statement also stated that the Respondents had tried to
flee themselves but were overpowered by the police officials. PW-6
confirmed that he had prepared the seizure memo and that the Closure Report
of the CBI had recommended action to be taken against himself, PW-1 SI
Ravinder Kumar Tyagi and PW-7 Vinay Tyagi. PW-6 also denies the
suggestion that the Respondents were falsely implicated or the fact that the
nd
Respondents were picked up from Kashmere Gate on 22 December, 2005
and on 13th December, 2005 respectively and were kept in illegal
confinement.
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th
51. PW-6 also denied that the case set up on 9 February, 2006 was a case
of false implication. PW-6 further denied the suggestion that SHO PS.
Bhajanpura had got a missing report published relating to Respondent No.1-
th
Muraif Qamar in Hindustan Times on 9 February, 2006, which led to this
case being set up against them.
PW-7 Inspector Vinay Tyagi
52. PW-7 Inspector Vinay Tyagi stated that information was received
from a Central Investigating Agency that a Kashmir based organization had
set up a base in Delhi. PW-7 deposed that one Irshad Ali @ Deepak was
frequently visiting Kashmir and collecting explosives, arms and ammunition
through their handlers. According to PW-7, a team was formed under the
leadership of Late Shri Mohan Chand Sharma (passed away in the Batla
House Encounter) , who had directed ACP Sanjiv Yadav to develop on this
information, which was received. According to him, the two Respondents
were associated with a militant organization and had gone to Kashmir to
collect explosives, arms and ammunition. PW-7 thereafter, narrated the
th
incident which occurred on 9 February, 2006. PW-7 also deposed relating
to the entire raiding team and the details thereof. PW-7 deposed in respect
of how the Respondents were apprehended.
53. The chronology of events as narrated by PW-7 is similar as was
deposed by PW-1 and PW-6. PW-7 also stated that during interrogation, the
Respondents had revealed that they had received the explosives, arms and
ammunition from their handler in Jammu and Kashmir and the same were to
be used for terrorist activities in Delhi. PW-7 identified all the seized
material.
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54. PW-7 stated that he had picked up the call of the secret informer,
which was on a landline. PW-7 further stated in the cross-examination that
the bullet proof jackets were issued to the team but he could not recall how
many jackets were issued. PW-7 confirmed that vehicle numbers of the
vehicles used in the raid were not mentioned in the DD entry and that no
logbook of private vehicles is maintained. PW-7 stated that unmarked
vehicles and official vehicles were not used as the same could be easily
recognized by the Respondents as belonging to the police.
55. PW-7 stated that 4 to 5 passersby were asked to join the investigation,
which they refused to do. He confirmed that he was not wearing a bullet
proof jacket. PW-7 stated that the secret informer was standing with him and
Inspector Sanjay Dutt when the Respondents were identified.
56. PW-7 also deposed that he was aware of the order of the Delhi High
Court, which had directed the CBI to investigate the apprehension of the
Respondents and that the CBI in its final report had recommended action
against him. He denied the allegation of false implication and of illegal
confinement of the Respondents.
PW-9 Shri Narender Kumar
57. PW-9 Shri Narender Kumar, who was then the Divisional
Commissioner of Delhi deposed that he had ordered sanction to prosecute
the Respondents under the provisions of Explosive Substances Act, 1908.
PW-11 Inspector Rajpal Dabas
58. PW-11 Inspector Rajpal Dabas also narrated the chronology of events,
just like the other witnesses. In his cross-examination, he stated that he did
not check if any official vehicle was available or not during the time of the
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raid. PW-11 reached the spot at 9:30 PM. PW-11 stated that upon the arrest
of Respondent No.1- Muraif Qamar, he had informed his relative about his
arrest around mid-night.
59. PW-11 stated that he had not visited Srinagar at any point of time and
no search was conducted at Srinagar before obtaining Non-Bailable
Warrants of the Court of Chief Metropolitan Magistrate. PW-11 also stated
that fingerprints were not lifted from the weapons seized from the
Respondents. PW-11 denied the suggestion that the Respondents were
working as informers or that they were falsely implicated. PW-11 also
denied the suggestion relating to the missing report being published by PS.
Bhajanpura.
Closure Report filed by the CBI
60. At this stage, after analysing the entire evidence, it would be relevant
to consider the report of the CBI which had also looked into this case. The
th
final report submitted by the CBI pursuant to the order dated 4 July, 2007
passed by this Court in Mohd. Kashif Ali (Supra) was subsequent to the
th
preliminary inquiry report dated 30 May, 2007. CBI during the course of
investigation then went into the FIR and chronology of events, which was
given by the Special Cell of Delhi Police.
61. According to the CBI, Respondent No.1-Muraif Qamar had come to
Delhi in the year 2000 to start the business of manufacturing photo album
boxes at Mahavir Enclave near Palam Airport and thereafter, in Janakpuri
and Nabi Karim. Finally, Muraif Qamar had shifted to Bhajanpura.
According to the CBI, one Irshad Ali i.e., Respondent No. 2, who was a
friend of Muraif Qamar had introduced him to the officials of Special Cell.
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62. Respondent No. 1-Muraif Qamar had come in contact with one Lalit
Mohan Negi, Inspector, Special Cell of Delhi Police and was working as an
nd
informer for him. On 22 December, 2005, Respondent No. 1-Muraif Qamar
is stated to have left his workshop at around 11:00 AM to collect some raw
materials, however, he did not return till the night on the said date. On the
same day, two persons had visited his workshop enquiring about him and
even obtained his mobile number. The brother of Muraif Qamar was
informed about the disappearance of his brother and he came to the workshop
on the next date to make enquiries.
th
63. On 28 December, 2005, the brother of the Respondent No.1-Muraif
Qamar went to PS. Bhajanpura and a missing report was registered. In
various newspapers, missing advertisements pertaining to Respondent-
Muraif Qamar were also published. The said missing report was also sent by
the brother of Muraif Quamar to various dignitaries, ministries, etc. As per
the report filed by the CBI, the whereabouts of Muraif Qamar was not known
th
until he was arrested on 9 February, 2006 by the Special Cell of the Delhi
Police.
64. Insofar as the Respondent No.2-Irshad Ali is concerned, he was also
residing in Mubarakpur, Nangloi, Delhi. He knew Muraif Qamar from
childhood as they studied in the same Madarsa in Darbhanga, Bihar.
Respondent No.2-Irshad Ali was plying an auto rickshaw for 6 to 7 years
before he went missing.
65. The Closure Report of the CBI claims that one Khalid, who was an
acquaintance of Respondent No.2-Irshad Ali had a dispute with him, but
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since 2000, he was working as an informer to two inspectors of Special Cell,
Delhi Police.
66. The CDR records of both the Respondents were also analyzed by the
nd
CBI, which showed that on 22 December, 2005 the mobile number of
Muraif Qamar was in Bhajanpura till about 11:00 AM and thereafter, shifted
to Kashmere Gate till around 12:10 PM. However, subsequently, the said
mobile number was switched off. On the said mobile number, Muraif Qamar
had 16 calls on the said date with Irshad Ali till 12:10 PM.
67. Various calls were analyzed on both the Respondent’s mobile
numbers, which also showed that the last call from Irshad Ali’s phone was
th
about 11:30 hours on 12 December, 2005.
68. The investigation conducted by the CBI had disclosed facts:
“i) There is nothing on record to show that they are the
members of Al-badr, a terrorist outfit, particularly
when no connecting documents were recovered from
them. I t becomes all the more important in view of the
fact that some of the Delhi Police and Intelligence
Officers have stated that they are their informers.
ii) No independent person has witnessed the seizure of
arms, ammunitions and explosives, at a public place at
around 7:30 pm on 09.02.06. The bus driver and
conductor of JKSRTC bus were not even examined.
However during the investigation by CBI S/Sh- Lalit
Kumar and Guddu Kumar Bhagat the vendor/guard at
Mukarba Chowk had stated that Delhi Police officials
has contacted them, on 09.02.2006 but did not asked
them to witness the proceedings at the alleged scene of
occurrence.
iii) No searches were conducted at the residences or
workplaces of the two accused. after their arrest.
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iv) The charge sheet filed by the police does not disclose
as to when and for what the two accused Moarif Quamar
and Mohd. Irshad All went to Jammu and Kashmir.
v) As per records prepared by SI Raj Pal Dabas, the
arms and ammunitions were delivered by Sheikh Pervej
and Faiyaz Ahmed Radar, both residences of Batmaloo,
Srinagar to, Irshad Ali and Moarif Qamar. However,
the police does not appear to have made any effort to
locate and interrogate/ them. They simply obtained
NBWs from the court and sent them to the SSP,
Srinagar, for execution, The News was later returned
un-served due to incorrect/ non-existent addresses, In
fact, the police team went to Jammu and Kashmir to
conduct investigation regarding source of seized arms
and Explosives at a much later dated i.e. on 22.6. 06,
about four and half months after the alleged seizure and
one and a half month after filing of the charge sheet on
6.5.06 and even after the matter was handed over to CBI
on 9.5.06.
vi) The two tickets pertaining to JKSRTC were not
seized from the personal search of Irshad Ali on
9.2.2006 at the time of his arrest. The bus tickets were
shown recovered from Irshad Ali on 10.2.06 which is
highly suspicious.
vii) Two of the vendors/guards at Mukarba Chowk have
stated that Delhi Police officials had contacted them but
did not ask them to witness the proceeding. This is
important as there are no independent witnesses to the
recovery of contraband from the accused persons. ”
69. The CBI in its Closure Report dated 11th November, 2008 concluded
as under:
“ The Investigation conducted by CBI has, thus,
established that Moarif Qamar and Irshad Ali were
picked up on 22.12.2005 & 13.12.2005 respectively and
thereafter kept in illegal detention till 09.02.2006. The
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identity of the persons responsible for kidnapping
Moarif Qamar and Irshad Ali and for keeping them
under illegal detention could not be established during
investigation conducted so far. The investigation
conducted by CBI has also established that the
recovery of contraband effected from Moarif Qamar
and Irshad Ali by SI Vinay Tyagi which was witnessed
by SI Subhash Vats and Ravinder Kumar Tyagi on
09.02.2006 at Mukarba Chowk, Delhi, is false and that
false evidence/record has been fabricated to implicate
Irshad Ali and Moarif Qamar for an oblique motive.
Further investigation under provisions of Section
173(8) Cr.P.C. is being continued in regard to the role
of other police officials who were a part of the inner
cordon as also to fix up the identity of the persons
responsible for picking up and in legal detention of
Moarif Qamar and Irshad Ali. Additional list of
witnesses and documents, if any, will be submitted to
this Hon'ble Court ”
70. Thus, a perusal of the Closure Report of the CBI reveals that as per
the CBI there was no connection established between the Respondents and
Al-Badr and that the entire incident, which is stated to have taken place on
th
9 February, 2006, did not inspire confidence. The CBI further concluded
that the police officials of the Special Cell of the Delhi Police appear to have
falsely implicated the Respondents in the said incident.
71. In the light of the above evidence and the CBI Closure Report, the
Trial Court arrived at the following findings:
“(a) Private vehicles were used by the police team
during their raid. The details of these vehicles have not
been mentioned in the DD Entry. No logbooks of use of
private vehicles have been maintained. None of them
could recall the registration numbers of these private
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vehicles. PW7 in cross-examination has stated that their
office has been provided unmarked vehicles of make
Mahindra Scorpio and Maruti Gypsy but the same were
not used in the raid. He tried to explain that these
vehicles could be easily recognized by the accused
persons as belonging to the police.
(b) The site plan Ex.PW1/D1 does not reflect the place
where the police officials were standing. While PW1 and
PW6 could state the point in the site plan where they had
been placed but could not state where other members of
the police team were standing. The site plan does not
reflect the place where the police vehicles had been
parked.
(c) Admittedly only passersby were asked by the police
team to join the investigation. PW1, PW5 and PW6 do
state that a DTC Deport, an IGL Gas Station and a
Police Booth, were near the place of the apprehension
but no effort was made to join any persons from these
permanent establishments. Even though the police team
was at the spot of apprehension from 5:30 pm to 2 am,
none of these three witnesses could notice any PCR van
/ local beat staff haying being passed the place of
apprehension. Thus no public witness was associated
with the apprehension of the accused persons.
(d) SI Ravinder Kumar Tyagi PW1 had taken the rukka
drawn by PW7 SI Vinay Tyagi for registration of the
FIR. However PW11 SI Rajpal Dabas to whom further
investigation was assigned had reached the place of
apprehension at the stage of preparation of rukka itself.
PW11 has stated that the investigation was handed over
to him by Insp. Sanjay Dutt while PW1 has stated that
the further investigation of the case was assigned to SI
Rajpal Dabas by PW7 SI Vinay Tyagi.
(e) Although the police had specific information about
the particulars of the JKSRTC bus and its registration
number in which the accused persons were stated to be
come, neither its driver or conductor were associated
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with the investigation. Their statements were not
recorded and they were not made witnesses in this case.
The bus tickets alleged to have recovered from the
personal search of Irshad All has not been verified from
JKSRTC.
(f) No crime team was called to the spot. No efforts were
made to lift any fingerprints from the arms and
ammunition seized from the accused persons.”
Conclusions
72. The above findings of the Trial Court have to be judged on the basis
of the evidence, which is on record. It is an admitted fact that private vehicles
were used in the raid and no record of the same was maintained in the
logbook. No independent passersby were made any witnesses, that too at a
busy chowk like Mukarba Chowk. An IGL gas station and a police booth
being in close vicinity, there is no reason as to why the police officials could
not have asked for some officials from these places to join the raiding team
and be present at the time when the raid was conducted also when the arrest
was affected.
73. The fact of the missing report published by PS. Bhajanpura pertaining
to the Respondent No.1- Muraif Qamar also cannot be disputed. Moreover,
the site plan prepared by the officials of the Special Cell of the Delhi Police
is extremely sketchy and does not show any of the relevant spots i.e., places
where the police officials were present or places where the police booth and
IGL gas station were located. Even the driver and conductor of the JKSRTC
bus were not made any witness to the raid.
74. In fact, if there existed an apprehension that the Respondents were
terrorists, it remains inexplicable as to why the entire police raiding team
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was not wearing bullet-proof jackets, particularly when enormous
contradictions emerge from the testimonies of the various witnesses.
75. In the opinion of this Court, one of the best pieces of evidence in this
case to challenge the Closure Report of the CBI and to dispute the same
would have been the CDR of the Respondents. However, no evidence was
led in respect of the CDR of the Respondent’s mobile phone by the Special
Cell of the Delhi Police, which is discussed in so much detail in the Closure
Report of the CBI. Even the nature of the material recovered would show
that there is a lot of similarity. Moreover, finger prints were not taken from
the weapons recovered from the Respondents, which would have been
impeachable proof of the Respondents carrying the said weapons. The
findings of the Trial Court clearly point towards the fact that the guilt of the
Respondents has not been established.
76. This Court is conscious of the stand of the Delhi police that senior
police officials were involved in the present case and the evidence ought not
to be disbelieved. Obviously, there can be no generalization that the
testimony of police officials cannot be believed without independent
evidence. As held in Baldev Singh (Supra) cited by Mr. Bahri, ld. APP, the
evidence of police officials has to be carefully scrutinized and independently
appreciated . It is very much possible that in some cases, the Court may
convict based on the testimony of police officials. However, it depends on
the facts of each case. In the present case, the Court has to come to the
conclusion on the basis of evidence that the guilt of the Respondents has
been established beyond reasonable doubt. The said threshold cannot be said
to have crossed in this case, especially in view of the findings in the Closure
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Report of the CBI. The Court is clear that the said closure report cannot be
the basis for acquittal but while weighing the evidence on the balance and
considering the fact that the said final report was available in this case with
the police, some steps ought to have been taken to lead better evidence. For
example, the CDR analysis relied upon by the CBI could have been
disproved or some independent witnesses could have been called to prove
the case of the prosecution. While police officials may be doing their
bounden duty, some cases do not cross the threshold required as per law.
This is one such case.
77. It is the settled position in law that when there is an acquittal, the
Appellate Court should be reluctant in interfering with the same unless there
is perversity in the judgment of the Trial Court. The Supreme Court in the
decision in Mohan v. State of Karnataka, (2022) 12 SCC 619 while
discussing the powers that can be exercised by the Appellate Court against
an order of acquittal held as under:
“20. Section 378CrPC enables the State to prefer an
appeal against an order of acquittal. Section 384CrPC
speaks of the powers that can be exercised by the
appellate court. When the trial court renders its
decision by acquitting the accused, presumption of
innocence gathers strength before the appellate court.
As a consequence, the onus on the prosecution
becomes more burdensome as there is a double
presumption of innocence. Certainly, the court of first
instance has its own advantages in delivering its verdict,
which is to see the witnesses in person while they
depose. The appellate court is expected to involve itself
in a deeper, studied scrutiny of not only the evidence
before it, but is duty-bound to satisfy itself whether the
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decision of the trial court is both possible and plausible
view. When two views are possible, the one taken by
the trial court in a case of acquittal is to be followed on
the touchstone of liberty along with the advantage of
having seen the witnesses. Article 21 of the
Constitution of India also aids the accused after
acquittal in a certain way, though not absolute. Suffice
it is to state that the appellate court shall remind itself
of the role required to play, while dealing with a case
of an acquittal.
21. Every case has its own journey towards the truth and
it is the Court's role to undertake. Truth has to be found
on the basis of evidence available before it. There is no
room for subjectivity nor the nature of offence affects its
performance. We have a hierarchy of courts in dealing
with cases. An appellate court shall not expect the trial
court to act in a particular way depending upon the
sensitivity of the case. Rather it should be appreciated if
a trial court decides a case on its own merit despite its
sensitivity.
22. At times, courts do have their constraints. We find
different decisions being made by different courts,
namely, the trial court on the one hand and the appellate
courts on the other. If such decisions are made due to
institutional constraints, they do not augur well. The
district judiciary is expected to be the foundational
court, and therefore, should have the freedom of mind to
decide a case on its own merit or else it might become a
stereotyped one rendering conviction on a moral
platform. Indictment and condemnation over a decision
rendered, on considering all the materials placed before
it, should be avoided. The appellate court is expected to
maintain a degree of caution before making any remark.
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23. This Court, time and again has laid down the law on
the scope of inquiry by an appellate court while dealing
with an appeal against acquittal under Section
378CrPC. We do not wish to multiply the aforesaid
principle except placing reliance on a recent decision of
this Court in Anwar Ali v. State of H.P. [Anwar Ali v.
State of H.P., (2020) 10 SCC 166 : (2021) 1 SCC (Cri)
395] : (SCC pp. 182-85, para 14)
“14.2. When can the findings of fact recorded by a
court be held to be perverse has been dealt with and
considered in para 20 of the aforesaid decision,
which reads as under : (Babu case [Babu v. State of
Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179]
, SCC p. 199)
‘20. The findings of fact recorded by a court can be
held to be perverse if the findings have been
arrived at by ignoring or excluding relevant
material or by taking into consideration
irrelevant/inadmissible material. The finding may
also be said to be perverse if it is “against the
weight of evidence”, or if the finding so
outrageously defies logic as to suffer from the vice
of irrationality. (Vide Rajinder Kumar Kindra v.
Delhi Admn. [Rajinder Kumar Kindra v. Delhi
Admn., (1984) 4 SCC 635 : 1985 SCC (L&S) 131]
, H.B. Gandhi, Excise & Taxation Officer-cum-
Assessing Authority v. Gopi Nath & Sons [H.B.
Gandhi, Excise & Taxation Officer-cum-Assessing
Authority v. Gopi Nath & Sons, 1992 Supp (2) SCC
312] , Triveni Rubber & Plastics v. CCE [Triveni
Rubber & Plastics v. CCE, 1994 Supp (3) SCC
665] , Gaya Din v. Hanuman Prasad [Gaya Din v.
Hanuman Prasad, (2001) 1 SCC 501] , Arulvelu
[Arulvelu v. State, (2009) 10 SCC 206 : (2010) 1
SCC (Cri) 288] and Gamini Bala Koteswara Rao
v. State of A.P. [Gamini Bala Koteswara Rao v.
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State of A.P., (2009) 10 SCC 636 : (2010) 1 SCC
(Cri) 372] )’
It is further observed, after following the decision of
this Court in Kuldeep Singh v. Commr. of Police
[Kuldeep Singh v. Commr. of Police, (1999) 2 SCC
10 : 1999 SCC (L&S) 429] , that if a decision is
arrived at on the basis of no evidence or thoroughly
unreliable evidence and no reasonable person would
act upon it, the order would be perverse. But if there
is some evidence on record which is acceptable and
which could be relied upon, the conclusions would
not be treated as perverse and the findings would not
be interfered with.
14.3. In the recent decision of Vijay Mohan Singh
[Vijay Mohan Singh v. State of Karnataka, (2019) 5
SCC 436 : (2019) 2 SCC (Cri) 586] , this Court again
had an occasion to consider the scope of Section
378CrPC and the interference by the High Court
(State of Karnataka v. Vijay Mohan Singh [State of
Karnataka v. Vijay Mohan Singh, 2013 SCC OnLine
Kar 10732] ) in an appeal against acquittal. This
Court considered a catena of decisions of this Court
right from 1952 onwards. In para 31, it is observed
and held as under : (Vijay Mohan Singh [Vijay
Mohan Singh v. State of Karnataka, (2019) 5 SCC
436 : (2019) 2 SCC (Cri) 586] , SCC pp. 447-49)
‘31. An identical question came to be
considered before this Court in Umedbhai
Jadavbhai [Umedbhai Jadavbhai v. State of
Gujarat, (1978) 1 SCC 228 : 1978 SCC (Cri) 108]
. In the case before this Court, the High Court
interfered with the order of acquittal passed by the
learned trial court on reappreciation of the entire
evidence on record. However, the High Court,
while reversing the acquittal, did not consider the
reasons given by the learned trial court while
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acquitting the accused. Confirming the judgment of
the High Court, this Court observed and held in
para 10 as under : (SCC p. 233)
“10. Once the appeal was rightly entertained
against the order of acquittal, the High Court
was entitled to reappreciate the entire evidence
independently and come to its own conclusion.
Ordinarily, the High Court would give due
importance to the opinion of the Sessions
Judge if the same were arrived at after proper
appreciation of the evidence. This rule will not
be applicable in the present case where the
Sessions Judge has made an absolutely wrong
assumption of a very material and clinching
aspect in the peculiar circumstances of the
case .”
31.1. In Sambasivan [Sambasivan v. State of
Kerala, (1998) 5 SCC 412 : 1998 SCC (Cri) 1320]
, the High Court reversed the order of acquittal
passed by the learned trial court and held the
accused guilty on reappreciation of the entire
evidence on record, however, the High Court did
not record its conclusion on the question whether
the approach of the trial court in dealing with the
evidence was patently illegal or the conclusions
arrived at by it were wholly untenable. Confirming
the order passed by the High Court convicting the
accused on reversal of the acquittal passed by the
learned trial court, after being satisfied that the
order of acquittal passed by the learned trial court
was perverse and suffered from infirmities, this
Court declined to interfere with the order of
conviction passed by the High Court. While
confirming the order of conviction passed by the
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High Court, this Court observed in para 8 as under
: (SCC p. 416)
“8. We have perused the judgment under appeal
to ascertain whether the High Court has
conformed to the aforementioned principles. We
find that the High Court has not strictly
proceeded in the manner laid down by this Court
in Doshi case [Ramesh Babulal Doshi v. State of
Gujarat, (1996) 9 SCC 225 : 1996 SCC (Cri)
972] viz. first recording its conclusion on the
question whether the approach of the trial court
in dealing with the evidence was patently illegal
or the conclusions arrived at by it were wholly
untenable, which alone will justify interference
in an order of acquittal though the High Court
has rendered a well-considered judgment duly
meeting all the contentions raised before it. But
then will this non-compliance per se justify
setting aside the judgment under appeal? We
think, not. In our view, in such a case, the
approach of the court which is considering the
validity of the judgment of an appellate court
which has reversed the order of acquittal passed
by the trial court, should be to satisfy itself if the
approach of the trial court in dealing with the
evidence was patently illegal or conclusions
arrived at by it are demonstrably unsustainable
and whether the judgment of the appellate court
is free from those infirmities; if so to hold that
the trial court judgment warranted interference.
In such a case, there is obviously no reason why
the appellate court's judgment should be
disturbed. But if on the other hand the court
comes to the conclusion that the judgment of the
trial court does not suffer from any infirmity, it
cannot but be held that the interference by the
appellate court in the order of acquittal was not
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justified; then in such a case the judgment of the
appellate court has to be set aside as of the two
reasonable views, the one in support of the
acquittal alone has to stand. Having regard to
the above discussion, we shall proceed to
examine the judgment of the trial court in this
case.”
31.2. In K. Ramakrishnan Unnithan [K.
Ramakrishnan Unnithan v. State of Kerala, (1999)
3 SCC 309 : 1999 SCC (Cri) 410] , after observing
that though there is some substance in the
grievance of the learned counsel appearing on
behalf of the accused that the High Court has not
adverted to all the reasons given by the trial Judge
for according an order of acquittal, this Court
refused to set aside the order of conviction passed
by the High Court after having found that the
approach of the Sessions Judge in recording the
order of acquittal was not proper and the
conclusion arrived at by the learned Sessions
Judge on several aspects was unsustainable. This
Court further observed that as the Sessions Judge
was not justified in discarding the
relevant/material evidence while acquitting the
accused, the High Court, therefore, was fully
entitled to reappreciate the evidence and record its
own conclusion. This Court scrutinised the
evidence of the eyewitnesses and opined that
reasons adduced by the trial court for discarding
the testimony of the eyewitnesses were not at all
sound. This Court also observed that as the
evaluation of the evidence made by the trial court
was manifestly erroneous and therefore it was the
duty of the High Court to interfere with an order of
acquittal passed by the learned Sessions Judge.
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31.3. In Atley [Atley v. State of U.P., AIR 1955
SC 807] , in para 5, this Court observed and held
as under : (AIR pp. 809-10)
“5. It has been argued by the learned counsel
for the appellant that the judgment of the trial
court being one of acquittal, the High Court
should not have set it aside on mere appreciation
of the evidence led on behalf of the prosecution
unless it came to the conclusion that the
judgment of the trial Judge was perverse. In our
opinion, it is not correct to say that unless the
appellate court in an appeal under Section
417CrPC came to the conclusion that the
judgment of acquittal under appeal was perverse
it could not set aside that order.
It has been laid down by this Court that it is
open to the High Court on an appeal against an
order of acquittal to review the entire evidence
and to come to its own conclusion, of course,
keeping in view the well-established rule that
the presumption of innocence of the accused is
not weakened but strengthened by the
judgment of acquittal passed by the trial court
which had the advantage of observing the
demeanour of witnesses whose evidence have
been recorded in its presence.
It is also well settled that the court of
appeal has as wide powers of appreciation of
evidence in an appeal against an order of
acquittal as in the case of an appeal against
an order of conviction, subject to the riders
that the presumption of innocence with which
the accused person starts in the trial court
continues even up to the appellate stage and
that the appellate court should attach due
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weight to the opinion of the trial court which
recorded the order of acquittal.
If the appellate court reviews the evidence,
keeping those principles in mind, and comes to
a contrary conclusion, the judgment cannot be
said to have been vitiated. (See in this
connection the very cases cited at the Bar,
namely, Surajpal Singh v. State [Surajpal
Singh v. State, 1951 SCC 1207] ; Wilayat
Khan v. State of U.P. [Wilayat Khan v. State of
U.P., 1951 SCC 898] ) In our opinion, there is
no substance in the contention raised on behalf
of the appellant that the High Court was not
justified in reviewing the entire evidence and
coming to its own conclusions.”
31.4. In K. Gopal Reddy [K. Gopal Reddy v. State
of A.P., (1979) 1 SCC 355 : 1979 SCC (Cri) 305]
, this Court has observed that where the trial
court allows itself to be beset with fanciful
doubts, rejects creditworthy evidence for slender
reasons and takes a view of the evidence which is
but barely possible, it is the obvious duty of the
High Court to interfere in the interest of justice,
lest the administration of justice be brought to
ridicule.’”
78. Further, the Supreme Court in the decision in Bhupatbhai Bachubhai
Chavda v. State of Gujarat, 2024 SCC OnLine SC 523 observed as under:
“6. It is true that while deciding an appeal against
acquittal, the Appellate Court has to reappreciate the
evidence. After re-appreciating the evidence, the first
question that needs to be answered by the Appellate Court
is whether the view taken by the Trial Court was a
plausible view that could have been taken based on
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evidence on record. Perusal of the impugned judgment of
the High Court shows that this question has not been
adverted to. Appellate Court can interfere with the order
of acquittal only if it is satisfied after reappreciating the
evidence that the only possible conclusion was that the
guilt of the accused had been established beyond a
reasonable doubt. The Appellate Court cannot overturn
order of acquittal only on the ground that another view is
possible. In other words, the judgment of acquittal must be
found to be perverse. Unless the Appellate Court records
such a finding, no interference can be made with the order
of acquittal. The High Court has ignored the well-settled
principle that an order of acquittal further strengthens the
presumption of innocence of the accused. After having
perused the judgment, we find that the High Court has not
addressed itself on the main question.”
79. The Supreme Court in Jafarudheen v. State of Kerala, (2022) 8 SCC
440 also observed as under:
“ Scope of appeal filed against the acquittal
25. While dealing with an appeal against acquittal by
invoking Section 378CrPC, the appellate court has to
consider whether the trial court's view can be termed as
a possible one, particularly when evidence on record
has been analysed. The reason is that an order of
acquittal adds up to the presumption of innocence in
favour of the accused. Thus, the appellate court has to
be relatively slow in reversing the order of the trial
court rendering acquittal. Therefore, the presumption in
favour of the accused does not get weakened but only
strengthened. Such a double presumption that enures in
favour of the accused has to be disturbed only by
thorough scrutiny on the accepted legal parameters.”
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80. In the decision in State of Goa v. Sanjay Thakran (Supra) which is
also relied upon the ld. Counsel for the Respondents, the Supreme Court
observed as under:
“16. From the aforesaid decisions, it is apparent that
while exercising the powers in appeal against the order
of acquittal the court of appeal would not ordinarily
interfere with the order of acquittal unless the approach
of the lower court is vitiated by some manifest illegality
and the conclusion arrived at would not be arrived at by
any reasonable person and, therefore, the decision is to
be characterised as perverse. Merely because two views
are possible, the court of appeal would not take the
view which would upset the judgment delivered by the
court below. However, the appellate court has a power
to review the evidence if it is of the view that the view
arrived at by the court below is perverse and the court
has committed a manifest error of law and ignored the
material evidence on record. A duty is cast upon the
appellate court, in such circumstances, to reappreciate
the evidence to arrive at a just decision on the basis of
material placed on record to find out whether any of
the accused is connected with commission of the crime
he is charged with .”
81. In the present case, this Court does not find any infirmity in the
impugned judgment. In fact, the case of the prosecution lacks credibility. The
Closure Report of the CBI, especially analysis of the CDR details of the
Respondents would show that there is independent evidence showing
location of the Respondents and how their mobile phones got switched off
th nd
on 13 December, 2005 and 22 December, 2005 respectively. If there was
any evidence to the contrary, the Special Cell of the Delhi Police ought to
have produced the same on record to show usage of the mobile phones by
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the Respondents post the said date. Lalit Kumar and Guddu Kumar Bhagat,
independent persons at the Mukarba Chowk, who were interviewed by the
CBI were not examined in the trial. Sheikh Pervej and Faiyaz Ahmed Radar
who were alleged to have given the weapons to the accused persons were
neither interrogated nor produced, though belated attempts were made to
serve them. Thus, the obvious steps that ought to have been taken to establish
the credibility of the seizure from the accused persons, were not been taken.
82. In the absence of any unimpeachable evidence, this Court is of the
view that impugned judgement does not warrant any interference.
83. The appeal is, accordingly, dismissed. Pending applications, if any,
are also disposed of.
84. Personal/Bail bond and surety of the Respondents, if any, are
discharged.
PRATHIBA M. SINGH
JUDGE
MADHU JAIN
JUDGE
MAY 29, 2026 / dk/ck
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