ANWAR ALI AND ANOTHERversusTHE STATE OF HIMACHAL PRADESH

878                      [2020]REPORTS
               SUPREME COURT    9 S.C.R. 878                [2020] 9 S.C.R.


A                       ANWAR ALI AND ANOTHER
                                        v.
                   THE STATE OF HIMACHAL PRADESH
                       (Criminal Appeal No. 1121 of 2016)
B                            SEPTEMBER 25, 2020
            [ASHOK BHUSHAN, R. SUBHASH REDDY AND
                       M. R. SHAH, JJ.]
            Penal Code, 1860:
C           ss. 302/34, 392, 201 and 420 – Prosecution under –
      Circumstantial evidence – Acquittal by trial court in view of
      contradictions in prosecution case – High Court reversed the
      acquittal order holding that the contradictions were minor in nature
      – Appeal to Supreme Court – Held: In the case of circumstantial
      evidence, the circumstances, taken cumulatively, form a chain so
D
      complete that there is no escape from the conclusion that the crime
      was committed by the accused and none else – The contradictions,
      which came to be considered by trial court, cannot be said to be
      minor – Trial court was justified in recording the acquittal observing
      that prosecution failed to complete entire chain of events – High
E     Court was not justified in reversing acquittal order.
            Code of Criminal Procedure, 1973:
            s. 378 – Appeal against acquittal – Scope and ambit of –
      Held: Court can interfere with order of acquittal only in compelling
      circumstances, where the order under appeal is perverse – In the
F     present case, the acquittal order under appeal cannot be said to be
      perverse as the same was based on appreciation of entire evidence
      on record.
            Investigation:

G           Defective investigation – Non-compliance of provisions u/ss.
      166(3) & (4) and 100(4) Cr. P.C. – Held: Non-compliance of the
      provisions may not be a ground to acquit the accused – But, where
      recovery is seriously doubted, non-compliance would play an
      important role – Code of Criminal Procedure, 1973 – ss. 100(4)
      and 166(3) & (4).
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                                       878
 ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                   879


      Evidence:                                                       A
       Circumstantial evidence – Motive – Absence – Effect of –
Held: Proving of motive does supply a link in the chain of
circumstantial evidence – But absence of motive cannot be a ground
to reject prosecution case – Absence of motive can be a factor that
weighs in favour of the accused.                                      B
      Allowing the appeal, the Court
       HELD: 1.1 In exceptional cases where there are
compelling circumstances, and the judgment under appeal is found
to be perverse, the appellate court can interfere with the order
of acquittal. The appellate court should bear in mind the             C
presumption of innocence of the accused and further that the
trial court’s acquittal bolsters the presumption of his innocence.
Interference in a routine manner where the other view is possible
should be avoided, unless there are good reasons for interference.
[Para 5.2.1][894-E-F]                                                 D
      Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9
      SCR 1039; Vijay Mohan Singh v. State of Karnataka
      (2019) 5 SCC 436 : [2019] 6 SCR 994 – relied on.
      1.2 If a decision is arrived at, on the basis of no evidence
or thoroughly unreliable evidence that no reasonable person           E
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. [Para 5.2.3]
[895-C-D]                                                             F
      Kuldeep Singh v. Commissioner of Police (1999) 2 SCC
      10 : [1998] 3 Suppl. SCR 594 – relied on.
      1.3 In the present case, the findings recorded by the trial
Court, based on appreciation of the entire evidence on record,
cannot be said to be either perverse or contrary to the evidence      G
on record and/or it cannot be said that the trial Court did not
consider any material evidence on record. [Para 10][905-B]
      2.1 In case of a circumstantial evidence, the circumstances,
taken cumulatively, should form a chain so complete that there is
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880           SUPREME COURT REPORTS                     [2020] 9 S.C.R.


A     no escape from the conclusion that within all human probability,
      the crime was committed by the accused and none else and the
      circumstantial evidence in order to sustain conviction must be
      complete and incapable of explanation of any other hypothesis
      than that of the guilt of the accused and such evidence should not
      only be consistent with the guilt of the accused but should be
B
      inconsistent with his innocence. [Para 5.4][899-A-B]
           Babu v. State of Kerala (2010) 9 SCC 189 : [2010] 9
           SCR 1039; G. Parshwanath v. State of Karnataka
           (2010) 8 SCC 593 : [2010] 10 SCR 377 – relied on.
C            2.2 The contradictions which came to be considered by the
      trial Court cannot be said to be minor contradictions. The High
      Court without giving any cogent reasons has interfered with the
      findings of fact recorded by the trial Court solely by observing
      that those contradictions were minor contradictions.
      [Para 6.1][902-D-F]
D
            2.3 In the present case, according to the prosecution and
      PW18-IO, on the basis of disclosure statements made by the
      accused on 8.9.2010, the knife and rope were recovered on
      9.9.2010. However, PW4 and PW5 have categorically stated in
      their deposition that the police brought the sniffer dogs on
E     2.9.2010 and the sniffer dogs recovered rope, knife etc. on
      2.9.2010. So, according to even PW4 and PW5, the rope and knife
      were recovered on 2.9.2010 with the help of sniffer dogs.
      However, neither in the FIR there was a mention of recovery of
      knife and rope on 2.9.2010 with the help of sniffer dogs nor the
F     IO in his examination-in-chief has stated so. The accused were
      arrested on 8.9.2010 and prior thereto on 2.9.2010 the
      investigating officer visited the spot from where the knife and
      rope was recovered on 2.9.2010. In cross-examination, the IO
      admitted that he visited the spot from where the knife was
      recovered with sniffer dogs on 2.9.2010. He has also admitted in
G     the cross-examination that this fact has not been mentioned in
      the FIR or in the statement of any witness. Thus, the prosecution
      and the IO suppressed the material facts. Even in the cross-
      examination, the IO has stated that the sniffer dog had done
      nothing on the spot. In the cross-examination, he has also
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 ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                     881


specifically stated that “it is incorrect to suggest that the sniffer   A
dog had traced the strings Ex. P52, knife Ex. P59 and vest Ex.
P54. However, PW4 and PW5 in their deposition have
categorically stated that the knife and rope were recovered on
2.9.2010. The aforesaid cannot be said to be minor contradictions.
Therefore, the trial Court was justified in not believing the
                                                                        B
disclosure statements of the accused and the recovery of the
knife, rope etc. on 9.9.2010 as alleged by the prosecution. From
evidence, it emerges that the knife, rope and vest were recovered
on 2.9.2010 i.e., much prior to 8.9.2010 when the accused were
arrested. [Para 6.1][902-F-H; 903-A-C]
      2.4 Even the recovery of jeep from Chandigarh and recovery        C
of photographs and the recovery of mobile phone belonging to
PW7 from the jeep also create serious doubts. The Investigating
Officer did not follow the procedure as required to be followed
under Section 166 (3 & 4), Cr.P.C. Even he did not comply with
the provisions of Section 100 (4) Cr.P.C. Non-following of the          D
aforesaid provisions alone may not be a ground to acquit the
accused. However, considering the overall surrounding
circumstances and in a case where recovery is seriously doubted,
non-compliance of the aforesaid, play an important role.
[Para 7][903-D-F]
                                                                        E
      Ronny v. State of Maharashtra (1998) 3 SCC 625 :
      [1998] 2 SCR 162; C. Muniappan v. State of Tamil
      Nadu (2010) 9 SCC 567 : [2010] 10 SCR 262; State of
      Punjab v. Balbir Singh (1994) 3 SCC 299 : [1994] 2
      SCR 208; Sudha Renukaiah v. State of Andhra Pradesh
      (2017) 13 SCC 81 – referred to.                                   F

      2.5 As regards the recovery of the mobile phone, PW7 has
stated that his mobile was stolen or cheated, he never filed any
complaint earlier. Even the IO has not tried to have the call details
of the mobile. He has not tried to verify from the call details, the
conversation to or from the mobile. Even the disclosure statement       G
of the accused with respect to crates being sold to PW6 is found
to be suspicious and doubtful. Cogent reasons have been given
by the trial Court for the same. [Para 8][903-G-H; 904-A]

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882            SUPREME COURT REPORTS                      [2020] 9 S.C.R.


A            2.6 If motive is proved, that would supply a link in the chain
      of circumstantial evidence but the absence thereof cannot be a
      ground to reject the prosecution case. However, at the same time,
      absence of motive in a case depending on circumstantial evidence
      is a factor that weighs in favour of the accused. [Para 9][904-C]
B           Suresh Chandra Bahri v. State of Bihar (1995) 1 Suppl.
            SCC 80 : [1994] 1 Suppl. SCR 483; Babu v. State of
            Kerala (2010) 9 SCC 189 : [2010] 9 SCR 1039
            – relied on.
            2.7 Trial Court was justified in recording the acquittal by
C     observing that prosecution has failed to complete the entire chain
      of events. Therefore, in the facts and circumstances of the case,
      the High Court is not justified in reversing the order of acquittal.
      [Para 10][905-C]
            Bannareddy v. State of Karnataka (2018) 5 SCC 790 :
D           [2018] 4 SCR 623; State of Rajasthan v. Mukesh Kumar
            alias Mahesh Dhaulpuria (2019) 7 SCC 678; State of
            Rajasthan v. Madan alias Madaniya (2019) 13 SCC
            653 – referred to.
                             Case Law Reference
E     [2018] 4 SCR 623               referred to             Para 3.1
      (2019) 7 SCC 678               referred to             Para 3.1
      (2019) 13 SCC 653              referred to             Para 3.1
      [1998] 2 SCR 162               referred to             Para 4.4
F     [2010] 10 SCR 262              referred to             Para 4.4
      [1994] 2 SCR 208               referred to             Para 4.4.
      (2017) 13 SCC 81               referred to             Para 4.4
      [2010] 9 SCR 1039              relied on               Para 5.2.1
G
      [1998] 3 Suppl. SCR 594        relied on               Para 5.2.3
      [2019] 6 SCR 994               relied on               Para 5.3
      [2010] 9 SCR 1039              relied on               Para 5.4

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  ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                        883


[2010] 10 SCR 377                relied on                 Para 5.5         A
[1994] 1 Suppl. SCR 483          relied on                 Para 9
[2010] 9 SCR 1039                relied on                 Para 9
      CRIMINAL APPELLATE JURISDICTION: Criminal Appeal No.
1121 of 2016.                                                               B
      From the Judgment and Order dated 20.09.2016 of the High Court
of Himachal Pradesh at Shimla in Crl. Appeal No. 464 of 2012.
      Manan Kumar Mishra, Anjani Kumar Mishra, Hardeep Kaur
Mishra, Ms. Anjul Dwivedi, Sunil Kumar Agarwal, Shiv Ram Pandey,
Abhimanyu Jhamba, Ms. R.A. Thonpinao Thangal, Ashish Jhamb,                 C
Ms. Hemlata Ranga, Ms. Hatnei Mawi, Abhinav Mukerji, Advs. for the
appearing parties.
      The Judgment of the Court was delivered by
      M. R. SHAH, J.
                                                                            D
       1. Feeling aggrieved and dissatisfied with the impugned judgment
and order dated 20.09.2016 passed by the High Court of Himachal
Pradesh in Criminal Appeal No. 464 of 2012, by which the High Court
has allowed the said appeal preferred by the respondent – The State of
Himachal Pradesh and has reversed the judgment and order of acquittal
passed by the learned trial Court and consequently has convicted the        E
appellants – original accused for the offences punishable under Sections
302 read with 34, 392, 201 and 420, IPC and has sentenced the appellants
herein – original accused to undergo life imprisonment for the offences
punishable under Section 302 read with 34, IPC, the appellants – original
accused have preferred the present appeal.                                  F
       2. That the appellants herein – original accused were charged for
the offences punishable under Sections 302 read with 34, 392, 420 and
201, IPC for having committed the murder of one Deepak. That the
dead body of the deceased was found on 2.9.2010 near bypass Bihali
Road, Chandigarh. That the dead body was seen by one Jashwinder             G
Singh, PW4, who informed the police station, Bhunter. On receiving
such information, the police came on the spot; recorded the statement of
PW4; prepared Rukka and sent the same through Constable Pushparaj,
PW2 to police station, Bhunter. FIR was registered by Head Constable

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884            SUPREME COURT REPORTS                          [2020] 9 S.C.R.


A     Tara Chand. That the dead body was identified by the father of the
      deceased. The investigating officer, PW18 conducted the investigation.
      The dead body was sent for post mortem.
             SHO/SI Narayan received a secret information on 5.9.2010 that
      one vehicle (jeep) was lying at Chandigarh in abandoned condition. IO
B     along with the other police officers went to Chandigarh and recovered
      the abandoned vehicle from Sector 45C, Chandigarh. On checking the
      jeep, one envelope was found to have been recovered containing mobile
      phone, three photographs and the documents of the vehicle were lying
      on the dash board of the jeep. IO took into possession the vehicle and
      the documents vide memo. IO dialled from recovered mobile to his own
C     mobile and the number was detected as 9805523262. From the recovered
      photographs, the accused were searched at place Pandoh Bajaura Aut.
      Both the accused were arrested on 8.9.2010. During the investigation,
      the IO recovered the crates from Punjab. IO also recovered one knife
      and the rope on 09.09.2010, alleged to have been used in commission of
D     the offence. After conclusion of the investigation, IO filed chargesheet
      against the accused persons for the aforesaid offences.
             2.1 To prove the case against the accused, the prosecution
      examined in all 9 witnesses, out of 19 witnesses shown in the chargesheet,
      details of which are given below:
E
             Sl.No.     Name
             01.        Biri Singh (attesting witness on recovery of cloths)
                        (Ex. P.W. 2/C & Ex. P.W.2/D)
             02         Dinesh Singh (attesting witness on recovery of Jeep,
                        photographs, Mobile) Ex. P.W. 1/A
F            03.        Lucky (witness on recovery of clothes)
             04         Subhash (Father of deceased)
             05         Rampal, witness of disclosure statement as per PW3
             06         Niranjan Singh
                        He was attesting witness on the seizure of crates
                        from Ropar (Ext. P.W. 1/B)
G            07         Jyoti Kumar, Witness on recovery of crates from
                        Ropar
             08         Rajendra Kohli + Sushil Kumar
             09         H.C. Pune Ram


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  ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                         885
                    [M. R. SHAH, J.]

      The prosecution also brought on record the documentary evidence        A
of the aforesaid witnesses. After conclusion of the recording of the
evidence, statement of the accused persons under Section 313, Cr.P.C.
were recorded.
       Before the trial Court, the prosecution mainly relied upon the
disclosure statements, recovery of vehicle (jeep), recovery of knife and     B
rope from the spot, recovery of mobile and photographs (from the jeep).
Before the trial Court, the case was based on circumstantial evidence
as there was no direct evidence. That on appreciation of evidence on
record, both oral as well as documentary, the learned trial Court by a
detailed reasoning did not believe the disclosure statements, recovery of
knife and rope alleged to have been used for commission of the offence,      C
recovery of mobile and the recovery of photographs from the jeep. That
on appreciation of evidence, the learned trial Court found that the
prosecution withheld the material information with respect to the sniffer
dogs and on appreciation of evidence found that the recoveries were
made earlier and the panchnama of the same were prepared subsequently        D
on which PW5 and PW6 put their signatures. Having found that the
prosecution has failed to establish and prove the complete chain of events
and that it was a case of circumstantial evidence, by a detailed judgment
and order, the learned trial Court acquitted both the accused for the
offences for which they were tried.
                                                                             E
       2.2 On appeal by the State, by the impugned judgment and order,
the High Court has reversed the judgment and order of acquittal passed
by the learned trial Court and consequently has convicted the accused
for the offences punishable under Sections, 302 read with 34, 392, 420
and 201, IPC. By the impugned judgment and order, the High Court has
sentenced the appellants – original accused to undergo life imprisonment     F
for the offence under Section 302 read with 34, IPC. The High Court
has also sentenced the appellants to undergo rigorous imprisonment for
a period of seven years and to pay a fine of Rs.25,000/- each for the
offence under Section 392, IPC, and in default of payment of fine, further
rigorous imprisonment for a period of three months. The High Court has       G
also sentenced the appellants to undergo rigorous imprisonment for a
period of seven years and to pay a fine of Rs.10,000/- each for the
offence under Section 420, IPC, and in default of payment of fine, further
rigorous imprisonment for a period of three months. The High Court has
also sentenced the appellants to undergo rigorous imprisonment for a
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886              SUPREME COURT REPORTS                          [2020] 9 S.C.R.


A     period of two years and to pay a fine of Rs.5,000/- each for the offence
      under Section 201, IPC, and in default of payment of fine, further rigorous
      imprisonment for a period of three months. However, all the sentences
      were directed to run concurrently.
            2.3 Feeling aggrieved and dissatisfied with the impugned judgment
B     and order passed by the High Court in reversing the judgment and order
      of acquittal and convicting the appellants for the aforesaid offences, the
      appellants-original accused have preferred the present appeal.
            3. Learned counsel appearing on behalf of the appellants-accused
      has made the following submissions:
C           i)   that the High Court has exceeded in its jurisdiction in reversing
                 the well-reasoned judgment and order of acquittal passed by
                 the learned trial Court and consequently convicting the
                 accused;
            ii) that the High Court has reversed the judgment of the acquittal
D               on suspicion, surmises and conjectures;
            iii) that the learned trial Court, as such, committed no error in
                 acquitting the accused;
            iv) that the learned trial Court on appreciation of evidence
                disbelieved the recovery of knife and rope at the instance of
E
                the accused and it was held that a very important link of the
                chain was missing;
            v) that the learned trial Court gave a specific finding on
               appreciation of evidence on doubtful disclosure statements;
F           vi) that the High Court has failed to appreciate and consider that
                the knife, which is alleged to have been recovered on the
                disclosure statements of the accused persons, had already
                been recovered on 2.9.2010 with the help of sniffer dogs,
                which was established from the evidence of PW4 and PW5;
G           vii) that the High Court ought to have appreciated that the recovery
                 of knife and rope alleged to have been recovered on the
                 disclosure statements of the accused persons on 09.09.2010
                 was concocted one and to fill up the gaps in the prosecution
                 case;

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ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                        887
                  [M. R. SHAH, J.]

   viii) that even the recovery of photographs, mobile phone of PW7       A
         and the jeep from Chandigarh on 6.9.2010 is itself very
         doubtful, which came to be considered in detail by the learned
         trial Court;
   ix) that even the conduct of Bhuntar police and the IO in not
       informing or taking help of the jurisdictional police and          B
       Chandigarh police while conducting investigation in those
       areas, as required under Section 166(3) Cr.P.C. and other
       lapses has made the entire prosecution case full of doubts
       and suspicious;
   x) that even the IO has not tried to examine any independent           C
      witness of Chandigarh, though several people were there at
      the time of recovery;
   xi) that even the recovery of mobile of PW7 is very doubtful.
       The IO never tried to find out the call details of recovered
       mobile. Even he did not look into call-log of the mobile himself   D
       in order to find out the contact details of the real culprits.
       Even the IO did not enquire that after robbing the mobile of
       PW7, who were the persons contacted by the miscreants;
       how was the mobile used by the accused; whether the mobile
       was taken to Ropar by the accused; who were the persons
       taking mobile to Chandigarh and kept in the jeep with the          E
       photographs of the appellants? All these questions could have
       been easily solved from the call-log/call details of the mobile
       if it was really stolen and recovered from the jeep;
   xii) that even the prosecution has not examined the best material
        witnesses like Biri Singh, Dinesh Singh, Lucky, Subash (the       F
        father of the deceased), Ram Pal, Niranjan Singh and Jyoti
        Kumar. It is submitted that non-examination of material
        witnesses on recovery and seizure memos has proved fatal
        for the prosecution and has created serious doubts on the
        prosecution case. It is submitted that there is absolutely no     G
        reason as to why these material witnesses were not examined
        by the prosecution, and most of the police witnesses only were
        produced in the court, It is submitted that non-examination of
        material witnesses is fatal for the prosecution;

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888             SUPREME COURT REPORTS                              [2020] 9 S.C.R.


A            xiii) that it is an admitted position that it is a case of circumstantial
                   evidence. Therefore, before convicting the accused, the
                   prosecution has to prove the complete chain of events which
                   will lead to the only conclusion that it is the accused who
                   alone has committed the offence. It is submitted that in the
                   present case the prosecution as such has failed to complete
B
                   the chain of events; and
             xiv) that there are material contradictions and even the recovery
                  of jeep, knife and rope, photographs from the jeep, as observed
                  and held by the learned trial Court, is doubtful and creates
                  serious doubts and therefore the learned trial Court rightly
C                 acquitted the accused, which ought not to have interfered
                  with by the High Court.
             3.1 Making the above submissions and taking us to the deposition
      of PW4, PW5 and PW18 and relying upon the decisions of this Court in
      the cases of Babu v. State of Kerala, (2010) 9 SCC 189; Bannareddy
D     v. State of Karnataka (2018) 5 SCC 790; State of Rajasthan v.
      Mukesh Kumar alias Mahesh Dhaulpuria (2019) 7 SCC 678; and
      State of Rajasthan v. Madan alias Madaniya, (2019) 13 SCC 653,
      it is prayed to allow the present appeal and set aside the impugned
      judgment and order passed by the High Court and restore the well-
E     reasoned judgment and order of acquittal passed by the learned trial
      Court.
            4. The present appeal is vehemently opposed by the learned counsel
      appearing on behalf of the respondent – State of Himachal Pradesh.
              4.1 It is submitted that in the present case the High Court has
F     after re-appreciation of entire evidence on record, found the accused
      guilty for the unnatural death of Deepak Kumar deceased. It is submitted
      that as such the re-appreciation of the entire evidence by the first appellate
      court is permissible;
             4.2 It is submitted that the High Court, on re-appraisal of the
G     entire evidence on record, has considered the following circumstances
      pointing to the guilt of the accused:
             a) recovery of jeep, mobile phone and photographs from
                Chandigarh
             b) recovery of weapon of offence on the disclosure statement
H               of appellant no.1 – Anwar Ali
  ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                              889
                    [M. R. SHAH, J.]

       c) recovery of crates on the disclosure statement of appellant             A
          no.1 – Anwar Ali
       d) recovery of clothes of accused
       e) medical evidence
       f) no defence evidence led                                                 B
       4.3 It is submitted that the High Court has given cogent reasons
while considering the afore-stated circumstances against the accused.
It is submitted that the High Court has convicted the accused on re-
appreciation of the entire evidence on record, more particularly the
deposition of PW1, PW3, PW4, PW5, PW11 and PW18.                                  C
       4.4 Now so far as the submission on behalf of the accused on
non-examination of independent witnesses at the time of recovery and
non-compliance of the provisions of Section 100(4) Cr.P.C. and other
related provisions is concerned, it is submitted by the learned counsel
appearing on behalf of the respondent-State that the persons who were             D
gathered at the time of recovery were mere spectators and none had
come forward to act as a witness in the matter.
      It is submitted that even otherwise as held by this Court in the
case of Ronny v. State of Maharashtra, (1998) 3 SCC 625 that even if
the witness has been brought by the investigating agency along with
                                                                                  E
them, they cannot be disbelieved only on that ground.
       4.5 In the alternative, it is submitted by the learned counsel
appearing on behalf of the respondent-State that non-compliance of the
directory provisions contained in Section 100 Cr.P.C. can at the most be
treated as defective investigation but that cannot come in the way of
                                                                                  F
dispensation of justice. Heavy reliance is placed upon the decision of
this Court in the case of C. Muniappan v. State of Tamil Nadu, (2010)
9 SCC 567 (para 55).
       It is submitted that as held by this Court in the case of State of
Punjab v. Balbir Singh, (1994) 3 SCC 299 (para 6), a defective
investigation if any does not vitiate the trial. It is submitted that as held     G
by this Court in the case of Sudha Renukaiah v. State of Andhra
Pradesh, (2017) 13 SCC 81, in which the decision in the case of
Muniappan (supra) was relied upon, that even if the IO has committed
any error and has been negligent in carrying out any investigation or in
the investigation there is some omission and defect, it is the legal obligation   H
890             SUPREME COURT REPORTS                             [2020] 9 S.C.R.


A     on the part of the court to examine the prosecution evidence de hors
      such lapses.
             4.5 It is further submitted that in the present case the recovery of
      weapon of offence; recovery of jeep; recovery of photographs and the
      stolen mobile phone of PW7; recovery of crates have been established
B     and proved by the prosecution beyond doubt by examining the relevant
      witnesses, which as such, were not believed by the learned trial Court
      for minor contradictions. It is submitted that therefore the order of acquittal
      passed by the learned trial Court warranted interference by the High
      Court.
C             4.6 Now so far as the submission on behalf of the accused that in
      the present case the High Court has committed a grave error in interfering
      with the order of acquittal passed by the learned trial Court is concerned,
      it is submitted that in the present case of circumstantial evidence, the
      factum probandum or the primary fact stands established and having
      regard to the common cause and natural events and to human conduct
D     and their relations, the complete chain of circumstances indicating the
      guilt of the accused is established. Reliance is placed upon the decision
      of this Court in the case of G. Parshwanath v. State of Karnataka,
      (2010) 8 SCC 593 (paragraphs 22 to 24).
             Heavy reliance is also placed on the recent decision of this Court
E     in the case of Vijay Mohan Singh v. State of Karnataka, (2019) 5
      SCC 436, paragraphs 30, 31. 31.1, 31.2, 31.3, 31.4 and 32 of the said
      decision. It is submitted that in the aforesaid decision, after considering
      the entire law on interference by the High Court with an order of acquittal,
      it is observed and held that once the appeal is entertained against the
F     order of acquittal, the High Court would be entitled to re-appreciate the
      entire evidence independently and come to its own conclusion. However,
      ordinarily, the High Court would give due importance to the opinion of
      the Sessions Judge if the same was arrived at after proper appreciation
      of the evidence. It is submitted that it is further observed that where the
      Sessions Judge has absolutely made a wrong assumption of a very material
G     and clinching aspect in the peculiar circumstances of the case and if the
      High Court is satisfied that the order of acquittal passed by the learned
      trial Court is perverse and suffers from infirmities, it is always open for
      the High Court to interfere with the order of acquittal passed by the
      learned trial Court.
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  ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                           891
                    [M. R. SHAH, J.]

      4.8 Making the above submissions and relying upon the aforesaid          A
decisions of this Court, it is prayed to dismiss the present appeal.
       5. We have heard the learned counsel for the respective parties
at length. We have gone through in detail the judgment and order of
acquittal passed by the learned trial Court as well as the impugned
judgment and order passed by the High Court interfering with the order         B
of acquittal passed by the learned trial Court and thereby convicting the
accused. We have also gone through the relevant evidences, both oral
as well as documentary.
       5.1 At the outset, it is required to be noted that this is a case of
reversal of acquittal by the High Court in a case of circumstantial            C
evidence. Therefore, the first and foremost thing which is required to be
considered is, whether in the facts and circumstances of the case, the
High Court is justified in interfering with the order of acquittal passed by
the learned trial Court?
       5.2 Before considering the appeal on merits, the law on the appeal      D
against acquittal and the scope and ambit of Section 378 Cr.P.C. and the
interference by the High Court in an appeal against acquittal is required
to be considered.
       5.2.1 In the case of Babu (supra), this Court had reiterated the
principles to be followed in an appeal against acquittal under Section 378     E
Cr.P.C. In paragraphs 12 to 19, it is observed and held as under:
      12. This Court time and again has laid down the guidelines for the
      High Court to interfere with the judgment and order of acquittal
      passed by the trial court. The appellate court should not ordinarily
      set aside a judgment of acquittal in a case where two views are          F
      possible, though the view of the appellate court may be the more
      probable one. While dealing with a judgment of acquittal, the
      appellate court has to consider the entire evidence on record, so
      as to arrive at a finding as to whether the views of the trial court
      were perverse or otherwise unsustainable. The appellate court is
      entitled to consider whether in arriving at a finding of fact, the       G
      trial court had failed to take into consideration admissible evidence
      and/or had taken into consideration the evidence brought on record
      contrary to law. Similarly, wrong placing of burden of proof may
      also be a subject-matter of scrutiny by the appellate court. (Vide
      Balak Ram v. State of U.P (1975) 3 SCC 219, Shambhoo Missir
                                                                               H
892      SUPREME COURT REPORTS                            [2020] 9 S.C.R.


A     v. State of Bihar (1990) 4 SCC 17,Shailendra Pratap v. State
      of U.P (2003) 1 SCC 761, Narendra Singh v. State of M.P
      (2004) 10 SCC 699, Budh Singh v. State of U.P (2006) 9 SCC
      731, State of U.P. v. Ram Veer Singh (2007) 13 SCC 102, S.
      Rama Krishna v. S. Rami Reddy (2008) 5 SCC 535, Arulvelu
      v. State (2009) 10 SCC 206, Perla Somasekhara Reddy v. State
B
      of A.P (2009) 16 SCC 98 and Ram Singh v. State of H.P (2010)
      2 SCC 445)
      13. In Sheo Swarup v. King Emperor AIR 1934 PC 227, the
      Privy Council observed as under: (IA p. 404)
C     “… the High Court should and will always give proper weight and
      consideration to such matters as (1) the views of the trial Judge
      as to the credibility of the witnesses; (2) the presumption of
      innocence in favour of the accused, a presumption certainly not
      weakened by the fact that he has been acquitted at his trial; (3)
      the right of the accused to the benefit of any doubt; and (4) the
D     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. The aforesaid principle of law has consistently been followed
      by this Court. (See Tulsiram Kanu v. State AIR 1954 SC 1,
      Balbir Singh v. State of Punjab AIR 1957 SC 216, M.G.
E     Agarwal v. State of Maharashtra AIR 1963 SC 200, Khedu
      Mohton v. State of Bihar (1970) 2 SCC 450, Sambasivan v.
      State of Kerala (1998) 5 SCC 412, Bhagwan Singh v. State of
      M.P(2002) 4 SCC 85 and State of Goa v. Sanjay Thakran
      (2007) 3 SCC 755)
F     15. In Chandrappa v. State of Karnataka (2007) 4 SCC 415,
      this Court reiterated the legal position as under: (SCC p. 432, para
      42)
      “(1) An appellate court has full power to review, reappreciate
      and reconsider the evidence upon which the order of acquittal is
G     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.
H
ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                          893
                  [M. R. SHAH, J.]

   (3) Various expressions, such as, ‘substantial and compelling            A
   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
                                                                            B
   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          C
   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.                          D
   (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.”
   16. In Ghurey Lal v. State of U.P (2008) 10 SCC 450, this
   Court reiterated the said view, observing that the appellate court       E
   in dealing with the cases in which the trial courts have acquitted
   the accused, should bear in mind that the trial court’s acquittal
   bolsters the presumption that he is innocent. The appellate court
   must give due weight and consideration to the decision of the trial
   court as the trial court had the distinct advantage of watching the      F
   demeanour of the witnesses, and was in a better position to
   evaluate the credibility of the witnesses.
   17. In State of Rajasthan v. Naresh (2009) 9 SCC 368, the
   Court again examined the earlier judgments of this Court and laid
   down that: (SCC p. 374, para 20)                                         G
   “20. … an order of acquittal should not be lightly interfered with
   even if the court believes that there is some evidence pointing out
   the finger towards the accused.”
   18. In State of U.P. v. Banne (2009) 4 SCC 271, this Court
   gave certain illustrative circumstances in which the Court would         H
894            SUPREME COURT REPORTS                            [2020] 9 S.C.R.


A           be justified in interfering with a judgment of acquittal by the High
            Court. The circumstances include: (SCC p. 286, para 28)
            “(i) The High Court’s decision is based on totally erroneous view
            of law by ignoring the settled legal position;
            (ii) The High Court’s conclusions are contrary to evidence and
B           documents on record;
            (iii) The entire approach of the High Court in dealing with the
            evidence was patently illegal leading to grave miscarriage of justice;
            (iv) The High Court’s judgment is manifestly unjust and
C           unreasonable based on erroneous law and facts on the record of
            the case;
            (v) This Court must always give proper weight and consideration
            to the findings of the High Court;
            (vi) This Court would be extremely reluctant in interfering with a
D           case when both the Sessions Court and the High Court have
            recorded an order of acquittal.”
            A similar view has been reiterated by this Court in Dhanapal v.
            State (2009) 10 SCC 401.
            19. Thus, the law on the issue can be summarised to the effect
E           that in exceptional cases where there are compelling
            circumstances, and the judgment under appeal is found to be
            perverse, the appellate court can interfere with the order of
            acquittal. The appellate court should bear in mind the presumption
            of innocence of the accused and further that the trial court’s
F           acquittal bolsters the presumption of his innocence. Interference
            in a routine manner where the other view is possible should be
            avoided, unless there are good reasons for interference.”
                                                            (emphasis supplied)
            5.2.2 When the findings of fact recorded by a court can be held to
G     be perverse has been dealt with and considered in paragraph 20 of the
      aforesaid decision, which reads as under:
            “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
H
  ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                         895
                    [M. R. SHAH, J.]

      irrelevant/inadmissible material. The finding may also be said to      A
      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 (1984)
      4 SCC 635, Excise and Taxation Officer-cum-Assessing
      Authority v. Gopi Nath & Sons 1992 Supp (2) SCC 312, Triveni
                                                                             B
      Rubber & Plastics v. CCE 1994 Supp. (3) SCC 665, Gaya
      Din v. Hanuman Prasad (2001) 1 SCC 501, Aruvelu v. State
      (2009) 10 SCC 206 and Gamini Bala Koteswara Rao v. State
      of A.P (2009) 10 SCC 636).”
                                                     (emphasis supplied)
                                                                             C
        5.2.3 It is further observed, after following the decision of this
Court in the case of Kuldeep Singh v. Commissioner of Police (1999)
2 SCC 10, 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          D
would not be treated as perverse and the findings would not be interfered
with.
      5.3 In the recent decision of Vijay Mohan Singh (supra), this
Court again had an occasion to consider the scope of Section 378 Cr.P.C.
and the interference by the High Court in an appeal against acquittal.       E
This Court considered catena of decisions of this Court right from 1952
onwards. In paragraph 31, it is observed and held as under:
      “31. An identical question came to be considered before this Court
      in Umedbhai Jadavbhai (1978) 1 SCC 228. In the case before
      this Court, the High Court interfered with the order of acquittal      F
      passed by the learned trial court on re-appreciation 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 acquitting the accused. Confirming the judgment
      of the High Court, this Court observed and held in para 10 as          G
      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
                                                                             H
896      SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A        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.”
B     31.1. In Sambasivan v. State of Kerala (1998) 5 SCC 412, the
      High Court reversed the order of acquittal passed by the learned
      trial court and held the accused guilty on re-appreciation 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
C     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
D     declined to interfere with the order of conviction passed by the
      High Court. While confirming the order of conviction passed by
      the High Court, this Court observed in para 8 as under: (SCC p.
      416)
         “8. We have perused the judgment under appeal to ascertain
E        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 Ramesh Babulal Doshi
         v. State of Gujarat (1996) 9 SCC 225 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
F        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
G        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
H
ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                          897
                  [M. R. SHAH, J.]

      unsustainable and whether the judgment of the appellate court         A
      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
                                                                            B
      from any infirmity, it cannot but be held that the interference
      by the appellate court in the order of acquittal was not 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           C
      trial court in this case.”
   31.2. In K. Ramakrishnan Unnithan v. State of Kerala (1999)
   3 SCC 309, 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          D
   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           E
   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            F
   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.
                                                                            G
   31.3. In 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           H
898      SUPREME COURT REPORTS                              [2020] 9 S.C.R.


A     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 417 CrPC came to the conclusion that
      the judgment of acquittal under appeal was perverse it could not
      set aside that order.
B
      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
C     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
D     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
      weight to the opinion of the trial court which recorded the order
E     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 AIR
F     1952 SC 52; Wilayat Khan v. State of U.P AIR 1953 SC 122)
      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 v. State of A.P. (1979) 1 SCC 355,
G     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.”
H
                                                        (emphasis supplied)
  ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                               899
                    [M. R. SHAH, J.]

       5.4 It is also required to be noted and it is not in dispute that this is   A
a case of circumstantial evidence. As held by this Court in catena of
decisions that in case of a circumstantial evidence, the circumstances,
taken cumulatively, should form a chain so complete that there is no
escape from the conclusion that within all human probability the crime
was committed by the accused and none else and the circumstantial
                                                                                   B
evidence in order to sustain conviction must be complete and incapable
of explanation of any other hypothesis than that of the guilt of the accused
and such evidence should not only be consistent with the guilt of the
accused but should be inconsistent with his innocence. In the case of
Babu (supra), it is observed and held in paragraphs 22 to 24 as under:
       “22. In Krishnan v. State (2008) 15 SCC 430, this Court after               C
       considering a large number of its earlier judgments observed as
       follows: (SCC p. 435, para 15)
       “15. … This Court in a series of decisions has consistently held
       that when a case rests upon circumstantial evidence, such
       evidence must satisfy the following tests:                                  D

       (i) the circumstances from which an inference of guilt is sought
       to be drawn, must be cogently and firmly established;
       (ii) those circumstances should be of definite tendency unerringly
       pointing towards guilt of the accused;                                      E
       (iii) the circumstances, taken cumulatively, should form a chain
       so complete that there is no escape from the conclusion that within
       all human probability the crime was committed by the accused
       and none else; and
       (iv) the circumstantial evidence in order to sustain conviction must        F
       be complete and incapable of explanation of any other hypothesis
       than that of the guilt of the accused and such evidence should not
       only be consistent with the guilt of the accused but should be
       inconsistent with his innocence. (See Gambhir v. State of
       Maharashtra (1982) 2 SCC 351)”
                                                                                   G
       23. In Sharad Birdhichand Sarda v. State of Maharashtra
       (1984) 4 SCC 116 while dealing with circumstantial evidence, it
       has been held that the onus was on the prosecution to prove that
       the chain is complete and the infirmity or lacuna in prosecution
       cannot be cured by false defence or plea. The conditions precedent
                                                                                   H
900            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A           before conviction could be based on circumstantial evidence, must
            be fully established. They are: (SCC p. 185, para 153)
            (i) the circumstances from which the conclusion of guilt is to be
            drawn should be fully established. The circumstances concerned
            “must” or “should” and not “may be” established;
B           (ii) the facts so established should be consistent only with the
            hypothesis of the guilt of the accused, that is to say, they should
            not be explainable on any other hypothesis except that the accused
            is guilty;
            (iii) the circumstances should be of a conclusive nature and
C           tendency;
            (iv) they should exclude every possible hypothesis except the one
            to be proved; and
            (v) there must be a chain of evidence so complete as not to leave
D           any reasonable ground for the conclusion consistent with the
            innocence of the accused and must show that in all human
            probability the act must have been done by the accused.
            A similar view has been reiterated by this Court in State of U.P.
            v. Satish (2005) 3 SCC 114 and Pawan v. State of Uttaranchal
            (2009) 15 SCC 259.
E
            24. In Subramaniam v. State of T.N (2009) 14 SCC 415, while
            considering the case of dowry death, this Court observed that the
            fact of living together is a strong circumstance but that by alone in
            absence of any evidence of violence on the deceased cannot be
            held to be conclusive proof, and there must be some evidence to
F
            arrive at a conclusion that the husband and husband alone was
            responsible therefor. The evidence produced by the prosecution
            should not be of such a nature that may make the conviction of
            the appellant unsustainable. (See Ramesh Bhai v. State of
            Rajasthan (2009) 12 SCC 603).”
G                                                          (emphasis supplied)
             5.5 Even in the case of G. Parshwanath (supra), this Court has
      in paragraphs 23 and 24 observed as under:
            “23. In cases where evidence is of a circumstantial nature, the
H           circumstances from which the conclusion of guilt is to be drawn
ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                         901
                  [M. R. SHAH, J.]

   should, in the first instance, be fully established. Each fact sought   A
   to be relied upon must be proved individually. However, in applying
   this principle a distinction must be made between facts called
   primary or basic on the one hand and inference of facts to be
   drawn from them on the other. In regard to proof of primary facts,
   the court has to judge the evidence and decide whether that
                                                                           B
   evidence proves a particular fact and if that fact is proved, the
   question whether that fact leads to an inference of guilt of the
   accused person should be considered. In dealing with this aspect
   of the problem, the doctrine of benefit of doubt applies. Although
   there should not be any missing links in the case, yet it is not
   essential that each of the links must appear on the surface of the      C
   evidence adduced and some of these links may have to be inferred
   from the proved facts. In drawing these inferences, the court
   must have regard to the common course of natural events and to
   human conduct and their relations to the facts of the particular
   case. The court thereafter has to consider the effect of proved
                                                                           D
   facts.
   24. In deciding the sufficiency of the circumstantial evidence for
   the purpose of conviction, the court has to consider the total
   cumulative effect of all the proved facts, each one of which
   reinforces the conclusion of guilt and if the combined effect of all
   these facts taken together is conclusive in establishing the guilt of   E
   the accused, the conviction would be justified even though it may
   be that one or more of these facts by itself or themselves is/are
   not decisive. The facts established should be consistent only with
   the hypothesis of the guilt of the accused and should exclude every
   hypothesis except the one sought to be proved. But this does not        F
   mean that before the prosecution can succeed in a case resting
   upon circumstantial evidence alone,it must exclude each and every
   hypothesis suggested by the accused, howsoever, extravagant and
   fanciful it might be. There must be a chain of evidence so complete
   as not to leave any reasonable ground for the conclusion consistent
   with the innocence of the accused and must show that in all human       G
   probability the act must have been done by the accused, where
   various links in chain are in themselves complete, then the false
   plea or false defence may be called into aid only to lend assurance
   to the court.”
                                                                           H
902             SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A            6. Applying the law laid down by this Court in the aforesaid
      decisions to the facts of the case on hand, it is to be considered, whether
      in the facts and circumstances of the case, the High Court is justified in
      interfering with the order of acquittal passed by the learned trial Court?
             6.1 In the present case, the prosecution as well as the High Court
B     considered the recovery of photographs; recovery of mobile phone
      belonging to PW7, recovery of the knife and rope at the instance of the
      accused and on alleged disclosure statements of the accused on 9.9.2010.
      The prosecution also relied upon the recovery of jeep in which the
      photographs of the accused were found. The prosecution also relied
      upon the disclosure statement of the accused Anwar Ali with respect to
C     recovery of crates and for the aforesaid prosecution heavily relied upon
      the testimony of PW5, PW6 and PW7. However, it is required to be
      noted that on appreciation of the entire evidence on record, the trial
      Court found material contradictions in the deposition of the witnesses of
      disclosure statements and the recovery of the knife and rope on 9.9.2010
D     and thereby did not believe the recovery of knife, rope, crates on the
      basis of the disclosure statements made by the accused and that too
      recovered on 9.9.2020. However, the High Court without giving any
      cogent reasons has interfered with the findings of fact recorded by the
      learned trial Court solely by observing that those contradictions were
      minor contradictions and therefore the learned trial Court was not justified
E     in acquitting the accused solely on the basis of such minor contradictions.
      However, on considering the entire evidence on record, we are in complete
      agreement with the view taken by the learned trial Court. The
      contradictions which came to be considered by the learned trial Court
      cannot be said to be minor contradictions. In the present case, according
F     to the prosecution and PW18-IO, on the basis of disclosure statements
      made by the accused on 8.9.2010, the knife and rope were recovered on
      9.9.2010. However, PW4 and PW5 have categorically stated in their
      deposition that the police brought the sniffer dogs on 2.9.2010 and the
      sniffer dogs recovered rope, knife etc. on 2.9.2010. So, according to
      even PW4 and PW5, the rope and knife were recovered on 2.9.2010
G     with the help of sniffer dogs. However, neither in the FIR there was a
      mention of recovery of knife and rope on 2.9.2010 with the help of
      sniffer dogs nor the IO in his examination-in-chief has stated so. It is
      required to be noted that the accused were arrested on 8.9.2010 and
      prior thereto on 2.9.2010 the investigating officer visited the spot from
H     where the knife and rope was recovered on 2.9.2010. In cross-
  ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                           903
                    [M. R. SHAH, J.]

examination, the IO admitted that he visited the spot from where the           A
knife was recovered with sniffer dogs on 2.9.2010. He has also admitted
in the cross-examination that this fact has not been mentioned in the FIR
or in the statement of any witness. Thus, the prosecution and the IO
suppressed the material facts. Even in the cross-examination, the IO
has stated that the sniffer dog had done nothing on the spot. In the
                                                                               B
cross-examination, he has also specifically stated that “it is incorrect to
suggest that the sniffer dog had traced the strings Ex. P52, knife Ex.
P59 and vest Ex. P54. However, PW4 and PW5 in their deposition have
categorically stated that the knife and rope were recovered on 2.9.2010.
The aforesaid cannot be said to be minor contradictions. Therefore, the
trial Court was justified in not believing the disclosure statements of the    C
accused and the recovery of the knife, rope etc. on 9.9.2010 as alleged
by the prosecution. From evidence, it emerges that the knife, rope and
vest were recovered on 2.9.2010 i.e., much prior to 8.9.2010 when the
accused were arrested.
       7. Even the recovery of jeep from Chandigarh and recovery of            D
photographs and the recovery of mobile phone belonging to PW7 from
the jeep also create serious doubts. According to the prosecution and
the IO, he received a secret information that one jeep is lying in abandoned
condition on the Chandigarh road and though the distance was around
300 kilo meters, he straightway went to Chandigarh and recovered the
jeep in the presence of Bhunter people brought by him. The Investigating       E
Officer did not follow the procedure as required to be followed under
Section 166 (3 & 4), Cr.P.C. Even he did not comply with the provisions
of Section 100 (4) Cr.P.C. Non-following of the aforesaid provisions
alone may not be a ground to acquit the accused. However, considering
the overall surrounding circumstances and in a case where recovery is          F
seriously doubted, non-compliance of the aforesaid play an important
role.
       8. Even the recovery of the mobile phone from the jeep belonging
to PW7 also creates doubt. Though, PW7 has stated that his mobile was
stolen or cheated, he never filed any complaint earlier. Even the IO has       G
not tried to have the call details of the mobile. He has not tried to verify
from the call details the conversation to or from the mobile.
      Even the disclosure statement of the accused with respect to crates
being sold to PW6 is concerned, it is required to be noted that in the
present case the so-called disclosure statement is found to be suspicious      H
904            SUPREME COURT REPORTS                           [2020] 9 S.C.R.


A     and doubtful. Cogent reasons have been given by the learned trial Court
      for the same.
             9. Now so far as the submission on behalf of the accused that in
      the present case the prosecution has failed to establish and prove the
      motive and therefore the accused deserves acquittal is concerned, it is
B     true that the absence of proving the motive cannot be a ground to reject
      the prosecution case. It is also true and as held by this Court in the case
      of Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80
      that if motive is proved that would supply a link in the chain of
      circumstantial evidence but the absence thereof cannot be a ground to
      reject the prosecution case. However, at the same time, as observed by
C     this Court in the case of Babu (supra), absence of motive in a case
      depending on circumstantial evidence is a factor that weighs in favour
      of the accused. In paragraphs 25 and 26, it is observed and held as
      under:
            “25. In State of U.P. v. Kishanpal (2008) 16 SCC 73, this Court
D           examined the importance of motive in cases of circumstantial
            evidence and observed: (SCC pp. 87-88, paras 38-39)
                “38. … the motive is a thing which is primarily known to the
                accused themselves and it is not possible for the prosecution
                to explain what actually promoted or excited them to commit
E               the particular crime.
            39. The motive may be considered as a circumstance which is
            relevant for assessing the evidence but if the evidence is clear
            and unambiguous and the circumstances prove the guilt of the
            accused, the same is not weakened even if the motive is not a
F           very strong one. It is also settled law that the motive loses all its
            importance in a case where direct evidence of eyewitnesses is
            available, because even if there may be a very strong motive for
            the accused persons to commit a particular crime, they cannot be
            convicted if the evidence of eyewitnesses is not convincing. In
G           the same way, even if there may not be an apparent motive but if
            the evidence of the eyewitnesses is clear and reliable, the absence
            or inadequacy of motive cannot stand in the way of conviction.”
            26. This Court has also held that the absence of motive in a case
            depending on circumstantial evidence is a factor that weighs in
H
  ANWAR ALI AND ANOTHER v. STATE OF HIMACHAL PRADESH                          905
                    [M. R. SHAH, J.]

       favour of the accused. (Vide Pannayar v. State of T.N (2009) 9         A
       SCC 152).”
                                                     (emphasis supplied)
       10. Considering the aforesaid facts and circumstances of the case,
the findings recorded by the learned trial Court, which were based on
appreciation of the entire evidence on record cannot be said to be either     B
perverse or contrary to the evidence on record and/or it cannot be said
that the trial Court did not consider any material evidence on record.
Trial Court was justified in recording the acquittal by observing that
prosecution has failed to complete the entire chain of events. Therefore,
we are of the opinion that in the facts and circumstances of the case, the    C
High Court is not justified in reversing the order of acquittal passed by
the learned trial Court. Under the circumstances, the impugned judgment
and order passed by the High Court cannot be sustained and the same
deserves to be quashed and set aside.
       11. In view of the above and for the reasons stated above, the         D
present appeal succeeds. The impugned judgment and order dated
20.09.2016 passed by the High Court of Himachal Pradesh in Criminal
Appeal No. 464 of 2012 is hereby quashed and set aside, and the judgment
and order dated 15.06.2012 passed by the learned Additional Sessions
Judge, Fast Track Court, Kullu, Himachal Pradesh in Sessions Trial No.
05 of 2011 is hereby restored. The accused-Appellants, namely, Anwar          E
Ali son of Gama Ali and Sharif Mohammad son of Sampat Mohammad
be set at liberty forthwith, if not required in any other case.


Kalpana K. Tripathy                                         Appeal allowed.
                                                                              F




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