Supreme Court of India
JAFARUDHEEN & ORS.versusSTATE OF KERALA
- Citation
- 2022 INSC 464
- Decided
- 22 April 2022
- Disposal
- Disposed off
- Bench
- SANJAY KISHAN KAUL
Holding
An appellate court may disturb an order of acquittal only when the trial court's view is not a possible one; otherwise the presumption of innocence stands and the acquittal must be restored.
Summary
The case involved a violent clash between members of two political parties in Kerala, resulting in the murder of a CPI(M) member. Sixteen accused were charged, but the trial court acquitted A-10 to A-16 while convicting five others. The High Court upheld the convictions but reversed the acquittals of A-10 to A-13, relying on Section 149 IPC and various recoveries. On appeal, the Supreme Court examined the scope of an appeal under Section 378 CrPC, the effect of delays in filing the FIR and recording statements, and the admissibility of evidence under Section 27 of the Evidence Act. It held that an appellate court may overturn an acquittal only if the trial court's view is not a possible one, emphasizing the double presumption of innocence. The Court found the trial court’s reasoning on the credibility of eyewitnesses and the unreliability of recoveries to be sound and restored the acquittals of A-10 to A-13. The convictions of the other accused were left untouched and the remaining appeals were dismissed.
Issues considered
- The proper scope of an appeal against acquittal under Section 378 of the CrPC
- Whether delay in sending the FIR to the jurisdictional magistrate warrants rejection of the prosecution case
- The impact of unexplained delay in recording statements under Section 161 CrPC on witness credibility
- The admissibility and evidentiary value of recoveries under Section 27 of the Evidence Act
- The requirement to prove a common object under Section 149 IPC for unlawful assembly
- The correctness of the High Court's reversal of the trial court's acquittals
Legislation cited
- Code of Criminal Procedure, 1973s. 157, s. 159, s. 161, s. 378, s. 384
- Explosives Substances Acts. 3, s. 5
- Indian Evidence Act, 1872s. 24, s. 25, s. 26, s. 27
- Indian Penal Code, 1860s. 120B, s. 147, s. 148, s. 149, s. 302, s. 427, s. 460
Subjects
appeal against acquittalpresumption of innocenceSection 378 CrPCdelay in FIRSection 161 statementsSection 27 Evidence ActSection 149 IPCunlawful assemblyevidentiary standardsrecovery of evidencepolitical violence
Judgment
[2022] 5 S.C.R. 721 721
JAFARUDHEEN & ORS. A
v.
STATE OF KERALA
(Criminal Appeal Nos. 430-431 of 2015)
B
APRIL 22, 2022
[SANJAY KISHAN KAUL AND M. M. SUNDRESH, JJ.]
Code of Criminal Procedure, 1973: s.378: Appeal against
acquittal – Scope of – Appellate Court has to consider whether
trial court’s view can be termed as a possible one, particularly when C
evidence on record has been analyzed – An order of acquittal adds
up to the presumption of innocence in favour of the accused –
Double presumption that enures in favour of the accused has to be
disturbed only by thorough scrutiny on the accepted legal
parameters – Thus, appellate court has to be relatively slow in D
reversing the order of trial court rendering acquittal.
Criminal Law: FIR: Delay in sending FIR to Magistrate –
FIR starts the process of investigation by setting criminal law into
motion – Investigation officer has to keep the magistrate in the loop
of his ongoing investigation – Such an information is expected to E
reach the jurisdictional magistrate at the earliest point of time –
Delay introduces coloured version, exaggerated account or
concocted story as a result of deliberation and consultation –
However, a mere delay by itself cannot be a sole factor in rejecting
the prosecution’s case.
F
Code of Criminal Procedure, 1973: s.161–Investigating
Officer is expected to kick start his investigation immediately after
registration of a cognizable offense – An inordinate and unexplained
delay may be fatal to the prosecution’s case but only to be considered
by the Court, on the facts of each case – However, non-examination G
of the witness despite being available may call for an explanation
from the Investigating Officer.
Evidence Act: s.27: Fact discovered – Onus – Admissibility
under s.27 is relatable to the information pertaining to a fact
H
721
722 SUPREME COURT REPORTS [2022] 5 S.C.R.
A discovered – It facilitates proof of a fact discovered in consequence
of information received from a person in custody, accused of an
offense – The onus is on the prosecution to prove the fact discovered
from the information obtained from the accused – One cannot lose
sight of the fact that the prosecution may at times take advantage of
B the custody of the accused, by other means – The Court will have to
be conscious of the witness’s credibility and the other evidence
produced when dealing with a recovery under s.27 of the Evidence
Act.
Criminal Law – In the instant case, accused, 16 in numbers,
C assembled, hatched a conspiracy and thereafter attacked deceased
to take out his life – Trial Court convicted A-2, A-4, A-5, A-8, and
A-9 under IPC and acquitted A-10 to A-16 by considering the
evidences on record – High Court confirmed the order of acquittal
against A-14 to A-16 and confirmed the conviction against the other
accused, namely, A-2, A-4, A-5, A-8, and A-9, but it overturned the
D order of acquittal of A-10, A-11, A-12, and A-13 granted by trial
court on the premise that the witnesses who spoke about these
accused’s presence failed to consider the import of s.149 IPC – On
appeal, held: Trial court has taken a possible view that the evidence
rendered by the eyewitnesses does not satisfy the Court qua the
E presence of A-10 to A-13 – As trial court had the advantage of
seeing the witnesses as they deposed, the appellate forum cannot
change the conclusion arrived at thereafter by substituting its views
– High Court has adopted the principle of preponderance of
probability as could be applicable to the civil cases to the case on
hand when more scrutiny is warranted for reversing an order of
F acquittal – For the recovery made from A-12 also, there was no
confirmation from prosecution witnesses – The blood-stained dress
was stated to have been recovered from A-13 from the hospital – It
is not known as to how the said dress reached the hospital, and
there was no evidence forthcoming on that count, apart from
G correlating the said dress to that of the accused – There seemed to
be a structured pattern in the recovery of A-10 to A-13 – Conviction
rendered by High Court against A-10 to A-13 stands set aside –
Acquittal by trial court restored.
H
JAFARUDHEEN & ORS. v. STATE OF KERALA 723
Disposing of the appeals, the Court A
HELD: 1. While dealing with an appeal against acquittal by
invoking Section 378 of the Cr.PC, 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
analyzed. The reason is that an order of acquittal adds up to the B
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 C
the accepted legal parameters. [Para 25][733-E-F]
Mohan @ Srinivas @ Seena @Tailor Seena v. State of
Karnataka 2021 SCC OnLine SC 1233; N.
Vijayakumar v. State of T.N. (2021) 3 SCC 687 – relied
on. D
2. The jurisdictional Magistrate plays a pivotal role during
the investigation process. It is meant to make the investigation
just and fair. The Investigating Officer is to keep the Magistrate
in the loop of his ongoing investigation. The object is to avoid a
possible foul play. The Magistrate has a role to play under Section E
159 of Cr.PC. The first information report in a criminal case starts
the process of investigation by letting the criminal law into motion.
It is certainly a vital and valuable aspect of evidence to corroborate
the oral evidence. Therefore, it is imperative that such an
information is expected to reach the jurisdictional Magistrate at F
the earliest point of time to avoid any possible ante-dating or
ante-timing leading to the insertion of materials meant to convict
the accused contrary to the truth and on account of such a delay
may also not only gets bereft of the advantage of spontaneity,
there is also a danger creeping in by the introduction of a coloured
version, exaggerated account or concocted story as a result of G
deliberation and consultation. However, a mere delay by itself
cannot be a sole factor in rejecting the prosecution’s case arrived
at after due investigation. Ultimately, it is for the Court concerned
H
724 SUPREME COURT REPORTS [2022] 5 S.C.R.
A to take a call. Such a view is expected to be taken after considering
the relevant materials. [Paras 26, 27][744-C-F]
Shivlal v. State of Chhattisgarh (2011) 9 SCC 561 :
[2011] 11 SCR 429; Rajeevan v. State of Kerala [(2003)
3 SCC 355; State of Rajasthan v. Om Prakash (2002) 5
B SCC 745 : [2002] 3 SCR 753 - relied on.
3. The Investigating Officer is expected to kick start his
investigation immediately after registration of a cognizable
offense. An inordinate and unexplained delay may be fatal to the
prosecution’s case but only to be considered by the Court, on
C the facts of each case. There may be adequate circumstances for
not examining a witness at an appropriate time. However, non-
examination of the witness despite being available may call for
an explanation from the Investigating Officer. It only causes doubt
in the mind of the Court, which is required to be cleared. Similarly,
a statement recorded, as in the present case, the investigation
D report is expected to be sent to the jurisdictional Magistrate at
the earliest. A long, unexplained delay, would give room for
suspicion. [Paras 28, 29][748-F-H]
Shahid Khan v. State of Rajasthan (2016) 4 SCC 96 :
[2016] 2 SCR 284; Ganesh Bhavan Patel v. State of
E Maharashtra (1978) 4 SCC 371 : [1979] 2 SCR 94 –
relied on.
4. Section 27 of the Evidence Act is an exception to Sections
24 to 26. Admissibility under Section 27 is relatable to the
information pertaining to a fact discovered. This provision merely
F facilitates proof of a fact discovered in consequence of information
received from a person in custody, accused of an offense. Thus,
it incorporates the theory of “confirmation by subsequent facts”
facilitating a link to the chain of events. It is for the prosecution
to prove that the information received from the accused is
G relatable to the fact discovered. The object is to utilize it for the
purpose of recovery as it ultimately touches upon the issue
pertaining to the discovery of a new fact through the information
furnished by the accused. Therefore, Section 27 is an exception
H
JAFARUDHEEN & ORS. v. STATE OF KERALA 725
to Sections 24 to 26 meant for a specific purpose and thus be A
construed as a proviso. The onus is on the prosecution to prove
the fact discovered from the information obtained from the
accused. This is also for the reason that the information has been
obtained while the accused is still in the custody of the police.
Having understood the aforesaid object behind the provision,
B
any recovery under Section 27 will have to satisfy the Court’s
conscience. One cannot lose sight of the fact that the prosecution
may at times take advantage of the custody of the accused, by
other means. The Court will have to be conscious of the witness’s
credibility and the other evidence produced when dealing with a
recovery under Section 27 of the Evidence Act. [Paras 30, C
31][750-G-H; 751-A-C]
Kusal Toppo v. State of Jharkhand (2019) 13 SCC 676;
Navaneethakrishnan v. State (2018) 16 SCC 161: [2018]
6 SCR 749; H.P. Admn. v. Om Prakash (1972) 1 SCC
249: [1972] 2 SCR 765; Aghnoo Nagesia v. State of D
Bihar [1966] 1 SCR 134; K. Chinnaswamy Reddy v.
State of A.P. [1963] 3 SCR 412 – relied on.
Case Law Reference
(2021) 3 SCC 687 relied on Para 25
E
[2011] 11 SCR 429 relied on Para 27
[(2003) 3 SCC 355 relied on Para 27
[2002] 3 SCR 753 45 relied on Para 27
[2016] 2 SCR 284 relied on Para 29
F
[1979] 2 SCR 94 relied on Para 29
(2019) 13 SCC 676 relied on Para 31
[2018] 6 SCR 749 relied on Para 31
[1972] 2 SCR 765 relied on Para 31 G
[1966] 1 SCR 134 relied on Para 31
[963] 3 SCR 412 relied on Para 31
H
726 SUPREME COURT REPORTS [2022] 5 S.C.R.
A CRIMINAL APPELLATE JURISDICTION: Criminal Appeal
Nos. 430-431 of 2015.
From the Judgment and Order dated 21.10.2014 of the High Court
of Kerala at Ernakulam in Crl. A. No.1417 of 2011 and Crl. R.P. No.1931
of 2011.
B With
Criminal Appeal Nos. 450-451 and 959 of 2015.
Basant R. Sr. Adv., Ramesh Babu M. R., Abdul Latheef M. P.,
Vishnu Pazhanganat, Akshay Sahay, Manu Krishnan, Advs. for the
Appellants.
C
P. V. Surendranath, Sr. Adv., Nishe Rajen Shonker, Mrs. Anu K.
Joy, Alim Anvar, Sawan Kumar Shukla, Subhash Chandran K. R., Mukesh
Kumar Pandey, Harshad V. Hameed, Advs. for the Respondent.
The Judgment of the Court was delivered by
D M. M. SUNDRESH, J.
1. Convictions confirmed and acquittals reversed at the hands of
the Division Bench of the High Court of Kerela are under challenge
before us. The accused, who got their acquittal confirmed, stand as
freemen with no further challenge. Appropriately, our common judgment
E disposes of these appeals emanating from the same occurrence.
BRIEF FACTS:
2. The deceased and the accused belong to two different political
parties – one affiliated to CPI (M) and the other NDF (National
Development Front). There was an altercation between the affiliated
F political members of CPI (M) and NDF on 17.07.2002 at about 4:00
p.m. with the deceased and P.W.8 as the CPI(M) members, and A-3
and A-10 as that of NDF. In the altercation the deceased had reportedly
assaulted A-3.
3. Seeking to avenge, the accused, being 16 in numbers, assembled
G at the family house of A-5 on the same day (i.e.17.07.2002) at about
7:00 p.m. and hatched a conspiracy to take out the life of the deceased.
In pursuance to the aforesaid decision, A-1 to A-13 went to the residence
of the deceased on 18.07.2002 at about 9:30 p.m. in three material objects,
namely, - (i) an auto-rickshaw, (ii) a motorbike, and (iii) a jeep, armed
H with deadly weapons like swords, knives, chopper, etc. While four of
JAFARUDHEEN & ORS. v. STATE OF KERALA 727
[M. M. SUNDRESH, J.]
them (A-7, A-10, A-12, and A-13) waited outside, the others (A-1 to A- A
6, A-8, A-9, and A-11) barged in and indiscriminately attacked the
deceased. In the process, they also exploded country bombs on two
occasions.
4. The occurrence was witnessed by P.W.1, the author of the
First Information Report – Ext. P-1 and others. For the occurrence, B
which took place at about 9.30 p.m. on 18.07.2002, the registration of
FIR/complaint was done in Crime No. 237/2002 at about 11.00 p.m.
against six named accused and other identifiable ones for the offences
punishable under Sections 143, 147, 148, 427, 452, 302 read with 149 of
the Indian Penal Code (for short ‘IPC’) and Section 3 of the Explosives
Substances Act. The registered complaint reached the jurisdictional C
Magistrate at about 4.15 p.m. the next day.
5. P.W.64 took up the investigation, and accordingly arrested the
accused, A-10, A-12 and A-13 on 31.07.2002. Thereafter, recoveries
were made pursuant to their arrest. A-11 surrendered before the Judicial
First Class Magistrate, Punalur, on 05.08.2002. Recoveries have been D
made from A-10, A-12 and A-13 on 01.08.2002. From A-11, recoveries
were made on 13.08.2002.
6. On completion of the investigation, a charge sheet was laid
against 16 accused. Charges were framed against A2, A-4, A-5, A-8, A-
9 to A-16 for the offences punishable under Sections 120-B, 143, 147, E
148, 427, 460, 302 read with 149 IPC and Sections 3 and 5 of the
Explosives Substances Act. As A-1, A-3, A-6 and A-7 were absconding,
the case against them got split up.
7. The prosecution examined 66 witnesses in total while marking
Ext. P-1 to P-97. On behalf of the defence, particularly A-8 & A-9, one F
witness was examined as DW-1, while Ext. D-1 to D-18 were marked.
The material objects 1 to 54 were exhibited and identified before the
Court.
8. The learned Additional District and Sessions Judge, Court I,
Kollam, while acquitting A-10 to A-16, convicted the others for the G
following offences:
• A-2, A-4, A-5, A-8, A-9 – U/s 302 r/w 149 IPC and
sentenced to life imprisonment
• A-2, A-4, A-5, A-8, A-9 – U/s 147 r/w 149 IPC for 1 year
S.I. and fine of Rs.5000 H
728 SUPREME COURT REPORTS [2022] 5 S.C.R.
A • A-2, A-4, A-5, A-8, A-9 – U/s 148, 149 IPC for 2 years S.I.
and fine of Rs.10,000
• A-2, A-4, A-5, A-8, A-9 – U/s 460 IPC for 3 years R.I. and
fine of Rs.15,000
• A-4 – U/s 427 IPC for 6 months S.I. and a fine of Rs.5,000
B
9. Appeals and revisions were filed by both the prosecution and
the de facto complainant, on the one hand, and the convicted accused,
on the other. The High Court of Kerala upheld the conviction and the
sentence imposed upon A-2, A-4, A-5, A-8, and A-9 for offences under
Sections 460, 148, 302 read with 149 IPC and further convicted them
C under Section 427 IPC and Section 3 of the Explosives Substances Act.
The appeal filed by the State against the order of acquittal in favour of
A-14 to A-16 was dismissed, while it was accordingly allowed by
overturning the acquittal qua A-10 to A-13. As the legal battle against
A-14 to A-16 attained finality, the convicted accused have filed these
D appeals.
EVIDENCE BEFORE THE COURT
10. P.W.1 is the relative of the deceased who had seen the
occurrence from inside the house, hiding behind the chairs. All the accused
are known to him. He attributed specific overt acts against a few accused
E and identified a few of them. However, this witness could not identify
A-11, not even named in Ext. P-1, i.e. first information report, despite
being a known person. Similarly, he does not identify A-10.
11. P.W.2 is the father of the deceased, who also took cover
protecting himself by staying in a nearby room. Despite being an eye-
F witness and knowing the accused, he wrongly identified A-10 as A-5.
P.W.2 also does not identify A-11 and A-12.
12. P.W.3 is the maid-servant working at the residence of the
deceased at the relevant point of time. She also wrongly identified A-4
as A-10, notwithstanding her claim that she knew him prior to the
G occurrence. This witness did not say anything about the presence of A-
11, A-12 and A-13, though she speaks of the other accused, as deposed
by P.W.1 and P.W.2. Both these witnesses do not make any reference
to A-13.
13. P.W.4 is the neighbour of the deceased, having witnessed the
H occurrence from outside. He identified A-10 and A-12 by deposing that
JAFARUDHEEN & ORS. v. STATE OF KERALA 729
[M. M. SUNDRESH, J.]
they were standing on the south-western corner of the house. However, A
he did not speak of A-11 and A-13.
14. P.W.21 is the employee (worker) in the ASR Theatre,
Thadikkad situated nearer to the deceased’s house. He had seen the
occurrence from the theatre. He identified A-10, having seen him near
the vicinity of the deceased’s house. His statement under Section 161 of B
the Code of Criminal Procedure (for short ‘Cr.PC’) was recorded nine
days after the incident. Incidentally, the blood-stained clothes of A-10
were recovered from his house, he being not a party to the recovery
mahazar. He also similarly identified A-11 and A-12. He attributes the
specific overt act against A-13 of throwing a bomb. Though he states C
that he saw the occurrence along with C.W.22, the said person was not
examined.
15. P.W.46 saw the incident while returning home. He heard the
gunshot and attributes overt act as against A-10, A-12 and A-13. His
statement was also recorded only on 20.07.2002. He wrongly identified D
A-10 as A-7 while unable to identify A-12. He has not expressed anything
about A-11.
16. The doctor who has been examined as P.W.15 has issued
Ext. P-45 – the post-mortem certificate which, on perusal, indicates
about 30 ante-mortem injuries, of which the majority of them are incised. E
17. A-8 and A-9 got injuries and took treatment in the hospital.
The injuries were found to be incised and thus contrary to the statement
made by them to P.W.45, corroborated with the entry of Accident Register
of Medical Trust Hospital. The cause of the injury, as informed by A-8
and A-9, was that they sustained the injury when the lorry tyre fell upon F
them by accident when they tried to replace it with another. But, in his
evidence, P.W. 45 has stated that it is unlikely, and the injury could only
be due to a sharp-edged hard object.
TRIAL COURT
G
18. The Trial Court rendered its judgment as aforesaid by
undertaking a thorough analysis through a laborious process. It took into
consideration each and every aspect of evidence before rendering its
decision. Perhaps, the only exercise not done was with respect to the
recovery qua A-10 to A-13, particularly on the evidentiary value.
H
730 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 19. It found that A-2, A-4, A-5, A-8, and A-9 have clinching
evidence staring at them. The evidence of eye-witnesses, as well as
that of experts, was taken into account. The contentions regarding the
delay in sending Ext.P-1 – first information report and the injuries suffered
by A-8 and A-9 were duly considered. These two accused took the
same plea under Section 313 Cr.PC questioning, denying their existence
B
at the place of occurrence. The case projected by the defense that the
witnesses are either set up by the prosecution or interested in securing
the conviction was not accepted by giving adequate reasoning. After
concluding that there is insufficient evidence to support the charge
attracting Section 120B of the IPC, A-14 to A-16 were acquitted.
C 20. It acquitted A-10 to A-13 based on the inconsistencies in eye-
witness statements. Two material objects, a motorbike and an auto-
rickshaw were found unrelated to the occurrence of the event or the
evidentiary value of the accused. As such, it granted acquittal to A-10
to A-13. The reasoning of the Trial Court is elucidated hereunder:
D “….Though PW1 would depose that accused Nos. 1 to 6
and 8 to 10 get down from the vehicle parked on the road he did
not say that A13 was among them. He did not depose that A13
exploded Bomb. From the deposition of PW1 it is brought out that
A 1 to A9 and A 11 entered into hall room first and inflicted injuries
E and on getting the cut injury of A4 on the left cheek Ashrar fell
down. Before getting injury of A4 Ashraf suffered cut injury with
sword on his right leg. Thereafter A7, A10, A12 entered into the
hall room inflicted cut injuries on various parts· of. the person of
Ashraf. Ext. A45 and the deposition of PW58 proved that
corresponding injuries found on the dead body of Ashraf. Though
F PW1 could depose the names of A1 to A12 he could not identify
A 1, A3, A6, A7 and A 10, A 11, he could identify A2, A4, A5, AS
and A9. His evidence shows that A11 did not inflict any injury on
Ashraf. PW2 also stated the name of the assailants came inside
the house and caused injury on the person of Ashraf. Though
G PW2 stated the names of A2, A4, A5, AS, A9, A 11 he could
identify only AS andA9. No overt act stated by PW2 against A 11
and on analyzing the evidence of PW2 it is seen that A11 was
armed with sword and it was catched by Ashraf and attacked the
assailants. Thus PW2 has identified accused 8 and 9 only. The
evidence of PWs 1 and 2 and PW58 and Ex. P45 proved that the
H version of PWs 1 and 2 is credible probable to believe. The victim
JAFARUDHEEN & ORS. v. STATE OF KERALA 731
[M. M. SUNDRESH, J.]
sustained 20 incised wounds, on the right side of vertex, right eye A
brow, left cheek and also on various parts of his body. The evidence
of PW58 and Ext. P45 corroborate the testimony of PWs 1 and
2. The other witnesses especially .PW4, PW7, PW21 and PW32
and PW46 have deposed about the incident they have seen outside
the house. Since I have discussed in the earlier paragraphs not
B
reproducing. PW4 identified A4, A8, A9, A10 and A12. As per
the evidence he saw A4 took A8 and A9 through the kitchen door
on the southern side of the house. A 10 and A 12 were in front of
the house of Ashraf. No overt act stated. PW7 through hostile
witness his evidence shows that A4 was driving jeep towards the
house of Ashraf and A5 was in the jeep. According to him he was C
relation with A5. There is no evidence to corroborate his testimony
that A11 has driven motor cycle towards the house of Ashraf.
PW21 though narrated the presence of accused NOs.2,4,5,8,9,
11 and 13 he says that 4 accused has broken the glasses of motor
cycle and car. He also stated that A4 took A8 and A9 in front of
D
the house were A11 and A 13 were present. No overt act stated
against A 11. He could identify A2, A4, A5, A8 and A9, stated that
A13 Kochansar exploded bomb. As per the prosecution records
no accused named Kochansar. The name of A13 is Ansarudheen.
The prosecution failed to prove that A13 Ansarudheen is also
known as Kochansar. Therefore the evidence of PW21, PW32 E
and PW46 that A13 exploded bomb at the yard of the house cannot
be believed. The prosecution could not prove that impact of
Explosion at the yard or nearby place. Hence it cannot be held
that the accused are guilty of offence U/s 3 and 5 Explosive
Substance Act. The above witnesses not properly identified A13.
F
The above prosecution witnesses properly identified A2, A4, A5,
A8 and A9. The prosecution evidence proved that the accused
Nos. 2,4,5,8 and 9 formed an unlawful assembly at the yard of the
house committed rioting and trespassed in to the house of Ashraf
by break opening the front door with the intention to commit the
murder of Ashraf. The prosecution not succeeded to prove the G
offence alleged against the accused NOs, A10, A11 and A12.
The prosecution has not succeeded to prove that the accused
were formed conspiracy at the house of A5 and taken decision to
commit the murder of Ashraf. None of the accused are guilty of
offence U/s 120B.”
H
732 SUPREME COURT REPORTS [2022] 5 S.C.R.
A HIGH COURT
21. The High Court confirmed the order of acquittal against A-14
to A-16 and confirmed the conviction against the other accused, namely,
A-2, A-4, A-5, A-8, and A-9. However, it overturned the order of acquittal
of A-10, A-11, A-12, and A-13 granted by the Trial Court on the premise
B that the witnesses who spoke about these accused’s presence failed to
consider the import of Section 149 IPC. These minor discrepancies ought
to have been ignored, and the prosecution case is supported by both
recoveries and medical, forensic, and scientific evidence.
SUBMISSIONS
C 22. Counsel appearing for A-2, A-4, A-5, A-8, and A-9 contended
that the first information report registered as Ext. P-1 is an after-thought,
created subsequently and thus ante-dated. There is no proper explanation
for referring the jeep with the registration number, which is one of the
material objects recovered under Ext.P-1, when P.W.1 states that he
D came to know about it only the next day of the occurrence. Though Ext.
P-1 was sent after its registration at about 11.00 p.m., it did reach the
jurisdictional Magistrate only at about 4.15 p.m. the next day. This delay
has not been examined properly. The witnesses are either interested or
chance and, therefore, the courts ought to have rejected their testimonies.
They are not only the members of the deceased’s family but also members
E of a particular party. The injuries suffered by A-8 and A-9 have not been
considered in the correct perspective.
23. Mr. R. Basant, learned senior counsel appearing for A-10 to
A-13, has taken us through the law governing the cases pertaining to
appeals filed against orders of acquittal as there is an enlarged presumption
F of innocence. The High Court has committed a jurisdictional error in
reversing the well-merited judgment of the Trial Court by replacing its
views with that of the Trial Court. What is required to be seen is whether
the view of the Trial Court is a possible one. The High Court has
committed an error in placing reliance upon recoveries. It did not go into
the manner in which the recoveries have been made. Section 149 IPC
G
though being a substantive offence, is to be proved in the manner known
to law. There must be a proof of common object. When the witnesses
are not able to identify the accused, the testimonies rendered would
become highly doubtful. The learned senior counsel took us through the
law laid down by this Court in Mohan @ Srinivas @ Seena @Tailor
H Seena v. State of Karnataka, 2021 SCC OnLine SC 1233, wherein it
JAFARUDHEEN & ORS. v. STATE OF KERALA 733
[M. M. SUNDRESH, J.]
was held that when after due examination and review of evidence, the A
Trial Court has passed an order of acquittal, the exercise of the power
of the High Court as imposed by the code must be with circumspect.
SUBMISSIONS ON BEHALF OF THE STATE
24. It is submitted that in the absence of any apparent illegality,
the concurrent decisions rendered by the courts do not warrant any B
interference. Both the Courts below considered all the evidence, eye-
witnesses, material objects and recoveries while also taking into account
the scientific evidence. The motive has also been proved through the
prior occurrence. The High Court rightly considered the recoveries made
along with the oral evidence. It has given its reasons for reversing the C
order of acquittal passed by the Trial Court. The Trial Court did not even
consider the evidentiary value of the recoveries. There is no need for
any interference in such a case, particularly when the contentions raised
were noted. On the issue qua the mentioning of the number of the vehicle
in the FIR, it is submitted that it has not been placed before the Court
and, in any case, the conviction was rendered based on the materials D
available on record.
DISCUSSION
Scope of Appeal filed against the Acquittal:
25. While dealing with an appeal against acquittal by invoking E
Section 378 of the Cr.PC, 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 analyzed. 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 F
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.
Precedents:
G
• Mohan @Srinivas @Seena @Tailor Seena v. State of
Karnataka, [2021 SCC OnLine SC 1233] as hereunder: –
“20. Section 378 CrPC enables the State to prefer an appeal
against an order of acquittal. Section 384 CrPC speaks of
the powers that can be exercised by the Appellate Court. H
734 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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,
B
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 decision of the trial
court is both possible and plausible view. When two views
C 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
D 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 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
E
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.
F
22. At times, courts do have their constraints. We find,
different decisions being made by different courts, namely,
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
G 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
H
JAFARUDHEEN & ORS. v. STATE OF KERALA 735
[M. M. SUNDRESH, J.]
Appellate Court is expected to maintain a degree of caution A
before making any remark.
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 378 CrPC. We
do not wish to multiply the aforesaid principle except placing B
reliance on a recent decision of this court in Anwar
Ali v. State of Himanchal Pradesh, (2020) 10 SCC 166:
14.2. When can the findings of fact recorded by a court
be held to be perverse has been dealt with and
considered in paragraph 20 of the aforesaid decision, C
which reads as under : (Babu case [Babu v. State of
Kerala, (2010) 9 SCC 189 : (2010) 3 SCC (Cri) 1179])
“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 D
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. E
Delhi Admn., (1984) 4 SCC 635 : 1985 SCC (L&S)
131], Excise & Taxation Officer-cum-Assessing
Authority v. Gopi Nath & Sons [Excise & Taxation
Officer-cum-Assessing Authority v. Gopi Nath &
Sons, 1992 Supp (2) SCC 312], Triveni Rubber & F
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], Aruvelu [Arulvelu v. State, (2009) 10 SCC
206 : (2010) 1 SCC (Cri) 288] and Gamini Bala
G
Koteswara Rao v. State of A.P. [Gamini Bala
Koteswara Rao v. 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
H
736 SUPREME COURT REPORTS [2022] 5 S.C.R.
A [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
B
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
C
had an occasion to consider the scope of Section
378 CrPC and the interference by the High Court [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
D 1952 onwards. In para 31, it is observed and held as
under:
“31. An identical question came to be considered
before this Court in Umedbhai Jadavbhai [Umedbhai
Jadavbhai v. State of Gujarat, (1978) 1 SCC
E 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
F learned trial court while acquitting the accused.
Confirming the judgment of the High Court, this Court
observed and held in para 10 as under:
‘10. Once the appeal was rightly entertained
against the order of acquittal, the High Court was
G 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
H of the evidence. This rule will not be applicable in
JAFARUDHEEN & ORS. v. STATE OF KERALA 737
[M. M. SUNDRESH, J.]
the present case where the Sessions Judge has A
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], B
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 C
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 D
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 High
Court, this Court observed in para 8 as under:
E
‘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 F
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, G
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
H
738 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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
B
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
C 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
D
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
E 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
F 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
G 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
H was not justified in discarding the relevant/material
JAFARUDHEEN & ORS. v. STATE OF KERALA 739
[M. M. SUNDRESH, J.]
evidence while acquitting the accused, the High Court, A
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
B
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.
31.3. In Atley [Atley v. State of U.P., AIR 1955 SC C
807 : 1955 Cri LJ 1653], in para 5, this Court observed
and held as under:
‘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 D
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 E
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.
It has been laid down by this Court that it is open
F
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 G
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 H
740 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 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 weight
B
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
C
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 : AIR 1952 SC 52]; Wilayat
Khan v. State of U.P. [Wilayat Khan v. State of
D U.P., 1951 SCC 898 : 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.’
E 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,
F
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.”
• N. Vijayakumar v. State of T.N., [(2021) 3 SCC 687] as
hereunder: –
G
“20. Mainly it is contended by Shri Nagamuthu, learned
Senior Counsel appearing for the appellant that the view
taken by the trial court is a “possible view”, having regard
to the evidence on record. It is submitted that the trial court
has recorded cogent and valid reasons in support of its
H
JAFARUDHEEN & ORS. v. STATE OF KERALA 741
[M. M. SUNDRESH, J.]
findings for acquittal. Under Section 378 CrPC, no A
differentiation is made between an appeal against acquittal
and the appeal against conviction. By considering the long
line of earlier cases this Court in the judgment
in Chandrappa v. State of Karnataka, (2007) 4 SCC 415
: (2007) 2 SCC (Cri) 325 has laid down the general principles
B
regarding the powers of the appellate Court while dealing
with an appeal against an order of acquittal. Para 42 of the
judgment which is relevant reads as under: (SCC p. 432)
“42. From the above decisions, in our considered view,
the following general principles regarding powers of the
appellate court while dealing with an appeal against an C
order of acquittal emerge:
(1) An appellate court has full power to review,
reappreciate and reconsider the evidence upon which
the order of acquittal is founded.
D
(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.
E
(3) Various expressions, such as, “substantial and
compelling reasons”, “good and sufficient grounds”,
“very strong circumstances”, “distorted conclusions”,
“glaring mistakes”, etc. are not intended to curtail
extensive powers of an appellate court in an appeal
against acquittal. Such phraseologies are more in the F
nature of “flourishes of language” to emphasise the
reluctance of an appellate court to interfere with acquittal
than to curtail the power of the court to review the
evidence and to come to its own conclusion.
(4) An appellate court, however, must bear in mind that G
in case of acquittal, there is double presumption in favour
of the accused. Firstly, the presumption of innocence is
available to him under the fundamental principle of
criminal jurisprudence that every person shall be
presumed to be innocent unless he is proved guilty by a
H
742 SUPREME COURT REPORTS [2022] 5 S.C.R.
A competent court of law. Secondly, the accused having
secured his acquittal, the presumption of his innocence
is further reinforced, reaffirmed and strengthened by
the trial court.
(5) If two reasonable conclusions are possible on the
B basis of the evidence on record, the appellate court
should not disturb the finding of acquittal recorded by
the trial court.”
21. Further in the judgment in Murugesan [Murugesan v.
State, (2012) 10 SCC 383: (2013) 1 SCC (Cri) 69] relied on
C by the learned Senior Counsel for the appellant, this Court
has considered the powers of the High Court in an appeal
against acquittal recorded by the trial court. In the said
judgment, it is categorically held by this Court that only in
cases where conclusion recorded by the trial court is not a
possible view, then only the High Court can interfere and
D reverse the acquittal to that of conviction. In the said
judgment, distinction from that of “possible view” to
“erroneous view” or “wrong view” is explained. In clear
terms, this Court has held that if the view taken by the trial
court is a “possible view”, the High Court not to reverse
E the acquittal to that of the conviction.
xxx xxx xxx
23. Further, in Hakeem Khan v. State of M.P., (2017) 5
SCC 719 : (2017) 2 SCC (Cri) 653 this court has considered
the powers of the appellate court for interference in cases
F where acquittal is recorded by the trial court. In the said
judgment it is held that if the “possible view” of the trial
court is not agreeable for the High Court, even then such
“possible view” recorded by the trial court cannot be
interdicted. It is further held that so long as the view of the
trial court can be reasonably formed, regardless of whether
G the High Court agrees with the same or not, verdict of the
trial court cannot be interdicted and the High Court cannot
supplant over the view of the trial court. Para 9 of the
judgment reads as under: (SCC pp. 722-23)
“9. Having heard the learned counsel for the parties, we
H are of the view that the trial court’s judgment is more
JAFARUDHEEN & ORS. v. STATE OF KERALA 743
[M. M. SUNDRESH, J.]
than just a possible view for arriving at the conclusion A
of acquittal, and that it would not be safe to convict
seventeen persons accused of the crime of murder i.e.
under Section 302 read with Section 149 of the Penal
Code. The most important reason of the trial court, as
has been stated above, was that, given the time of 6.30
B
p.m. to 7.00 p.m. of a winter evening, it would be dark,
and, therefore, identification of seventeen persons would
be extremely difficult. This reason, coupled with the fact
that the only independent witness turned hostile, and two
other eyewitnesses who were independent were not
examined, would certainly create a large hole in the C
prosecution story. Apart from this, the very fact that
there were injuries on three of the accused party, two
of them being deep injuries in the skull, would lead to
the conclusion that nothing was premeditated and there
was, in all probability, a scuffle that led to injuries on
D
both sides. While the learned counsel for the respondent
may be right in stating that the trial court went overboard
in stating that the complainant party was the aggressor,
but the trial court’s ultimate conclusion leading to an
acquittal is certainly a possible view on the facts of this
case. This is coupled with the fact that the presence of E
the kingpin Sarpanch is itself doubtful in view of the
fact that he attended the Court at some distance and
arrived by bus after the incident took place.”
24. By applying the abovesaid principles and the evidence
on record in the case on hand, we are of the considered F
view that having regard to material contradictions which
we have already noticed above and also as referred to in
the trial court judgment, it can be said that acquittal is a
“possible view”. By applying the ratio as laid down by this
Court in the judgments which are stated supra, even
assuming another view is possible, same is no ground to G
interfere with the judgment of acquittal and to convict the
appellant for the offence alleged. From the evidence, it is
clear that when the Inspecting Officer and other witnesses
who are examined on behalf of the prosecution, went to
the office of the appellant-accused, the appellant was not H
744 SUPREME COURT REPORTS [2022] 5 S.C.R.
A there in the office and office was open and people were
moving out and in from the office of the appellant. It is also
clear from the evidence of PWs 3, 5 and 11 that the currency
and cellphone were taken out from the drawer of the table
by the appellant at their instance. There is also no reason,
when the tainted notes and the cellphone were given to the
B
appellant at 5.45 p.m. no recordings were made and the
appellant was not tested by PW 11 till 7.00 p.m.”
Delay in sending the (FIR) First Information Report to the
Magistrate:
C 26. The jurisdictional Magistrate plays a pivotal role during the
investigation process. It is meant to make the investigation just and fair.
The Investigating Officer is to keep the Magistrate in the loop of his
ongoing investigation. The object is to avoid a possible foul play. The
Magistrate has a role to play under Section 159 of Cr.PC.
D 27. The first information report in a criminal case starts the process
of investigation by letting the criminal law into motion. It is certainly a
vital and valuable aspect of evidence to corroborate the oral evidence.
Therefore, it is imperative that such an information is expected to reach
the jurisdictional Magistrate at the earliest point of time to avoid any
possible ante-dating or ante-timing leading to the insertion of materials
E meant to convict the accused contrary to the truth and on account of
such a delay may also not only gets bereft of the advantage of spontaneity,
there is also a danger creeping in by the introduction of a coloured version,
exaggerated account or concocted story as a result of deliberation and
consultation. However, a mere delay by itself cannot be a sole factor in
F rejecting the prosecution’s case arrived at after due investigation.
Ultimately, it is for the Court concerned to take a call. Such a view is
expected to be taken after considering the relevant materials.
Precedents:
• Shivlal v. State of Chhattisgarh, [(2011) 9 SCC 561] as
G hereunder :-
“18. This Court in Bhajan Singh v. State of Haryana,
(2011) 7 SCC 421 : (2011) 3 SCC (Cri) 241 has elaborately
dealt with the issue of sending the copy of the FIR to the
Ilaqa Magistrate with delay and after placing reliance upon
H a large number of judgments including Shiv Ram v. State
JAFARUDHEEN & ORS. v. STATE OF KERALA 745
[M. M. SUNDRESH, J.]
of U.P., (1998) 1 SCC 149 : 1998 SCC (Cri) 278 : AIR A
1998 SC 49 and Arun Kumar Sharma v. State of Bihar,
(2010) 1 SCC 108 : (2010) 1 SCC (Cri) 472 came to the
conclusion that CrPC provides for internal and external
checks: one of them being the receipt of a copy of the FIR
by the Magistrate concerned. It serves the purpose that
B
the FIR be not ante-timed or ante-dated. The Magistrate
must be immediately informed of every serious offence so
that he may be in a position to act under Section 159 CrPC,
if so required. The object of the statutory provision is to
keep the Magistrate informed of the investigation so as to
enable him to control the investigation and, if necessary, to C
give appropriate direction. However, it is not that as if every
delay in sending the report to the Magistrate would
necessarily lead to the inference that the FIR has not been
lodged at the time stated or has been ante-timed or ante-
dated or the investigation is not fair and forthright. In a
D
given case, there may be an explanation for delay. An
unexplained inordinate delay in sending the copy of the FIR
to the Ilaqa Magistrate may affect the prosecution case
adversely. However, such an adverse inference may be
drawn on the basis of attending circumstances involved in
a case.” E
• Rajeevan v. State of Kerala, [(2003) 3 SCC 355]as
hereunder: –
“12. Another doubtful factor is the delayed lodging of FIR.
The learned counsel for the appellants highlights this factor.
Here it is worthwhile to refer Thulia Kali v. State of F
T.N. [(1972) 3 SCC 393 : 1972 SCC (Cri) 543] wherein the
delayed filing of FIR and its consequences are discussed.
At para 12 this Court says: (SCC p. 397)
“First information report in a criminal case is an extremely
vital and valuable piece of evidence for the purpose of G
corroborating the oral evidence adduced at the trial. The
importance of the above report can hardly be
overestimated from the standpoint of the accused. The
object of insisting upon prompt lodging of the report to
the police in respect of commission of an offence is to H
746 SUPREME COURT REPORTS [2022] 5 S.C.R.
A obtain early information regarding the circumstances in
which the crime was committed, the names of the actual
culprits and the part played by them as well as the names
of eyewitnesses present at the scene of occurrence. Delay
in lodging the first information report quite often results in
embellishment which is a creature of afterthought. On
B
account of delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account
or concocted story as a result of deliberation and
consultation. It is, therefore, essential that the delay in
C lodging of the first information report should be
satisfactorily explained.”
(emphasis supplied)
xxx xxx xxx
D 14. As feared by the learned counsel for the appellants,
the possibility of subsequent implication of the appellants
as a result of afterthought, maybe due to political bitterness,
cannot be ruled out. This fact is further buttressed by the
delayed placing of FIR before the Magistrate, non-
satisfactory explanation given by the police officer regarding
E the blank sheets in Ext. P-30, counterfoil of the FIR and
also by the closely written bottom part of Ext. P-1,
statement by PW 1. All these factual circumstances read
with the aforementioned decisions of this Court lead to the
conclusion that it is not safe to rely upon the FIR in the
F instant case. The delay of 12 hours in filing FIR in the instant
case irrespective of the fact that the police station is situated
only at a distance of 100 metres from the spot of incident is
another factor sufficient to doubt the genuineness of the
FIR. Moreover, the prosecution did not satisfactorily explain
the delayed lodging of the FIR with the Magistrate.
G
15. This Court in Marudanal Augusti v. State of Kerala,
(1980) 4 SCC 425 : 1980 SCC (Cri) 985 while deciding a
case which involves a question of delayed dispatch of the
FIR to the Magistrate, cautioned that such delay would
throw serious doubt on the prosecution case, whereas
H
JAFARUDHEEN & ORS. v. STATE OF KERALA 747
[M. M. SUNDRESH, J.]
in Arjun Marik v. State of Bihar, 1994 Supp (2) SCC 372 A
: 1994 SCC (Cri) 1551 it was reminded by this Court that:
(SCC p. 382, para 24)
“[T]he forwarding of the occurrence report is
indispensable and absolute and it has to be forwarded
with earliest dispatch which intention is implicit with the B
use of the word ‘forthwith’ occurring in Section 157
CrPC, which means promptly and without any undue
delay. The purpose and object is very obvious which is
spelt out from the combined reading of Sections 157
and 159 CrPC. It has the dual purpose, firstly to avoid
the possibility of improvement in the prosecution story C
and introduction of any distorted version by deliberations
and consultation and secondly to enable the Magistrate
concerned to have a watch on the progress of the
investigation.”
• State of Rajasthan v. Om Prakash, [(2002) 5 SCC 745] D
as hereunder: –
“9. There was delay of nearly 26 hours in lodging the FIR.
The offence is alleged to have taken place at about 9 a.m.
The FIR was registered at about 11.30 a.m. on the next
day. It was contended by Mr Bachawat, learned counsel E
for the respondent, that this delay had assumed importance
and was fatal particularly when the brother of the
prosecutrix, namely, Mam Raj (PW 6) was admittedly at
the house. The delay, according to the counsel, has resulted
in embellishments. Reliance has been placed on the decision F
in the case of Thulia Kali v. State of T.N. [(1972) 3 SCC
393 : 1972 SCC (Cri) 543 : AIR 1973 SC 501] holding that
the first information report in a criminal case is an extremely
vital and valuable piece of evidence for the purpose of
corroborating the oral evidence adduced at the trial. The
object of insisting upon prompt lodging of the report to the G
police in respect of commission of an offence is to obtain
early information regarding the circumstances in which the
crime was committed, the names of the actual culprits and
the part played by them as well as the names of eye-
witnesses present at the scene of occurrence. Delay in H
748 SUPREME COURT REPORTS [2022] 5 S.C.R.
A lodging the first information report quite often results in
embellishment which is a creature of an afterthought. On
account of delay, the report not only gets bereft of the
advantage of spontaneity, danger creeps in of the
introduction of coloured version, exaggerated account or
concocted story as a result of deliberation and consultation.
B
There can be no dispute about these principles relied upon
by Mr Bachawat but the real question in the present case
is about the explanation for the delay. It is not at all unnatural
for the family members to await the arrival of the elders in
the family when an offence of this nature is committed
C before taking a decision to lodge a report with the police.
The reputation and prestige of the family and the career
and life of a young child is involved in such cases. Therefore,
the presence of the brother of the prosecutrix at home is
not of much consequence. It has been established that the
father of the girl along with his brother came back to their
D
house at 7 o’clock in the evening. The girl was unconscious
during the day. PW 2 told her husband as to what had
happened to their daughter. The police station was at a
distance of 15 km. According to the testimony of PW 1 no
mode of conveyance was available. The police was reported
E to the next day morning and FIR was recorded at 11.30
a.m. The delay in reporting the matter to the police has
thus been fully explained.”
Delay in Recording the Statement under Section 161 Cr.PC:
28. The Investigating Officer is expected to kick start his
F investigation immediately after registration of a cognizable offense. An
inordinate and unexplained delay may be fatal to the prosecution’s case
but only to be considered by the Court, on the facts of each case. There
may be adequate circumstances for not examining a witness at an
appropriate time. However, non-examination of the witness despite being
G available may call for an explanation from the Investigating Officer. It
only causes doubt in the mind of the Court, which is required to be
cleared.
29. Similarly, a statement recorded, as in the present case, the
investigation report is expected to be sent to the jurisdictional Magistrate
H at the earliest. A long, unexplained delay, would give room for suspicion.
JAFARUDHEEN & ORS. v. STATE OF KERALA 749
[M. M. SUNDRESH, J.]
Precedents: A
• Shahid Khan v. State of Rajasthan, [(2016) 4 SCC 96]
as hereunder: –
“20. The statements of PW 25 Mirza Majid Beg and PW
24 Mohamed Shakir were recorded after 3 days of the
B
occurrence. No explanation is forthcoming as to why they
were not examined for 3 days. It is also not known as to
how the police came to know that these witnesses saw the
occurrence. The delay in recording the statements casts a
serious doubt about their being eyewitnesses to the
occurrence. It may suggest that the investigating officer C
was deliberately marking time with a view to decide about
the shape to be given to the case and the eyewitnesses to
be introduced. The circumstances in this case lend such
significance to this delay. PW 25 Mirza Majid Beg and PW
24 Mohamed Shakir, in view of their unexplained silence
D
and delayed statement to the police, do not appear to us to
be wholly reliable witnesses. There is no corroboration of
their evidence from any other independent source either.
We find it rather unsafe to rely upon their evidence only to
uphold the conviction and sentence of the appellants. The
High Court has failed to advert to the contentions raised by E
the appellants and reappreciate the evidence thereby
resulting in miscarriage of justice. In our opinion, the case
against the appellants has not been proved beyond
reasonable doubt.”
• Ganesh Bhavan Patel v. State of Maharashtra, [(1978) F
4 SCC 371] as hereunder: –
“15. As noted by the trial Court, one unusual feature which
projects its shadow on the evidence of PWs Welji, Pramila
and Kuvarbai and casts a serious doubt about their being
eyewitnesses of the occurrence, is the undue delay on the G
part of the investigating officer in recording their statements.
Although these witnesses were or could be available for
examination when the investigating officer visited the scene
of occurrence or soon thereafter, their statements under
Section 161, Cr.P.C. were recorded on the following day.
H
750 SUPREME COURT REPORTS [2022] 5 S.C.R.
A Welji (PW 3) was examined at 8 a.m., Pramila at 9.15 or
9.30 a.m., and Kuvarbai at 1 p.m. Delay of a few hours,
simpliciter, in recording the statements of eyewitnesses may
not, be itself, amount to a serious infirmity in the prosecution
case. But it may assume such a character if there are
concomitant circumstances to suggest that the investigator
B
was deliberately marking time with a view to decide about
the shape to be given to the case and the eyewitnesses to
be introduced. A catena of circumstances which lend such
significance to this delay, exists in the instant case.
xxx xxx xxx
C
29. Thus considered in the light of the surrounding
circumstances, this inordinate delay in registration of the
‘F.I.R.’ and further delay in recording the statements of
the material witnesses, casts a cloud of suspicion on the
credibility of the entire warp and woof of the prosecution
D story.
xxx xxx xxx
47. All the infirmities and flaws pointed out by the trial Court
assumed importance, when considered in the light of the
E all-pervading circumstance that there was inordinate delay
in recording Ravji’s statement (on the basis of which the
“F.I.R.” was registered) and further delay in recording the
statements of Welji, Pramila and Kuvarbai. This
circumstance, looming large in the back-ground, inevitably
leads to the conclusion, that the prosecution story was
F conceived and constructed after a good deal of deliberation
and delay in a shady setting, highly redolent of doubt and
suspicion.”
Recovery under Section 27 of the Evidence Act:
30. Section 27 of the Evidence Act is an exception to Sections 24
G
to 26. Admissibility under Section 27 is relatable to the information
pertaining to a fact discovered. This provision merely facilitates proof of
a fact discovered in consequence of information received from a person
in custody, accused of an offense. Thus, it incorporates the theory of
“confirmation by subsequent facts” facilitating a link to the chain of
H events. It is for the prosecution to prove that the information received
JAFARUDHEEN & ORS. v. STATE OF KERALA 751
[M. M. SUNDRESH, J.]
from the accused is relatable to the fact discovered. The object is to A
utilize it for the purpose of recovery as it ultimately touches upon the
issue pertaining to the discovery of a new fact through the information
furnished by the accused. Therefore, Section 27 is an exception to
Sections 24 to 26 meant for a specific purpose and thus be construed as
a proviso.
B
31. The onus is on the prosecution to prove the fact discovered
from the information obtained from the accused. This is also for the
reason that the information has been obtained while the accused is still
in the custody of the police. Having understood the aforesaid object
behind the provision, any recovery under Section 27 will have to satisfy C
the Court’s conscience. One cannot lose sight of the fact that the
prosecution may at times take advantage of the custody of the accused,
by other means. The Court will have to be conscious of the witness’s
credibility and the other evidence produced when dealing with a recovery
under Section 27 of the Evidence Act.
D
Precedents:
• Kusal Toppo v. State of Jharkhand,[(2019) 13 SCC 676]
as hereunder: –
“25. The law under Section 27 of the Evidence Act is well
settled now, wherein this Court in Geejaganda E
Somaiah v. State of Karnataka, (2007) 9 SCC 315 : (2007)
3 SCC (Cri) 135 has observed as under : (SCC p. 324, para
22)
“22. As the section is alleged to be frequently misused by
the police, the courts are required to be vigilant about its F
application. The court must ensure the credibility of evidence
by police because this provision is vulnerable to abuse. It
does not, however, mean that any statement made in terms
of the aforesaid section should be seen with suspicion and
it cannot be discarded only on the ground that it was made G
to a police officer during investigation. The court has to be
cautious that no effort is made by the prosecution to make
out a statement of the accused with a simple case of
recovery as a case of discovery of fact in order to attract
the provisions of Section 27 of the Evidence Act.”
H
752 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 26. The basic premise of Section 27 is to only partially lift
the ban against admissibility of inculpatory statements made
before the police, if a fact is actually discovered in
consequence of the information received from the accused.
Such condition would afford some guarantee. We may
additionally note that, the courts need to be vigilant while
B
considering such evidence.
27. This Court in multiple cases has reiterated the aforesaid
principles under Section 27 of the Evidence Act and only
utilised Section 27 for limited aspect concerning recovery
(refer Pulukuri Kotayya v. King Emperor, 1946 SCC
C OnLine PC 47 : (1946-47) 74 IA 65; Jaffar Hussain
Dastagir v. State of Maharashtra, (1969) 2 SCC 872 :
AIR 1970 SC 1934). As an additional safeguard we may
note that reliance on certain observations made in certain
precedents of this Court without understanding the
D background of the case may not be sustainable. There is
no gainsaying that it is only the ratio which has the
precedential value and the same may not be extended to
an obiter. As this Court being the final forum for appeal,
we need to be cognizant of the fact that this Court generally
considers only legal aspects relevant to the facts and
E circumstances of that case, without elaborately discussing
the minute hyper-technicalities and factual intricacies
involved in the trial.”
• Navaneethakrishnan v. State, [(2018) 16 SCC 161] as
hereunder: –
F
“23. The learned counsel for the appellant-accused
contended that the statements given by the appellant-
accused are previous statements made before the police
and cannot be therefore relied upon by both the appellant-
accused as well as the prosecution. In this view of the matter,
G it is pertinent to mention here the following decision of this
Court in Selvi v. State of Karnataka, (2010) 7 SCC 263 :
(2010) 3 SCC (Cri) 1 wherein it was held as under : (SCC
pp. 334-35, paras 133 & 134)
“133. We have already referred to the language of Section
H 161 CrPC which protects the accused as well as suspects
JAFARUDHEEN & ORS. v. STATE OF KERALA 753
[M. M. SUNDRESH, J.]
and witnesses who are examined during the course of A
investigation in a criminal case. It would also be useful to
refer to Sections 162, 163 and 164 CrPC which lay down
procedural safeguards in respect of statements made by
persons during the course of investigation. However, Section
27 of the Evidence Act incorporates the “theory of
B
confirmation by subsequent facts” i.e. statements made in
custody are admissible to the extent that they can be proved
by the subsequent discovery of facts. It is quite possible
that the content of the custodial statements could directly
lead to the subsequent discovery of relevant facts rather
than their discovery through independent means. Hence such C
statements could also be described as those which “furnish
a link in the chain of evidence” needed for a successful
prosecution…..”
• H.P. Admn. v. Om Prakash, [(1972) 1 SCC 249] as
hereunder:– D
“8…We are not unaware that Section 27 of the Evidence
Act which makes the information given by the accused while
in custody leading to the discovery of a fact and the fact
admissible, is liable to be abused and for that reason great
caution has to be exercised in resisting any attempt to E
circumvent, by manipulation or ingenuity of the Investigating
Officer, the protection afforded by Section 25 and Section
26 of the Evidence Act. While considering the evidence
relating to the recovery we shall have to exercise that caution
and care which is necessary to lend assurance that the
F
information furnished and the fact discovered is credible.”
• Aghnoo Nagesia v. State of Bihar, [(1966) 1 SCR 134]
as hereunder: –
“9. Section 25 of the Evidence Act is one of the provisions
of law dealing with confessions made by an accused. The G
law relating to confessions is to be found generally in
Sections 24 to 30 of the Evidence Act and Sections 162
and 164 of the Code of Criminal Procedure, 1898. Sections
17 to 31 of the Evidence Act are to be found under the
heading “Admissions”. Confession is a species of
H
754 SUPREME COURT REPORTS [2022] 5 S.C.R.
A admission, and is dealt with in Sections 24 to 30. A confession
or an admission is evidence against the maker of it, unless
its admissibility is excluded by some provision of law. Section
24 excludes confessions caused by certain inducements,
threats and promises. Section 25 provides: “No confession
made to a police officer, shall be proved as against a person
B
accused of an offence”. The terms of Section 25 are
imperative. A confession made to a police officer under
any circumstances is not admissible in evidence against the
accused. It covers a confession made when he was free
and not in police custody, as also a confession made before
C any investigation has begun. The expression “accused of
any offence” covers a person accused of an offence at the
trial whether or not he was accused of the offence when
he made the confession. Section 26 prohibits proof against
any person of a confession made by him in the custody of a
police officer, unless it is made in the immediate presence
D
of a Magistrate. The partial ban imposed by Section 26
relates to a confession made to a person other than a police
officer. Section 26 does not qualify the absolute ban imposed
by Section 25 on a confession made to a police officer.
Section 27 is in the form of a proviso, and partially lifts the
E ban imposed by Sections 24, 25 and 26. It provides that
when any fact is deposed to as discovered in consequence
of information received from a person accused of any
offence, in the custody of a police officer, so much of such
information, whether it amounts to a confession or not, as
relates distinctly to the fact thereby discovered, may be
F
proved. Section 162 of the Code of Criminal Procedure
forbids the use of any statement made by any person to a
police officer in the course of an investigation for any
purpose at any enquiry or trial in respect of the offence
under investigation, save as mentioned in the proviso and in
G cases falling under sub-section (2), and it specifically
provides that nothing in it shall be deemed to affect the
provisions of Section 27 of the Evidence Act. The words of
Section 162 are wide enough to include a confession made
to a police officer in the course of an investigation. A
statement or confession made in the course of an
H
JAFARUDHEEN & ORS. v. STATE OF KERALA 755
[M. M. SUNDRESH, J.]
investigation may be recorded by a Magistrate under Section A
164 of the Code of Criminal Procedure subject to the
safeguards imposed by the section. Thus, except as provided
by Section 27 of the Evidence Act, a confession by an
accused to a police officer is absolutely protected under
Section 25 of the Evidence Act, and if it is made in the
B
course of an investigation, it is also protected by Section
162 of the Code of Criminal Procedure, and a confession
to any other person made by him while in the custody of a
police officer is protected by Section 26, unless it is made
in the immediate presence of a Magistrate. These provisions
seem to proceed upon the view that confessions made by C
an accused to a police officer or made by him while he is in
the custody of a police officer are not to be trusted, and
should not be used in evidence against him. They are based
upon grounds of public policy, and the fullest effect should
be given to them.”
D
• K. Chinnaswamy Reddy v. State of A.P., [(1963) 3 SCR
412] as hereunder: –
“9. Let us then turn to the question whether the statement
of the appellant to the effect that “he had hidden them (the
ornaments)” and “would point out the place” where they E
were, is wholly admissible in evidence under Section 27 or
only that part of it is admissible where he stated that he
would point out the place but not that part where he stated
that he had hidden the ornaments. The Sessions Judge in
this connection relied on Pulukuri Kotayya v. King-
Emperor [(1946) 74 IA 65] where a part of the statement F
leading to the recovery of a knife in a murder case was
held inadmissible by the Judicial Committee. In that case
the Judicial Committee considered Section 27 of the Indian
Evidence Act, which is in these terms:
“Provided that, when any fact is deposed to as G
discovered in consequence of information received from
a person accused of any offence, in the custody of a
police officer, so much of such information, whether it
amounts to a confession or not, as relates distinctly to
the fact thereby discovered, may be proved.” H
756 SUPREME COURT REPORTS [2022] 5 S.C.R.
A This section is an exception to Sections 25 and 26, which
prohibit the proof of a confession made to a police officer
or a confession made while a person is in police custody,
unless it is made in immediate presence of a Magistrate.
Section 27 allows that part of the statement made by the
B accused to the police “whether it amounts to a confession
or not” which relates distinctly to the fact thereby
discovered to be proved. Thus even a confessional statement
before the police which distinctly relates to the discovery
of a fact may be proved under Section 27. The Judicial
Committee had in that case to consider how much of the
C information given by the accused to the police would be
admissible under Section 27 and laid stress on the words
“so much of such information … as relates distinctly to the
fact thereby discovered” in that connection. It held that the
extent of the information admissible must depend on the
D exact nature of the fact discovered to which such
information is required to relate. It was further pointed out
that “the fact discovered embraces the place from which
the object is produced and the knowledge of the accused
as to this, and the information given must relate distinctly to
this fact”…..”
E
On Merit:
32. We shall first take the case of the accused who suffered
conviction at the hands of the Trial Court and the High Court. On perusal,
we find that the courts have dealt with all the contentions thoroughly.
F The Trial Court considered the issue qua the delay, and the reasoning
rendered thereunder does not warrant interference. We do not find any
material to hold that the delay is willful and deliberate to the extent of
creating any suspicion. The occurrence happened at night and Ext. P1
reached on the next day evening. There is no clarity on the mode. Perhaps
G it reached late during the day as it would have been felt not to place it
before the jurisdictional Magistrate during the night-time, at the time of
occurrence. The Trial Court has considered this aspect, and as we find
no infirmity in its reasoning, which is rendered by taking into consideration
the other evidence available on record, including the deposition of the
eye-witnesses, we are inclined to reject the said contention.
H
JAFARUDHEEN & ORS. v. STATE OF KERALA 757
[M. M. SUNDRESH, J.]
33. It is also contended that it would not be probable to make a A
reference in Ext. P1 about the registration number of vehicles which
was known to P.W.1 only the next day. Though not raised before the
Trial Court, the said contention also deserves to be rejected for the
reasoning aforesaid. The evidence available on record would suggest
the place of occurrence and the manner in which it happened. The Trial
B
Court found acceptance of the testimonies of the witnesses who saw
the occurrence. The deposition was rendered by P.W.1 after the
registration of Exhibit P1. This would not materially alter the case of the
prosecution.
34. Though A-8 and A-9 were injured, they have taken a plea that
they were not present at the place of occurrence. The Trial Court was C
right in holding that the doctor’s evidence and the evidence of the eye-
witnesses would clearly explain the reasons behind the injury suffered.
The accused (A-8 and A-9) suffered the injury at the place of occurrence,
which they denied. Thus, the said contention raised also deserves to be
rejected. D
35. We find that nothing has been elicited from the eye-witnesses
insofar as the aforesaid accused are concerned to impeach through their
evidence. Merely because the witnesses are family members apart from
being chance witnesses, their testimonies cannot be rejected. P.W.’s 4
and 21 are likely to be seen near the place of occurrence. P.W. 21 was
E
working in the theatre nearby, and P.W.4 was a neighbour. Though they
would not have seen the occurrence from inside the house, their presence
cannot be doubted to the extent of being present there. Therefore, their
evidence as applicable to A-2, A-4, A-5, A-8 and A-9 must be approved.
Both the courts have considered the entire evidence available in drawing
their conclusion, which we do not find to be perverse. In such a view of F
the matter, Criminal Appeal Nos. 450-451 of 2015 and Criminal Appeal
No. 959 of 2015 stand dismissed.
36. This takes us to the remaining criminal appeals being Criminal
Appeal Nos.430-431 of 2015. We find considerable force in the
submission made by Mr. R. Basant, learned senior counsel. The Trial G
Court has given cogent reasoning for acquitting these accused. It found
the witnesses struggling and going back and forth to identify these accused
persons. Incidentally, it found that two material objects in which A-8 and
A-11 were involved either by travelling to the place of occurrence or by
owning are not proved by duly connecting them. Very exhaustive reasons
have been given for coming to the said conclusion. H
758 SUPREME COURT REPORTS [2022] 5 S.C.R.
A 37. The High Court found fault with the Trial Court by relying on
Section 149 IPC. To attract Section 149, the prosecution has to prove its
foundational facts. The Trial Court has taken a possible view that the
evidence rendered by the eye-witnesses does not satisfy the Court qua
the presence of A-10 to A-13. As recorded by us, adequate reasons
have been given for coming to this conclusion. In that context, the Trial
B
Court held that P.W.1 and P.W.2 did not state that A-11 inflicted injuries.
The Trial Court had the advantage of seeing the witnesses as they
deposed. The appellate forum cannot change the conclusion arrived at
thereafter by substituting its views. It seems to us that the High Court
has adopted the principle of preponderance of probability as could be
C applicable to the civil cases to the case on hand when more scrutiny is
warranted for reversing an order of acquittal.
38. The reasoning of the Trial Court for not going with the evidence
of P.W. 21 and P.W. 46 as against A-11 and A-13 appears to be an
acceptable one as it was extremely doubtful on the evidence rendered
D by the eye-witnesses who actually saw the occurrence from outside the
house. Furthermore, these witnesses, P.W.21 and P.W.46, have given
their statements under Section 161 Cr.PC only after nine days and two
days delay subsequently. Therefore, we can draw our analogical
reasoning since the evidentiary arguments raised on behalf of the
statements provided by these witnesses raise suspicion and are likely to
E mislead or, at any rate, not firm enough to support a seriously contested
conclusion. Thus, to the Trial Court’s decision, we give our approval.
39. The High Court placed its reliance also on the recovery coupled
with the scientific evidence. We believe that such recoveries are expected
to be proved if relied upon by the Court. As against P.W. 35, who signed
F the recovery mahazar, he was not even acquainted with the place and
lived in a far distant area. Similarly, P.W. 33 is not a resident of the
locality. Except for P.W.4, the other witnesses have not identified the
material object recovered.
40. P.W.40, who signed the recovery mahazarqua A-11, turned
G hostile. Furthermore, the arrest of A-11 was made on 05.08.2002, while
the recovery was made on 13.08.2002, creating a serious doubt.
41. For the recovery made from A-12 also, there is no confirmation
from P.W.1 to P.W.3. P.W.34, who signed a mahazar is also a CPI(M)
party member. We may also hasten to add that P.W.64, Investigating
H Officer, feigns ignorance of the witnesses who signed the recovery
JAFARUDHEEN & ORS. v. STATE OF KERALA 759
[M. M. SUNDRESH, J.]
mahazar pertaining to A-10 and A-11 as to whether they belong to the A
said party or not as he did not even know as to where they hail from. On
the recovery made from A-12, mahazar was signed by P.W.50, who
was also incidentally a CPI(M) member and the other attesting member
was not examined. It is also improbable that A-12 could wear the same
dress for more than 10 days with the bloodstains. The same logic would
B
also apply to A-10 as well.
42. The blood-stained dress was stated to have been recovered
from A-13 from the hospital. It is not known as to how the said dress
reached the hospital, and there is no evidence forthcoming on that count,
apart from correlating the said dress to that of the accused.
C
43. From the above, we can find a structured pattern in the
recovery of A-10 to A-13. There appears to be some anxiety on the part
of the prosecution to make compulsory recoveries. The recoveries are
said to have been made from the house of P.W.21, having no connection
with A-10. The fallacious notion that the recovery of such an incriminating
article was made from a place that might also be accessible to the P.W.21, D
is also one of the doubts we sense in the following factual analogy of this
case. P.W. 21 is also the same witness who has given his 161 Cr.PC
statement nine days after the incident pertaining to the accused. This
further raises the question on the credibility of the prosecution case.
44. Upon the discussion made as aforesaid, we are inclined to E
dismiss the appeals filed being Criminal Appeal No.450-451 of 2015 and
Criminal Appeal No.959 of 2015 confirming the conviction rendered by
the High Court. The conviction rendered by the High Court against the
appellants in Criminal Appeal No. 430-431 of 2015 arrayed as A-10 to
A-13 stands set aside. Consequently, the appeals filed by accused nos. F
A-10 to A-13 being Criminal Appeal No.430-431 of 2015 are allowed by
setting aside the judgment rendered by the High Court and restoring the
acquittal rendered by the Trial Court. Bail bonds, if any, pertaining to A-
10 to A-13 stand discharged. Pending application(s), if any, stand(s)
disposed of.
G
Devika Gujral Appeals disposed of.
(Assisted by : Shevali Monga, LCRA)
H
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