Paragraph numbers below are the court’s original numbering, recovered from the source text.
12. In Brajendrasingh v. State of M.P.4, this Court held that the circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete so as not to leave any substantial doubt in the mind of the Court. The Court held as under: “27. There is no doubt that it is not a case of direct evidence but the conviction of the accused is founded on circumstantial evidence. It is a settled principle of law that the prosecution has to satisfy certain conditions before a conviction based on circumstantial evidence can be sustained. The circumstances from which the conclusion of guilt is to be drawn should be fully established and should also be consistent with only one hypothesis i.e. the guilt of the accused. The circumstances should be conclusive and proved by the prosecution. There must be a chain of events so complete 4 2012 4 SCC 289 so as not to leave any substantial doubt in the mind of the Court. Irresistibly, the evidence should lead to the conclusion inconsistent with the innocence of the accused and the only possibility that the accused has committed the crime. To put it simply, the circumstances forming the chain of events should be proved and they should cumulatively point towards the guilt of the accused alone. In such circumstances, the inference of guilt can be justified only when all the incriminating facts and circumstances are found to be incompatible with the innocence of the accused or the guilt of any other person.”
13. The primary question in the present appeals is as to whether, the prosecution has recovered the dead body prior to recording of confessional statements of the accused vide Ex. PW2/A and Ex. PW15/C of Satish Kumar and Rajeev Kumar.
14. It is contended that the information with respect to death of Ratti Ram was received by Inspector Ram Singh (PW-15) on the phone by one of the appellants Satish Kumar at 07.15 hours. PW-15 proceeded to Balh Churani forest along with other police officials after receipt of such information. Ex. PW1/A is the statement of Neelam Sharma recorded at 12.45 pm by PW-15 at Village Balh Churani. The FIR is registered at 14.05 hours.
15. The first statement of Neelam Sharma (Ex. PW 1/A) is that she came to know from the police, when they arrived at the village, that Satish Kumar and Rajeev Kumar have killed her father. She as PW1 deposed that the statement of the accused was recorded before they proceeded to the forest, and that except ward member (Jaswant Singh) nobody had told her that her father had been murdered by Satish Kumar and Rajeev Kumar. It is after her statement was recorded that she went to the forest with the police, and the witness Jaswant Singh and Kuldeep Singh, and accused Rajeev Kumar and Satish Kumar. She further deposed that PW-2 Jaswant Singh had informed her before the arrival of the police that the dead body of her father was lying in the forest. Jaswant Singh is ward member from Balh Churani of Gram Panchayat Robin. Some officials proceeded to the spot, whereas some came along with dead body of her father. She denied that Balh Churani forest is a big forest.
16. On the other hand, PW-2-Jaswant Singh was declared hostile when he deposed that no disclosure statement was made by Rajeev Kumar in his presence. He was cross-examined by the public prosecutor. He denied that any disclosure statement was made by the accused Satish Kumar and Rajeev Kumar. He also denied that Rajeev Kumar had signed any statement in his presence. He denied other recovery memos as well. In the cross-examination by the accused, he admitted that Balh Churani forest starts near the house of deceased Ratti Ram and many registered hunters used to come to this forest for hunting prior to the occurrence. Some hunters without permission, would also come to the forest. The dead body of Ratti Ram was recovered from a distance of approximately 1 KM from his house. The motorable road is at a distance of 1 ½ KM from the dead body. He deposed that the statement of Neelam Sharma and accused Satish Kumar was recorded near the dead body after identification of the dead body. He deposed that Satish Kumar stated to the police that he fired a gunshot by mistake but he had not stated that the gunshot was fired by him and by Rajeev Kumar. He stated that Rajeev Kumar had stated to the police that their gun was not used for firing but was still taken into possession by the police. He admitted that there were criminal cases between Kanshi Ram, father of Satish Kumar and himself, but those cases were compromised.
17. PW-3 Kuldeep Singh turned hostile and denied that any statement was made by accused Satish Kumar and Rajeev Kumar in his presence. In cross-examination he deposed that 15-20 persons of Balh Churani Village had gone to the forest. He admits that the dead body was searched by the police and was not demarcated by anybody else.
18. PW-15 Ram Singh in his cross-examination deposed that the accused Satish Kumar and Rajeev Kumar were arrested on 22nd December, 2009 at 1.30 pm. He categorically deposed that he had not informed Jaswant Singh (PW-2) before proceeding from the police station. He did not enquire with anybody over the telephone from the police station pursuant to Daily Diary Report. He deposed that he came to know that deceased had died due to gunshot injury before recording the statement of Neelam Sharma. The accused Satish Kumar and Rajeev Kumar were questioned in the presence of Jaswant Singh and Kuldeep Singh. He denied that no telephone call was made by Satish Kumar to police station. He admitted that the place where the dead body was lying was about 1 KM from the house of Ratti Ram and both the accused collectively identified the place where the dead body was lying.
19. The phone call was received by police at 7.15 am. The distance of the place of recovery of dead body in forest from the house of the deceased is only about 2 Kilometers approx. In the first statement of Neelam Sharma recorded at 12.45 pm, there is an assertion that her father was killed by gun shot by Satish Kumar and Rajeev Kumar. How could she disclose the names of the assailants, if the police had yet to start investigation? The statement of the accused Satish Kumar was recorded prior to the statement of Rajeev Kumar which was recorded between 1.30 to 2.00 pm as per PW-15. But as per PW-2 Jaswant Singh, the police called him and got the first confirmation about the incident from him, whereas the IO completely denied having made any attempt to contact PW-2 to get any information. As per the IO, he proceeded to Balh Churani forest after associating Satish Kumar, Jaswant Singh, Kuldeep Singh and Neelam Sharma. The conclusion of the cause of death as due to gunshot by Satish Kumar and Rajeev Kumar could find mention in the FIR, which is the basis of initiating the investigating process, only if the dead body had already been recovered. The IO has given contradictory statement as that of statement of PW-1 Neelam Sharma as well as PW-2 Jaswant Singh. The statements of the witnesses do not appear to be trustworthy so as to maintain conviction of the appellants. The evidence of the prosecution does not inspire confidence.
20. The entire prosecution case is based upon the telephone call made by Satish Kumar but no call details have been produced to verify the correctness of the telephone call. As per the IO, there was no verification made in pursuance of the phone call received.
21. The other incriminating circumstance weighed with the High Court is the recovery of the single barrel gun with the cartridge from the house of Lekh Ram, the licence holder. The report of the forensic science laboratory would only show that such gun was used in the commission of crime, but the prosecution has failed to establish which of the accused has actually used the gun. The disclosure statement of the accused Satish Kumar is that he fired from the gun. But the recovery of the gun is on the basis of disclosure statement of accused Rajeev Kumar. There is no direct evidence as to the use of licensed gun of Lekh Ram, though the gun along with empty and live cartridges were recovered on the statement of Rajeev Kumar. It is not possible to conclusively hold that it was either Rajeev Kumar or Satish Kumar who fired upon the deceased. In the absence of the evidence as to which of the two accused fired upon the deceased, the accused cannot be convicted only on the basis of recovery of gun used in the commission of crime.
22. The High Court has convicted all the accused additionally for the offences under Sections 25 and 27 of the Act. None of the conditions mentioned in Section 25 of the Act are even broadly extended towards all the accused including Lekh Ram, the licensee. Section 27 of the Act provides for punishment if whoever uses any arms or ammunition in contravention of Section 5 of the said Act. Again, none of the conditions mentioned in Section 5 are attracted towards any of the accused including Lekh Ram. At best, there could be an allegation of violation of conditions of licence but, none of the accused have been charged for violation under Section 30 of the Act. Therefore, none of the accused is liable for conviction for any offence under the Act.
23. In a case based upon circumstantial evidence motive is relevant but the prosecution has failed to prove any motive on the part of the accused. As per the statement of Neelam Sharma (PW-1), the motive was land dispute with Satish Kumar. If such was a motive, then there is no reason for her to contact Satish Kumar, who was said to be staying near her house, to find out whereabouts of her father. The said motive has no foundation to stand.
24. The trial court has recorded an order of acquittal. Such order of acquittal could be interfered with only if there was perversity in the findings recorded by the trial court. Mere fact that the High Court has a different opinion will not be sufficient to enable the High Court to set aside the order of acquittal. The High Court in appeal took a different view than what was taken by the trial court to set aside the judgment and convict the appellants herein. While exercising the jurisdiction under Section 389 of the Code of Criminal Procedure, 19735, especially when trial court has recorded a finding of not proving the guilt, the Appellate Court should interfere only if the findings are perverse and are not possible by any reasonable person. The High Court in an appeal against acquittal does not interfere only if the Appellate Court has a different view on process of evidence than what was taken by the learned trial court.
This Court in Chandrappa and Others v. State of Karnataka6 considered the scope of powers of the appellate court against an order of acquittal passed by the trial court under the Code and held as under:- 5 For short “the Code” 6 (2007) 4 SCC 415 “42. From the above decisions, in our considered view, the following general principles regarding powers of appellate Court while dealing with an appeal against an order of acquittal emerge: (1) An appellate Court has full power to review, reap-preciate and reconsider the evidence upon which the order of acquittal is founded; (2) The Code of Criminal Procedure, 1973 puts no limitation, restriction or condition on exercise of such power and an appellate Court on the evidence before it may reach its own conclusion, both on questions of fact and of law; (3) Various expressions, such as, “substantial and com-pelling reasons”, “good and sufficient grounds” “very strong circumstances”, “distorted conclusions”, “glar-ing mistakes”, etc. are not intended to curtail exten-sive powers of an appellate Court in an appeal against acquittal. Such phraseologies are more in the nature of “flourishes of language” to emphasise the reluctance of an appellate Court to interfere with acquittal than to curtail the power of the Court to review the evidence and to come to its own conclusion. (4) An appellate Court, however, must bear in mind that in case of acquittal, there is double presumption in favour of the accused. Firstly, the presumption of in-nocence available to him under the fundamental prin-ciple 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 in-nocence is further reinforced, reaffirmed and strength-ened by the trial court. (5) If two reasonable conclusions are possible on the basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
25. We find that the High Court interfered with the findings of acquittal even though the conclusion drawn by the trial court is a possible conclusion on the basis of evidence on record. We find that the prosecution has failed to prove the role of accused in causing death of the deceased Ratti Ram inasmuch as the recovery of dead body in pursuance of similar disclosure statements made by accused Satish Kumar and Rajeev Kumar is not proved. In the absence of any evidence led by the prosecution as to who fired the fatal shot, the benefit of doubt must go to the accused persons and was rightly granted by the learned trial court.
26. Consequently, we find that the order of the High Court convicting the appellants is wholly illegal, unwarranted and unjust. The conviction of the appellants for the offences punishable under Section 302 read with Section 34 IPC and Sections 25 and 27 of the Act is set aside. Accordingly, both the appeals are allowed. The order of acquittal recorded by the trial court is restored. The bail bonds shall stand discharged. All the accused be set at liberty, if not wanted in any other case. Devika Gujral Appeals allowed.