IN CRI.A. 413 OF 2013- SC- Appelate Court must not interfere with order of acquittal merely because a contrary view was permissible, particularly where the view taken by Trial Court was a plausible view based on proper appreciation of evidence and was not vitiated by ignorance/misreading of relevant evidence on record: Supreme Court
Justice B.V. Nagarathna and Justice Manoj Misra [17-07-2023]

Read More: Central Bureau of Investigation v Shyam Bihari

Simran Singh

New Delhi, July 18, 2023: The Supreme Court, while upholding a judgement passed by the Uttarakhand High Court in the case of an alleged murder that took place over 35 years ago, concluded that the prosecution had failed to prove the guilt of the persons accused of murder beyond reasonable doubt, warranting their acquittal.

The Division Bench comprising of Justice B.V. Nagarathna and Justice Manoj Misra stated that even though the order of the High Court appeared to be a bit cryptic but that by itself was not a ground to set aside the order and remit it back to the High Court.

“More so, because the incident is of the year 1987 and the appeal has remained pending since more than a decade. In such circumstances, if we remit the matter to the High Court only to rewrite the judgment, it would be travesty of justice. Consequently, as the trial court has dealt with the matter at great length and has discussed each and every piece of evidence on which the prosecution seeks to rely, it would be apposite for us to assess whether, by not granting leave to appeal against the judgment of the trial court, there has been a miscarriage of justice.”

The Bench sated that it was a trite law that in an appeal against the acquittal, the power of the appellate court to re-appreciate evidence and come to its own conclusion was not circumscribed by any limitation. But it was equally settled that the appellate court must not interfere with an order of acquittal merely because a contrary view was permissible, particularly, where the view taken by the Trial Court was a plausible view based on proper appreciation of evidence and was not vitiated by ignorance/misreading of relevant evidence on record.

The Bench noted that the prosecution case rested on ocular account as well as on certain circumstances. The ocular account was provided by PW-3, PW-6 and PW-15 who did not depose that the three policemen involved in the crime were those who were facing Trial. Thus, there was no infirmity, much less perversity, in the view taken by the Trial Court that the testimony of PW-3 and PW-6 was not of much help to the prosecution qua the three accused facing Trial.

With regard to the testimony of PW-15, the Bench stated that detailed reasons had been recorded by the Trial Court to hold him unreliable and unworthy of credit. Moreover, PW15’s presence was not confirmed by PW3 and PW6. Otherwise also, PW15’s conduct of remaining silent for over a week created a lingering doubt as to whether he was a witness set up on advise, particularly, when his first statement was not to the investigating agency but made on an affidavit prepared by a lawyer, who simultaneously prepared three affidavits identically worded. “The Trial Court also noticed that the conduct of PW- 15 was a bit unusual in the sense that he made no disclosure to anyone including the father of the deceased yet, he straightaway went to swear and dispatch an affidavit by post to a higher officer of the police even though, by that time, the investigation had been transferred to the CB-CID from the local police and, therefore, there was no threat from the local police. In these circumstances, the Bench stated that if the Trial Court discarded the testimony of PW-15, the same was justified.”

The Bench did not find the present case to be a fit case to interfere with the order passed by the High Court and remit the matter only for the High Court to rewrite the judgment as the same, as it would have been an exercise in futility and accordingly the appeal was dismissed.

In the matter at hand, the criminal appeal was filed by the Central Bureau of Investigation against the acquittal of three accused persons by the High Court of Uttarakhand. 

The case related to the killing of one deceased in 1987 wherein two FIRs were initially registered by the local police, but the investigation was later handed over to the CBI wherein a chargesheet against the accused persons under Section 302 read with Section 34 of the Indian Penal Code, 1860 (IPC) was registered and the Sessions Judge took cognizance of Section 302 read with Section 32 of IPC.

The prosecution's case rested on the eyewitness accounts of three witnesses - PW3, PW6 and PW15. It was alleged by PW3 and PW6 that they were on one scooter and the deceased was on another scooter while they were travelling to Meerapur when they saw three policemen standing on the road. One of them had a Danda (stick) whereas the other two were carrying rifles. The person who had the Danda flashed a torch light on them. As a result, they lost control of their respective scooters, which skidded and fell. One of the policemen exhorted to shoot to kill. In consequence, shots were fired hitting the deceased, who collapsed at the spot. PW-3 and PW-6, however, managed to escape to the village.

However, PW3 and PW6 could not identify the accused persons as the ones who killed the deceased. PW15's testimony was found unreliable by the Trial Court. Some empty cartridge shells recovered from the spot matched the service rifles of the accused but the autopsy reports showed that the deceased died from a .12 bore weapon, not a rifle bullet.

The High Court had dismissed the appeal filed by the CBI against the acquittal, noting that granting leave to appeal would be an exercise in futility given the unreliable eyewitness testimony and medical evidence.