Tulip Kanth

New Delhi, April 23, 2022: The Supreme Court has held that 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 while dealing with an appeal against acquittal by invoking Section 378 of the CrPC.

The Division Bench of Justice Sanjay Kishan Kaul and Justice M.M.Sundresh said, “…an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the Appellate Court has to be relatively slow in reversing the order of the Trial Court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters”

Convictions confirmed and acquittals reversed at the hands of the Division Bench of the High Court of Kerela were under challenge before the Top Court. The accused, who got their acquittal confirmed, stood as freemen with no further challenge.

In this case, 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 political members of CPI (M) and NDF on July 17,2002 with the deceased and eighth Prosecution Witness(PW) being the CPI(M) members, and third and tenth accused being that of NDF. In the altercation the deceased had reportedly assaulted the third accused.

Seeking to avenge, the accused, being 16 in numbers, assembled at the family house of fifth accused A-5 on the same day and hatched a conspiracy to take out the life of the deceased. In pursuance to the aforesaid decision, the accused went to the residence of the deceased on and indiscriminately attacked the deceased. In the process, they also exploded country bombs on two occasions.

Thereafter, an FIR was registered under Sections 143, 147, 148, 427, 452, 302 read with 149 of the Indian Penal Code and Section 3 of the Explosives Substances Act.When the legal battle began , the Additional District and Sessions Judge, Court I, Kollam, while acquitting Tenth to sixteenth accused, convicted the others.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 second, fourth, fifth, eighth and ninth accused for offences under Sections 460, 148, 302 read with 149 IPC and further convicted them 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 fourteenth to sixteenth accused(A-14 to A-16) was dismissed while it was accordingly allowed by overturning the acquittal of tenth to thirteenth accused(A-10 to A-13).

One of  the issues raised in this case was of delay in sending the (FIR) First Information Report to the Magistrate. Regarding this, the Bench held that that 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 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, the Bench noted that a mere delay by itself cannot be a sole factor in rejecting the prosecutions 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.

Affirming that the Investigating Officer is expected to kick start his investigation immediately after registration of a cognizable offense, the Benh noticed that 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.

The Top Court asserted, “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.”

Referring to the present case, the Bench held that the investigation report is expected to be sent to the jurisdictional Magistrate at the earliest. A long, unexplained delay, would give room for suspicion.

The Bench dealt with the issue of Recovery under Section 27 of the Evidence Act, by observin that Section 27 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 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 was noticed by the Bench that  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 the Courts 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 witnesss credibility and the other evidence produced when dealing with a recovery under Section 27 of the Evidence Act.

On the merits of the case , the Court affirmed that the occurrence happened at night and the FIR reached on the next day evening. Perhaps 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 had considered this aspect, and the Top Court did not find any material to hold that the delay was  willful and deliberate to the extent of creating any suspicion.

Also, the Bench found that that nothing had been elicited from the eye-witnesses insofar as the aforesaid accused were concerned to impeach through their evidence. Merely because the witnesses are family members apart from being chance witnesses, their testimonies cannot be rejected. 

The Division Bench found a structured pattern in the recovery of  A-10 to A- 13. There appeared 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 one of the witnesses, having no connection with A-10. The fallacious notion that the recovery of an incriminating article was made from a place that might also be accessible to that witness was also one of the doubts. This further raised the question on the credibility of the prosecution case.

Thus, the Bench allowed the appeals filed by accused- A-10 to A-13 by setting aside the judgment rendered by the High Court and restoring the acquittal rendered by the Trial Court. 

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