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Judgment
The present appeal takes exception to the judgment dated 3rd May, 2006, passed by the Sessions Judge, Gadchiroli in Sessions Case No.93/2002. The accused Nos.1 to 5 i.e. respondent Nos.1 to 5 herein were prosecuted for the offences punishable under Section 302 read with Section 34 of the Indian Penal Code as also under Sections 3 and 25 of the Indian Arms Act.
The case of the prosecution in short is as under :
The complainant-Shital is the daughter of one Dasaru Sukhaji Tulavi, resident of Salangtola belonging to Gond caste. The deceased her husband, namely, Krushna Sakhare was belonging to Mahar caste. Both of them were married in the year 2002. Prior to their marriage deceased Krushna was residing as a tenant in the house of one Prabhakar Tulavi at Salangtola, who is uncle of the complainant Shital. During his stay as a tenant, the deceased Krushna and the complainant Shital got acquainted with each other and ultimately fell in love, resulting in their marriage in the year 2002. They got their marriage registered at Gadchiroli which was without the consent of the father and other relatives of the complainant Shital (PW 1). After their marriage both of them started residing as a tenant at the house of one Hiraman Gawde at village Khairi, wherein the deceased Krushna started a small grocery shop in the front room of the premises. As the deceased Krushna was an intelligent person, he progressed in the grocery business and subsequently shifted his residence to the house of one Sonu Puram of Khaikri. Thereafter, also he continued his grocery shop at the house of Hiraman Gawade, wherein it was originally started. Thereafter, deceased Krushna also purchased a plot for residential plot for his shop and made construction thereon.
It is further stated by the prosecution that accused No.3 Haridas Kolhe was then Sarpanch of Gram Panchayat Khairi and was having good relations with deceased Krushna since beginning. However, one year prior to the incident i.e. on 9.7.2002, the deceased Krushna started purchasing paddy at his grocery shop. The accused No.3 Haridas Kolhe offered him to join such business, but deceased Krushna refused and told him that he may purchase paddy separately. The accused No.3, therefore, was jealous of deceased Krushna due to progress made by him and was having a grudge against him. It is further alleged by the prosecution that deceased Krushna refused to give powder for playing a game of Carrom to a boy sent by accused No.1 Haridas and, therefore, they both had quarreled over the said issue. There was also a quarrel regarding work of repairs of lake of the village which was done under the supervision of the accused No.3 as a Sarpanch of village Gram Panchayat. Furthermore, the accused No.3 was also not allowing the plot purchased by deceased Krushna to be mutated in his name and was pressurizing his landlord i.e. Hiraman Gawde not to allow deceased Krushna to continue to run grocery shop at his house. It is further alleged by the prosecution that the accused No.4 Govinda and the accused No.5 Umaji are close friends of accused No.3 Haridas. The accused No.1 Ravindra Natke, resident of Charbhatti is nearest relative of accused No.5 Umaji, while accused No.2 is the friend of accused No.1 Ravindra. It is, therefore, alleged by the prosecution that the accused No.3 Haridas, accused No.4 Govinda and accused No.5 Umaji conspired together and eliminated deceased Krushna with the help of accused No.1 Ravindra and the accused No.2 Baliram Usendi.
It is further alleged by the prosecution that on 9.7.2002 the accused No.1 Ravidra and accused No.2 Baliram went to the house of accused No.5 Umaji Pardhi at Khairi at about 10.00 p.m. and called Vishwanath Meshram (PW 2) from the grocery shop of one Gopal of village Khairi and asked about the present situation of the grocery shop of deceased Krushna. He was further asked to accompany them. Thus, Vishwanath (PW 2) took the accused No.1 Ravindra and accused No.2 Baliram in front of the house where deceased Krushna with complainant Shital were residing and gave a call to Sonu Puram(PW 3), the landlord of deceased Krushna and asked him to awake deceased Krushna Sakhare. On that, the said landlord Sonu Puram (PW 3) gave a call to deceased Krushna and told him that some persons have come to meet him. On receiving the call, complainant Shital (PW1) followed by deceased Krushna came to front door of their house wherein she saw one unknown person with Vishwanath outside the house and one third unknown person was standing at a far distance. The said unknown person who came near the door of the house asked deceased Krushna to come with them and also asked the complainant Shital to give rope and an axe. However, PW 1 Shital showed her inability to do so. Thereafter, the deceased accompanied by PW 2 Vishwanath and the said two unknown persons i.e. accused No.1 Ravindra, accused No.2 Baliram went away. Thereafter, those accused i.e. accused Nos.1 and accused No.2 took rope and axe from the house of one Someshwar Meshram (PW 4) and also asked him to accompany them.
It is further stated by the prosecution that thereafter the accused No.1 Ravindra and accused No.2 Baliram took deceased Krushna, Vishwanath (PW 2) and Someshwar Meshram (PW 4) outside the village with them on the pretext of working of fixing of bamboos. The accused Nos.1 and 2 asked the two others to wait when they reached at the field of Naktu Gaikwad. On reaching said field, the accused Nos.1 and 2 told deceased Krushna that he has spoiled a girl of Gond community and, therefore, caught both hands of deceased Krushna, tied a rope to his upper arms and then tied him to a Sag (teak) tree. Deceased Krushna was pleading with them that he has committed a mistake but he should not be killed and should be excused. However, accused No.1 Ravindra and accused No.2 Baliram tied the rope to the neck of deceased Krushna and then tied the said rope to the Sag (teak) tree. Thereafter one of the accused No.1 Ravindra and accused No.2 Baliram assaulted deceased Krushna with axe on his right eye and due to such axe stroke, the said axe got stuck into the right eye of deceased Krushna resulting in his death. Thereafter, one of the accused i.e. accused No.1 Ravindra made a fire with gun and then both of them ran away towards the tar road. On hearing the gun fire, PW 2 Vishwanath and PW 4 Someshwar Meshram also ran to their own houses in the village. The complainant Shital (PW 1) also heard the sound of fire after the accused No.1 Ravindra and accused No.2 Baliram took away the deceased with him. However, due to fear, she could not go to the side from which she heard the said sound to verify about the death of her husband.
It is further alleged by the prosecution that on the next day morning, complainant Shital asked Vishwanath about her husband. On that he told that her husband was taken away by her relatives. On search by Shital and others, the deceased was found tied to a Sag (teak) tree in the field of Naktu Gaikwad with an axe sticked into his eye and in a dead condition.
The complainant Shital, therefore, went to Police Station Kurkheda and lodged report of the above incident and the same was recorded as per Exh.-49 by Shri Bhale, Police Sub-Inspector (PW 16) and Crime bearing No.16/2002 for the offence punishable under Section 302, read with 34 of the Indian Penal Code was registered against the accused. The offence punishable under Section 302 of the Indian Penal Code being exclusively triable by the Sessions Judge, the concerned Magistrate committed the same to the Sessions Court for trial and it was registered as Sessions Case No.93/2002. The 1st Ad-hoc Additional Sessions Judge, Gadchiroli framed charge (Exh.-4) for the offence punishable under Section 302 read with 34 of the Indian Penal Code along with Sections 3 and 25 of the Indian Arms Act. Both accused Nos.1 and 2 recorded their pleas and pleaded not guilty and claimed to be tried. The prosecution examined as many as 17 witnesses to prove their case and the statements of the accused persons were recorded as per Section 313 of the Criminal Procedure Code.
The trial Court after scanning the evidence and the documents on record was pleased to acquit the accused for want of clinching evidence vide judgment dated 3.5.2006. It is this judgment which is impugned in the present appeal by the prosecution and the various grounds as stated in the appeal.
We have heard Mr. Nikhil Joshi, learned Additional Public Prosecutor for the appellant/State and Mr. Anil Mardikar learned Senior Advocate for the respondents.
Learned Additional Public Prosecutor for the appellant/ State submits that the judgment of the trial Court is perverse inasmuch as there was enough material on record to show the involvement of the accused persons in the crime. He further submits that the prosecution was successful in establishing the case beyond reasonable doubt so as to warrant conviction of the accused persons. He further submits that the trial Court has gravely erred in appreciating the evidence on record and, therefore, the judgment of the trial Court is liable to be interfered with by this Court.
Mr. Anil Mardikar, learned Senior Advocate appearing for the respondents by submitting that the scope of appeal against acquittal is very narrow states that even if second view is possible, the appellate Court should not interfere in the appeal against acquittal. To buttress his submission, the learned Senior Counsel places reliance on the judgment of the Hon’ble Apex court in the Criminal Appeal No.985/2010, Babu Sahebagouda Rudragoudar and others Vs. State of Karnataka, dated 19th April, 2024 and more particularly para 36 onwards thereof. He submits that now it is settled principle of law that the Appellate Court while adjudicating an appeal against acquittal has powers to re-appreciate the evidence but even if second view is possible, the Appellate Court would not interfere in the findings of the acquittal.
Before appreciating the controversy involved in the present appeal, it would be apropos to refer to the scope of interference by the High Court in an appeal filed by the State for challenging acquittal. As relied by the learned Senior Advocate for the respondents in Criminal Appeal No.985/2010, we are reproducing para Nos.37,38,39 and 40 as under :
37.This Court in the case of Rajesh Prasad v. State of Bihar and Another1 encapsulated the legal position covering the field after considering various earlier judgments and held as below: -
“29.After referring to a catena of judgments, this Court culled out the following general principles regarding the powers of the appellate court while dealing with an appeal against an order of acquittal in the following words: (Chandrappa case [Chandrappa v. State of Karnataka, (2007) 4 SCC 415]
“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 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.
(2)The Criminal Procedure Code, 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 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 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 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 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 basis of the evidence on record, the appellate court should not disturb the finding of acquittal recorded by the trial court.”
38.Further, in the case of H.D. Sundara & Ors. v. State of Karnataka2 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal under Section 378 of CrPC as follows: -
“8.1.The acquittal of the accused further strengthens the presumption of innocence;
8.2.The appellate court, while hearing an appeal against acquittal, is entitled to reappreciate the oral and documentary evidence;
8.3.The appellate court, while deciding an appeal against acquittal, after reappreciating the evidence, is required to consider whether the view taken by the trial court is a possible view which could have been taken on the basis of the evidence on record;
8.4.If the view taken is a possible view, the appellate court cannot overturn the order of acquittal on the ground that another view was also possible; and
8.5.The appellate court can interfere with the order of acquittal only if it comes to a finding that the only conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond a reasonable doubt and no other conclusion was possible.”
39.Thus, it is beyond the pale of doubt that the scope of interference by an appellate Court for reversing the judgment of acquittal recorded by the trial Court in favour of the accused has to be exercised within the four corners of the following principles:-
(a)That the judgment of acquittal suffers from patent perversity;
(b)That the same is based on a misreading/omission to consider material evidence on record;
(c)That no two reasonable views are possible and only the view consistent with the guilt of the accused is possible from the evidence available on record.
40.The appellate Court, in order to interfere with the judgment of acquittal would have to record pertinent findings on the above factors if it is inclined to reverse the judgment of acquittal rendered by the trial Court.”
In the conspectus of the settled principle of law as enunciated by the Hon’ble Supreme Court stated supra the controversy in the present matter has to be decided.
To prove its case, the prosecution has examined as many as 17 witnesses. As far as death of deceased Krushna being a homicidal one, it has come on record through the evidence of Shri Bhale (PW 16) at Exh.-95 and Medical Officer Ramteke (PW 9) at Exh.-66 read with post mortem report at Exh.-68, that autopsy was done by the said doctor on the dead body of the deceased Krushna on 11.7.2002 in between 12.30 to 2.00 p.m. and at that time some external and internal injuries were found on the said body. As far as external injuries are concerned there was nylon rope marks around the neck and there was iron axe with wooden rod penetrated in the right eye. The axe was removed and penetrated injury measuring about three inches in length, one inch in breadth and about 4.5 inches deep/direction resulting in fracture of frontal bone of right side was found. As far as internal injury is concerned, the skull was fractured and injury to frontal lobe of the brain was present. The evidence of Doctor Ramteke further shows that the said injuries were anti mortem in nature and were sufficient to cause death in ordinary course of nature and the cause of death was due to hemorrhagic shock and injury to brain. Thus, it is clear that the death of the deceased Krushna was a homicidal one.
The evidence led by the prosecution can be broadly divided in four parts;
the evidence of Antakala Bansod (PW 6) which is to the effect that she saw the accused No.1 Ravindra and accused No.2 Baliram coming towards to village Khairi and then going to the house of accused No.5 Umaji on 9.7.2002 during day time and thereafter going away from the village Khairi on the next day morning i.e. on 10.7.2002.
The evidence of complainant Shital (PW 1) and the alleged eye witnesses, namely, Vishwanath Meshram (PW 2) and Someshwar Meshram (PW 4) and the evidence of Sonu Puram (PW 3);
The evidence of complainant Shital (PW 1) accompanied with Dattatraya (PW 5), Ramkrushna Pada (PW 7) and Yadav Raut (PW 8) regarding the relations between deceased Krushna Sakhare, accused No.3 Haridas, accused No.4 Govinda and accused No.5 Umaj and;
Identification parade held on 27.9.2002.
Antakala Bansod, resident of Khairi, states that she saw the deceased, accused No.1 Ravindra and accused No.2 Baliram coming towards village Khairi and then going towards the house of accused No.5 Umaji on 9.7.2002 and thereafter seeing them leaving the village on the next day morning i.e. 10.7.2002 Her evidence is not challenged by the defence. Furthermore, the accused No.1, accused No.2 and accused No.5 in their statements have admitted the said fact. Therefore, it can safely be said and as has been done by the trial Court that it is established that the accused No.1 Ravindra and accused No.2 Baliram had come to the house of accused No.5 Umaji on 9.7.2002 during day time and then on the next day i.e. on 10.7.2002 they left the village Khairi.
The complainant Shital (PW 1) has deposed that Exh.-48 that during the night of 9.7.2002 at about 10.30 p.m. while she herself and her husband were sleeping at their house, Vishwanath Meshram (PW 2), Someshwar Meshram (PW 4), accused No.1 Ravindra and accused No.2 Baliram took away her husband. She has further deposed that when the above referred persons came to call her husband, they first awoke the landlord, who in turn gave a call to the deceased husband and said some persons have come to meet him. She has further deposed that said persons who took away her husband were wearing normal dresses and she has seen said persons while they took away her husband. She further states in her evidence that after some time she heard sound of firing from the side of Paroli road. However, since their was dark and she was frightened, she did not go to the said side to verify it. On the next day morning she went to house of Vishwanath and inquired about her husband, who told her that her relatives had taken away her husband but said Vishwanath told her that he is not aware about who those relatives were. She further deposed that she took search of her husband in the village but he was not found. The search was continued in area outside the village wherein deceased Krushna was found tied to a teak tree in the field of Naktu Gaikwad. She, therefore, lodged a report resulting in the investigation. She also identified the accused No.1 Ravindra and accused No.2 Baliram before the Court as the same persons, who took away her husband at the time of said incident.
In the cross-examination of PW 1 she maintained the fact that Someshwar Meshram, accused No.1 Ravindra and accused No.2 Baliram were amongst the persons who called and took her husband and said fact was stated by her while lodging the report at Exh.-49 and in the supplementary statement recorded on 11.7.2002. However, when she was asked about the omissions of the said facts in her report and the supplementary statement she has stated that she has not stated the names of the said persons at that time due to fear. In our view, the omission is material and it is difficult to accept the explanation tendered by the witness during her cross examination. It is noteworthy to mention that said witness i.e. PW 1 has admitted about she knowing the accused No.1 Ravindra prior to the incident and, therefore, what was normally expected that she should have at least named said accused No.1 in her report at Exh.-49 and also in further statement recorded by the Police. Thus, it is clear that PW 1 has given much improved version before the Court naming accused No.1 Ravindra and accused No.2 Baliram in place of two unknown persons as stated by her while lodging report at Exh.-49 immediately after the incident and also in her supplementary statement recorded on the next day of incident i.e. 11.7.2002. Her version that PW 4 Someshwar was with others when the said persons took away her husband is not even supported by all other relevant witnesses i.e. PW 2 Vishwanath, PW 3 Sonu and PW 4 Someshwar.
PW 2 Vishwanath Meshram has stated in his deposition that the accused No.1 Ravindra, accused No.2 Baliram called him from the concerned shop at about 9.15 p.m and deposed that said accused subsequently asked him to show the shop of deceased Krushna and took Krushna with them. He also stated in his examination-in-chief about the further story of the accused No.2 taking deceased Krushna and himself along with PW 4 Someshwar to the field of Naktu Gaikwad wherein the accused Nos.1 and 2 tied the deceased Krushna to a teak tree with a nylon rope and then assaulted deceased Krushna with an axe and accused No.2 Baliram holding gun and firing in air after deceased Krushna assaulted. In his cross-examination the said witness has stated that the sister of father of accused No.1 Ravindra has married with accused No.5 Umaji and their marriage took place about 8 to 10 years back. It is, however, noteworthy to mention that in his statement before the Police this witness did not name accused No.1 Ravindra and accused No.2 Baliram specifically as the persons, who took away deceased Krushna and ultimately assaulted with an axe after tying him to a teak tree with a nylon rope. He only states that both said persons who assaulted deceased Krushna were having black complexion but he denied the portion marked ‘A’ in his statement before the Police to that effect. The said portion marked ‘A’ is proved at Exh.-117. His version in the statement before the Police goes against the description of accused No.1 Ravindra as he is tall and having fair complexion. He also admits in his cross-examination that the concerned persons were wearing khaki dress of greenish color which fact is specifically denied by PW 1. In his cross-examination it is also noteworthy to mention that this witness PW 2 Vishwanath admits that the Police have beaten him during the investigation. Further suggestion regarding the depositions being made under pressure of the Police is however, denied. However, this is a relevant fact which needs to be taken into consideration.
PW 3 Sonu in his deposition has supported the prosecution about PW 4 awakening him and asking him in turn to away Krishna Sakhare. However, he further states in his examination-in-chief itself that he has not seen the said persons who were with PW 2 Vishwanath Meshram at that time. Therefore, the evidence is not trustworthy.
PW 4 Someshwar Meshram, who has deposed at Exh.-57 stated that during the concerned night at about 10.00 p.m. his mother told him that somebody was unwinding the rope of their bullock-cart. Thereafter, he came out of the house and the said persons were Krushna accompanied by two unknown persons, one of whom was of small height and he was having a gun with him and the said other unknown persons were having axe and rope with him. The said two unknown persons asking the witness to accompany them. All of them went upto the field of Naktu Gaikwad and thereafter the said two unknown persons asked them to stop there and warned them not to run away. Thereafter, one unknown person having good height caught hold of Krushna and tied him to a teak tree with rope. The said Krushna was pleading with them to excuse him, however, one of the said unknown persons, who was having gun stated that since he has cheated the girl of Gond, therefore, they will not excuse him. It is further stated by the witness that the said unknown person who was having good height and was having axe with him gave stroke of axe on chest of Krushna and on his head and the same persons gave one blow with blade portion on the right eye of Krushna. Thereafter, said unknown persons having good height ran away. He has identified the said unknown person accused No.2 before the Court as the said unknown person with short height who was having a gun and the accused No.1 Ravindra before the Court as the same unknown person with good height who was holding the axe.
This witness in his cross-examination admitted that the sister of father of the accused No.1 Ravindra is the wife of accused No.5 Umaji, resident of Khairi. It is thus clear that accused No.1 Ravindra prior to the incident was known to the witness and, therefore, it was expected of him to name the said accused at least in his Police statement recorded by the Police on 11.7.2002. However in his statement he has not done so and stated that two unknown persons took away Krushna Sakhare and then one of them has assaulted him with an axe. This fact creats doubt as to veracity of the statement of this witness and his alleged presence at the time of the said incident. It is further admitted in his cross-examination that after the said incident Police have interrogated him, PW 2 Vishwanath, PW 1 Shital and the accused persons at the Police Station by calling them at about 9-10 times upto 25.7.2002. If it was so, he must have seen the accused No.1 Ravindra and accused No.2 Baliram while Police interrogated them in the Police Station and, therefore, identification of the said accused persons by this witness in the identification parade held on 27.9.2002 i.e. about two and half months after the incident is of no use. The samething can be said in respect of alleged identification of accused No.1 Ravindra and accused No.2 Baliram by complainant Shital and Vishwanath (PW2) in the said identification parade held on 27.9.2002. It is also pertinent to mention that both the accused Vishwanath Meshram (PW 2) and Someshwar Meshram (PW 4) has admitted in the cross-examination that they were beaten by the Police while they were being called to the Police Station for interrogation. This fact also creates a doubt about the veracity regarding the truthfulness of the statements made by these witnesses.
As far as role of the other accused is concerned, the complainant Shital (PW 1), who deposed at Exh.-48 in respect of accused No.3 Haridas stated that he was not paying wages of one day to the deceased Krishna for the work of digging clay of tank. He was asking proprietor of the shop not to sell kerosene to deceased Krushna; quarreling with and stating him that he should not reside in the said village after her husband did not give powder to a person sent by him for playing carrom. However, all these facts are omissions in her report at Exh.-49 and statement recorded on 11.7.2002. The other witnesses i.e. PW 5, PW 7 and PW 8, who are the witnesses in respect of alleged enmity between accused No.3 Haridas and deceased Krushna have not fully supported the prosecution and, therefore, were declared hostile. In their cross-examination even though these witnesses have admitted about the enmity, such dispute was not of such volume as to encourage a person to conspire and execute a plan to murder a person.
PW 1 Shital admitted that her relatives were opposed to the marriage with deceased Krushna, he being of other caste. She has, however, denied the suggestion to the effect that she was suspecting that her relatives took revenge of her marriage by committing murder of her husband. It is also pertinent to note that as per the version of PW 1 Shital on the next day when she went to Vishwanath (PW 2) to inquire about her husband, the said Vishwanath (PW 2) told her that her relatives have taken away her husband. However, curiously no explanation has come on record from Vishwanath (PW 2) as to why he has stated so to complainant at that time. If such evidence, read with various suggestions is considered together it creates a doubt regarding the evidence of complainant (PW 1), Vishwanath (PW 2), Someshwar Meshram (PW 4) about the identity of the accused No.1 Ravindra and accused No.2 Baliram at the time of said incident. The appearances as stated by these witnesses the clothes/dresses which they were wearing at the time of the alleged incident are contradictory in nature and are not corroborative. Therefore, in our view reasonable doubt arises showing possibility of the concerned persons being the relatives of complainant Shital and as also the identity of the accused Nos.1 and 2. In that view the accused persons are entitled for benefit of doubt. It has come in the evidence of PW 1 Shital in her cross-examination at Exh.-48 that the Police persons were present in the said place when the accused were made to stand in line. Thus, apart from the delay, the test identification parade lacks in reliability.
In that view of the matter the alleged identification of the accused No.1 Ravindra and accused No.2 Baliram by the complainant Shital, Vishwanath and Someshwar Meshram is of no use to the prosecution. The law regarding test identification parade is explained in detail by the Hon’ble Apex Court in Criminal Appeal No.1864-1865 of 2010, Gireesan Nair and others etc. Vs. State of Kerala. Taking review of the entire case law in the subject, the Hon’ble Apex Court in para 46 and 47 observed as under :
46.Re: Delay in conducting the TIP: Undue delay in conducting a TIP has a serious bearing on the credibility of the identification process. Though there is no fixed timeline within which the TIP must be conducted and the consequence of the delay would depend upon the facts and circumstances of the case, it is imperative to hold the TIP at the earliest. The possibility of the TIP witnesses seeing the accused is sufficient to cast doubt about their credibility. The following decisions of this Court on the consequence of delay in conducting TIP have emphasised that the possibility of witnesses seeing the accused by itself can be a decisive factor for rejecting the TIP. In Suresh Chandra Bahri Vs. State of Bihar, it was held that:
“It is a matter of great importance both for the investigating agency and for the accused and a fortiori for the proper administration of justice that such identification is held without avoidable and unreasonable delay after the arrest of the accused and that all the necessary precautions and safeguards were effectively taken so that the investigation proceeds on correct lines for punishing the real culprit. It is in adopting this course alone that justice and fair play can be assured both to the accused as well as to the prosecution. But the position may be different when the accused or a culprit who stands trial had been seen not once but for quite a number of times at different point of time and places which fact may do away with the necessity of a TIP.”
47.In Budhsen & Anr. Vs. State of UP, this Court set aside the conviction imposed on the appellant therein, on the ground that no conviction can be based by solely relying on the identification made in a TIP. While holding that a 14-day delay by itself in conducting the TIP may not cause prejudice to the accused, it observed that there is a high chance of accused being seen by the identifying witnesses outside the jail premises. In Subash and Shiv Shankar v. State of U.P., this Court acquitted an accused on the ground that the TIP was held three weeks after the arrest was made. This Court suspected that the delay in holding the TIP could have enabled the identifying witnesses to see the accused therein in the police lockup or in the jail premises. In State of A.P. v. Dr M.V. Ramana Reddy and Ors., this Court acquitted respondent nos. 2 and 3 therein on the ground that there was a delay of 10 days in conducting the TIP, and in those 10 days, there was a high likelihood of their photographs being shown to the witnesses. In Rajesh Govind Jagesha v. State of Maharashtra, a delay of about one month was viewed seriously by this Court since there was a possibility of the accused being shown to the witnesses.”
Furthermore, as far as identification parade is concerned, admittedly it was held after about two and half months after the incident. During such period the accused No.1 Ravindra and and accused No.2 Baliram were being interrogated by the Police along with other witnesses who identified the said accused in the identification period after about 8 to 10 days after the incident. Moreover, it can be seen that though the accused No.1 Ravindra is a person having good height and fair complexion and accused No.2 Baliram is a short person with a black complexion, both of them were made to stand in one identification parade and this fact also vitiates the said parade.
Furthermore, as regards recording of statement of material witnesses by the Magistrate under Section 164 is concerned, the prosecution has not examined concerned Magistrate and PW 2 and PW 4 have admitted in their cross-examination that it was the clerk who recorded such statements. Thus, the evidence led by the prosecution in our view was not reliable and trustworthy so as to point to the guilt of the accused.
As stated supra, the scope of interference in appeal against acquittal is very narrow and the acquittal of the accused by the trial Court strengthens the presumption of innocence which is in their favour. Even though the Appellate Court is entitled to re-appreciate the oral and documentary evidence, the said Court can interfere only when the findings reached by the trial Court are not possible to be reached by a prudent person on the basis of the evidence taken on record. It is only in such situation the Appellate Court can interfere in the appellate jurisdiction. Even if as per the Appellate Court another view is possible that can not be an aspect for the Appellate Court to overturn the order of acquittal. It is only when the Appellate Court reaches to a finding that the sole conclusion which can be recorded on the basis of the evidence on record was that the guilt of the accused was proved beyond reasonable doubt and no other conclusions possible, then only interference can be done by the Appellate Court.
As stated supra, the view taken by the Appellate court is a plausible and possible view and it is the only view which could have been taken by the Court on the basis of evidence material on record. Even, in our opinion as discussed above, the evidence led in support of the case of the prosecution is not sufficient to point to the guilt of the accused.
In that view of the matter, we pass the following order.
O R D E R
The appeal is dismissed.