Supreme Court Reiterates Principles To Be Adhered By Appellate Court While Reversing Acquittal

 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: {Para 42}

(1) An appellate court has full power to review, reappreciate 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 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 and Ors. v. State of Karnataka MANU/SC/1058/2023 : 2023:INSC:858 : (2023) 9 SCC 581 this Court summarized the principles governing the exercise of appellate jurisdiction while dealing with an appeal against acquittal Under Section 378 of Code of Criminal Procedure 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 SUPREME COURT OF INDIA

Criminal Appeal No. 985 of 2010

Decided On: 19.04.2024

Babu Sahebagouda Rudragoudar and Ors. Vs. State of Karnataka

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0329/2024.

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Supreme Court: To Prove S.27 Evidence Act Statement, Investigating Officer Must Narrate What Accused Stated; Merely Exhibiting Memorandum Not Enough

Similar view was taken by this Court in the case of Ramanand @ Nandlal Bharti v. State of Uttar Pradesh MANU/SC/1324/2022 : 2022:INSC:1075, wherein this Court held that mere exhibiting of memorandum prepared by the Investigating Officer during investigation cannot tantamount to proof of its contents. While testifying on oath, the Investigating Officer would be required to narrate the sequence of events which transpired leading to the recording of the disclosure statement. {Para 65}

66. If we peruse the extracted part of the evidence of the Investigating Officer(PW-27)(reproduced supra), in the backdrop of the above exposition of law laid down by this Court, the interrogation memos of the Accused A-2(Exhibit P-15) and A-1 (Exhibit P-16), it is clear that the Investigating Officer(PW-27) gave no description at all of the conversation which had transpired between himself and the Accused which was recorded in the disclosure statements. Thus, these disclosure statements cannot be read in evidence and the recoveries made in furtherance thereof are non est in the eyes of law.

67. The Investigating Officer(PW-27) also stated that in furtherance of the voluntary statements of Accused(A-1 and A-2), he recovered and seized two axes and one koyta produced by A-1 in the field of Ansari and one jambiya produced by A-2. The Investigating Officer(PW-27) nowhere stated in his deposition that the disclosure statement of the Accused resulted into the discovery of these weapons pursuant to being pointed out by the Accused.

68. The Investigating Officer(PW-27) further stated that he arrested Accused A-3, recorded his voluntary statement and seized two sickles. However, neither the so called voluntary statement nor the seizure memo were proved by the Investigating Officer(PW-27) in his evidence.

69. Thus, we are of the firm opinion that neither the disclosure memos were proved in accordance with law nor the recovery of the weapons from open spaces inspire confidence and were wrongly relied upon by the High Court as incriminating material so as to reverse the finding of the acquittal recorded by the trial Court.

 IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 985 of 2010

Decided On: 19.04.2024

Babu Sahebagouda Rudragoudar and Ors. Vs. State of Karnataka

Hon'ble Judges/Coram:

B.R. Gavai and Sandeep Mehta, JJ.

Author: Sandeep Mehta, J.

Citation:  MANU/SC/0329/2024.

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Whether the court can rely on call details of mobile used in crime if prosecution fails to prove connection between owner of that Sim and custody of accused of that SIM?

  As regards the call data and the ransom calls, we may note that Santosh Jadhav, Assistant Nodal Officer, Reliance Communication, was examined as PW-17 and spoke of the call data of mobile number 8305620342 from which the ransom calls were made. According to him, the SIM card with the said mobile number was given to one Bhuraji, son of Deepu, whose address was House No. 433, Sanjay Gandhi Ward, Tehsil Jabalpur. He produced Bhuraji's 'Customer Application Form' along with his attached Election ID card. These documents were marked as Ex. D6. The call data of 28.03.2013 showed that this SIM card was used on the mobile handset with IMEI No. 358327028551270. He marked in evidence Ex. P35 in that regard. Therefore, the mobile number from which ransom calls were made was in the name of one Bhuraji, s/o. Deepu, and his address was available. However, the police did not even attempt to contact Bhuraji or examine him to find out how and why his SIM card was used for making the ransom calls. Even more startling is the fact that, though PW-17 placed on record actual proof of the allotment of this mobile number to Bhuraji (Ex. D6), no such steps were taken by the police to establish the link between Om Prakash Yadav and mobile number 9993135127, which was attributed to him. PW-15 baldly stated that the said mobile number was allotted to Om Prakash Yadav but did not mark in evidence any document in proof thereof. Surprisingly, he had stated in his deposition that he had brought the certified copy of the application form and the ID used when this SIM card was allotted to the subscriber, Om Prakash Yadav, but the same were not marked. In effect, no palpable connection is established between the said mobile number and Om Prakash Yadav. In the absence of such a tangible link, the call data report (Ex. P31) and the contents thereof are practically useless in establishing the prosecution's case that the ransom calls were made from Om Prakash Yadav's mobile phone handset by inserting Bhuraji's SIM card, with mobile number 8305620342, therein.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

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Supreme court lays down requirements of valid panchnama as per S 100 of CRPC

  In Yakub Abdul Razak Memon v. State of Maharashtra through CBI, Bombay MANU/SC/0268/2013 : (2013) 13 SCC 1, this Court noted that the primary intention behind the 'panchnama' is to guard against possible tricks and unfair dealings on the part of the officers entrusted with the execution of the search and also to ensure that anything incriminating which may be said to have been found in the premises searched was really found there and was not introduced or planted by the officers of the search party. It was further noted that the legislative intent was to control and check these malpractices of the officers, by making the presence of independent and respectable persons compulsory for search of a place and seizure of an article. It was pointed out that a panchnama can be used as corroborative evidence in the Court when the respectable person who is a witness thereto gives evidence in the Court of law Under Section 157 of the Evidence Act. This Court noted that Section 100(4) to Section 100(8) Code of Criminal Procedure stipulate the procedure with regard to search in the presence of two or more respectable and independent persons, preferably from the same locality, so as to build confidence and a feeling of safety and security amongst the public. The following mandatory conditions were culled out from Section 100 Code of Criminal Procedure for the purposes of a valid panchnama:

(a) All the necessary steps for personal search of officer (Inspecting officer) and panch witnesses should be taken to create confidence in the mind of court as nothing is implanted and true search has been made and things seized were found real.

(b) Search proceedings should be recorded by the I.O. or some other person under the supervision of the panch witnesses.

(c) All the proceedings of the search should be recorded very clearly stating the identity of the place to be searched, all the spaces which are searched and descriptions of all the articles seized, and also, if any sample has been drawn for analysis purpose that should also be stated clearly in the Panchanama.

(d) The I.O. can take the assistance of his subordinates for search of places. If any superior officers are present, they should also sign the Panchanama after the signature of the main I.O.

(e) Place, Name of the police station, Officer rank (I.O.), full particulars of panch witnesses and the time of commencing and ending must be mentioned in the Panchnama.

(f) The panchnama should be attested by the panch witnesses as well as by the concerned IO.

(g) Any overwriting, corrections, and errors in the Panchnama should be attested by the witnesses.

(h) If a search is conducted without warrant of court Under Section 165 of the Code, the I.O. must record reasons and a search memo should be issued.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

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Whether Panchnama is admissible In Court Where Witnesses Merely Acted As Attestors And Did Not Disclose How Objects Were Discovered?

  Witnesses to the panchnamas and the seizures acted as mere attestors to the documents and did not disclose in their own words as to how these objects were discovered, i.e., at whose instance and how. Ergo, no lawful validity attaches to these proceedings recorded by the police in the context of collection of all this evidence.

IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

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Whether the court can rely on discovery at the instance of accused if it was done when he was not accused of any offence and he was not in police custody?

 In the case on hand, though Rajesh Yadav was taken to the police station, be it on 29.03.2013 or even earlier, he could not be said to be in 'police custody' till he was arrested at 18:30 hours on 29.03.2013, as he did not figure as an 'Accused' in the FIR and was not 'Accused of any offence' till his arrest. Therefore, it was his arrest which resulted in actual 'police custody', and the confession made by him, before such arrest and prior to his being 'Accused of any offence', would be directly hit by Section 26 of the Evidence Act and there is no possibility of applying the exception Under Section 27 to any information given by him in the course of such confession, even if it may have led to the discovery of any fact. In consequence, the purported discovery of the dead body, the murder weapon and the other material objects, even if it was at the behest of Rajesh Yadav, cannot be proved against him, as he was not 'Accused of any offence' and was not in 'police custody' at the point of time he allegedly made a confession. {Para 27}

 IN THE SUPREME COURT OF INDIA

Criminal Appeal Nos. 793-794 of 2022 and 795 of 2022

Decided On: 21.09.2023

 Rajesh and Ors. Vs. The State of Madhya Pradesh

Hon'ble Judges/Coram:

B.R. Gavai, J.B. Pardiwala and P.V. Sanjay Kumar, JJ.

Author: P.V. Sanjay Kumar, J.

Citation: : MANU/SC/1040/2023.

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Whether court can convict accused based on his disclosure statement if recovery from him is not unimpeachable?

  The short question that falls for our consideration thus is whether the conviction of the Appellant on the strength of the purported disclosure statement (Ex. PD) and the recovery memo (Ex. PD/2), in the absence of any corroborative evidence, can sustain? { Para 15}

16. We have implored ourselves with abounding pronouncements of this Court on this point. It may be true that at times the Court can convict an accused exclusively on the basis of his disclosure statement and the resultant recovery of inculpatory material. However, in order to sustain the guilt of such accused, the recovery should be unimpeachable and not be shrouded with elements of doubt. Vijay Thakur vs. State of Himachal Pradesh, (2014) 14 SCC 609 We may hasten to add that circumstances such as (i) the period of interval between the malfeasance and the disclosure; (ii) commonality of the recovered object and its availability in the market; (iii) nature of the object and its relevance to the crime; (iv) ease of transferability of the object; (v) the testimony and trustworthiness of the attesting witness before the Court and/or other like factors, are weighty considerations that aid in gauging the intrinsic evidentiary value and credibility of the recovery. (See: Tulsiram Kanu vs. The State, AIR 1954 SC 1; Pancho vs. State of Haryana, (2011) 10 SCC 165. ; State of Rajasthan vs. Talevar & Anr., (2011) 11 SCC 666 and Bharama Parasram Kudhachkar vs. State of Karnataka, (2014) 14 SCC 431)

17. Incontrovertibly, where the prosecution fails to inspire confidence in the manner and/or contents of the recovery with regard to its nexus to the alleged offence, the Court ought to stretch the benefit of doubt to the accused. 

19. Unmindful of these age­old parameters, we find that the Prosecution in the present case has miserably failed to bring home the guilt of the Appellant and Courts below have been unwittingly swayed by irrelevant considerations, such as the rise in the incidents of dacoity. In its desire to hold a heavy hand over such derelictions, the Trial Court and the High Court have hastened to shift the burden on the Appellant to elucidate how he bechanced to be in possession of the incriminating articles, without primarily scrutinizing the credibility and admissibility of the recovery as well as its linkage to the misconduct. We say so for the following reasons:

Firstly, the High Court and the Trial Court failed to take into consideration that the testimony of ASI Rajinder Kumar (PW­14) exhibited no substantial effort made by the police for conducting the search of the residence of the Appellant in the presence of local witnesses. The only independent witness to the recovery was Raldu (PW­8) who was admittedly a companion of the Complainant.
Secondly, the Complainant (PW­4) as well as Raldu (PW­8), have unambiguously refuted that neither the passbook, nor the ‘red cloth’ was recovered from the possession of the Appellant, as claimed in his disclosure statement.
Thirdly, while the Complainant (PW­4) negated his signatures on the recovery memo (EX. PD/2), on the other hand, Raldu (PW­8) also neither enumerated the recovery memo (Ex. PD/2) in the catalogue of exhibited documents, nor did that he affirm to having his endorsement.
Fourthly, the recovered articles are common place objects such as money which can be easily transferred from one hand to another and the ‘red cloth’ with ‘Kamla’ embossed on it, as has been acceded by the Investigating Officer, Rajinder Kumar (PW­14), can also be easily available in market.
Fifthly, the recovery took place nearly a month after the commission of the alleged offence. We find it incredulous, that the Appellant during the entire time period kept both the red cloth and the passbook in his custody, along with the money he allegedly robbed off the Complainant.
Sixthly and finally, there is no other evidence on record which even remotely points towards the iniquity of the Appellant.

Supreme Court

CHIEF JUSTICE OF INDIA N.V. RAMANA JUSTICE SURYA KANT JUSTICE HIMA KOHLI

Bijender @ Mandar Vs. State of Haryana

CRIMINAL APPEAL NO. 2438 OF 2010

8th November 2021

Author: Surya Kant, J.

Citation: 2021 ALL SCR (ONLINE) 632

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Whether disclosure statement of accused U/S 27 of evidence Act can be relied on if it does not bear signature of accused?

So far as the conscious possession of the weapon Ex. M/O/4 is concerned, the disclosure statement, Ex. P-9 inspires no confidence. Firstly because none of the two panch witnesses, Yash Pal and Sukhdev Singh, ASI, have been examined at the trial and secondly because the disclosure statement does not bear the signatures or the thumb impression of the appellant. Even, the recovery memo of the revolver and the cartridges, Ex. P-9/A, which is also attested by Yash Pal and Sukhdev Singh, ASI does not bear either the signatures or the thumb impression of the accused. The absence of the signatures or the thumb impression of an accused on the disclosure statement recorded under Section 27 of the Evidence Act detracts materially from the authenticity and the reliability of the disclosure statement. 

IN THE SUPREME COURT OF INDIA

Criminal Appeal No. 472 of 1985

Decided On: 20.04.1995

Jaskaran Singh Vs.  The State of Punjab

Hon'ble Judges/Coram:

Dr. A.S. Anand and M.K. Mukherjee, JJ.

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