We have considered the rival submissions and perused the record. At the outset, we may observe that no doubt the judgment and order
of the High Court appears a bit cryptic but that by itself need not
be a ground for us to set aside the order and remit the matter to
the High Court, particularly, when we have the relevant record to assess
the merit of the prosecution case. 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 the100 matter to the High Court only to
rewrite the judgment, it would be travesty of justice. Consequently,
as the trial120 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 there
has been a miscarriage of justice by not granting leave to appeal
against the judgment of the trial court.
It is trite law that in an appeal against acquittal,
the power of the appellate court to reappreciate evidence and come to
its own conclusion is200 not circumscribed by any limitation. But it is equally
settled that the appellate court must not interfere with an order of acquittal
merely because a contrary view is permissible, particularly, where the view
taken by the trial court is a240 plausible view based on proper appreciation of
evidence and is not vitiated by ignorance or misreading of
relevant evidence on record. In the instant case, the
prosecution case rested on ocular account as well as on
certain circumstances. The ocular account is provided by PW3, PW6 and PW15.
PW3 and PW6 were traveling with the deceased, though on a separate300 scooter. They, therefore, had the
opportunity to witness the incident. According to them, while they were
travelling on their respective scooters, torch light was flashed at them by men
in police uniform. As a result, the deceased was temporarily
blinded and his scooter skidded. Thereafter, when gun shots were fired, they
escaped and came to the village. On information, a360 large number of persons
from the village arrived at the spot. What is important is that neither
PW3 nor PW6 could identify any of the three accused. They did not depose that
the three policemen involved in the crime were400 those who were facing trial. Thus,
there is no infirmity, much less perversity, in the view
taken by the trial court that the testimony of PW3 and PW6 is not of
much help to the prosecution qua the three
accused facing trial. With regard to the testimony of PW15, detailed reasons have been recorded by the
trial court to hold him unreliable and unworthy of credit.
Moreover, PW15's presence is not confirmed by PW3 and PW6. Otherwise also,
PW15's conduct480 of remaining silent for over a week creates a lingering
doubt in our mind as to whether he is a500 witness set up on advice, particularly, when we notice that 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 noticed all these facts as also that PW15 was
lying when he stated that he went alone to get the affidavit prepared.
The trial court also noticed that all the three affidavits were prepared on
stamp papers, consecutively numbered, bought from the same vendor and
the affidavits were sworn in quick succession giving rise to a definite
conclusion that they were prepared600 by an advocate. The trial court also noticed that the conduct of
PW15 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 and640 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, if the trial court discarded the
testimony of PW15, in our view, the same was justified.
Adverting to700 the proven circumstances, what
transpires is that the witnesses are consistent that there was a
police action on that fateful720 night. Assuming that it is true that in the night there
was an exchange of fire between men in uniform and members of the
public, but there is no reliable evidence that the exchange of
fire was with a view to kill. Moreover, the deceased did not die of a rifle
bullet injury. Rather, he died from a .12 bore gunshot which could not be
ascribed to rifles issued to the accused persons. Therefore, even if
empties of rifle cartridges800 relatable to service rifles issued to the accused were
found at the spot, culpability of the accused persons in causing death
of the deceased is not inferable.
Further, there is
no recovery of a .12 bore gun from any of840 the accused persons facing trial. Notably, after the incident,
villagers gathered at the scene of crime. The police arrived at the spot and
took the injured to the hospital. According to the prosecution evidence,
the accused persons were present at the spot during this period. Therefore,
if they were really involved, they could have been identified by
either PW3 or900 PW6, but there was no such event. Further, the continued presence
of the accused at the spot is a circumstance which goes in favour of
the accused, being a conduct that belies a guilty mind. Another circumstance which goes in favour of the accused is
that, according to the prosecution's own case, the accused persons,
three in number, had a960 rifle each with 50 rounds. Admittedly, some of the empty cartridges
found at the spot were not fired from the rifle issued to the accused. This is
evident from the ballistic report. This is indicative
of presence of some other1000 rifle also. The prosecution evidence is silent on whose rifle it
was. Moreover, if the accused were to use their rifle to fire shots, why would
they use a country-made pistol to inflict injury to the deceased. The circumstance that the accused persons were required to patrol
that area and had left the police station for that end on that fateful night is
a circumstance which is not so conclusive as to turn the tables on the
accused, inasmuch as1080 the patrolling area covered two villages. It may be possible
that the accused arrived at the spot late, when the1000 incident had already taken place,
and to chase away the miscreants, fired shots from their service rifles.
Be that as it may,
once the ocular account of PW15 stood discarded, to clinch a conviction
on the basis of circumstances, the circumstances ought to have formed a
chain so far complete as to indicate that in all probability it was
the persons facing trial and none else who committed the crime. Here the proven
circumstances do not constitute a chain so far complete as to indicate that
in all human probability it was the accused persons and no one else who1200 committed the crime.
