PREM SINGHversusSTATE OF HARYANA

                      [2013] 10 S.C.R. 51


                         PREM SINGH                                  A
                               v.
                    STATE OF HARYANA
             (Criminal Appeal No. 925 of 2009)
                    SEPTEMBER 2, 2013
                                                                     B
  (P. SATHASIVAM, CJI, RANJANA PRAKASH DESAI
             AND RANJAN GOGOi, JJ.]

     Penal Code, 1860 - ss. 302134 - Prosecution under -
Acquittal by trial court - Conviction by High -Court - On            C
Appeal, held: High Court reversed the acquittal order entirely
on the basis of evidence of two eye-witnesses, without
considering inherent lacunae in their evidence - High Court
failed to test the prosecution case in the totality of the facts -
Conclusion reached by the trial court was reasonable and             o
possible conclusion - Hence, accused entitled to acquittal.

    Code of Criminal Procedure, 1973 - s. 378 - Appeal
against acquittal - Power of High Court - Held: So long as
the view taken by the trial court was a possible view, High
Court ought not to disturb the findings of trial court.              E

     Appellant-accused alongwith six others, was
charged u/ss.120-B, 148 and 302 r/w.s.149 IPC and u/s.25
of Arms Act, 1959. Trial court in view of non-examination
of a prime witness, inherent lacunae in the evidence of              F
the two eye-witnesses, suspicion about recovery of
firearms etc., acquitted all the accused of all the charges.
High Court, in appeal of the State, reversed the acquittal
order as regards the appellant-accused and another co-
accused and convicted them uls. 302 r/w. s.34 IPC.                   G
Hence, the present appeal.

     Allowing the appeal, the Court

     HELD: 1.1. There are certain parameters within which
                            51                                       H
    52      SUPREME COURT REPORTS              [2013] 10 S.C.R.


A   the High Court is required to exercise its powers under
    Section 378 Cr.P.C., while hearing the State's appeal. An
    appellate court has full power to review, re-appreciate and
    reconsider the evidence upon which the order of acquittal
    is founded. Cr.P.C. puts no limitation, restriction or
B   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. Various
    expressions, such as, 'substantial and compelling
    reasons', 'good and sufficient grounds', 'very strong
c   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 emphasize the reluctance of
    an appellate court to interfere with acquittal than to curtail
0
    the power of the court to review the evidence and to
    come to its own conclusion. 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
E   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
F   strengthened by the trial court. 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. [Paras 5 and 11]
    [57-B-H; 58-A; 60-F]
G
        Murugesan vs. State Through Inspector of Police (2012)
    10 sec 383:2012 (13) SCR 1 - relied on.

        1.2. If a conclusion with regard to the innocence of
    the accused is reasonably possible on the basis of the
H
         PREM SINGH v. STATE OF HARYANA                   53


 evidence and materials on record, the High Court ought         A
 not to have disturbed the findings r~corded by the Trial
 Court, even if, on a re-appreciation of the evidence, it was
 inclined to take a different view. So long the view taken
 by the Trial Court was a possible view the exercise of the
 appellate power of the High Court under Section 378            B
 CrPC, would remain circumscribed by the well settled
 parameters. [Para 11] [60-F-G]
       2.1. In the present case, the Trial Court came to the
  conclusion that the accused should be acquitted. An
  inference adverse to the prosecution on account of non- C
  examination of the person, who could be the star witness
  for the prosecution, the inherent lacunae in the evidence
  of PWs 11 and 12 (the eye-witnesses); the doubt and
· suspicion with regard to the bonafides of the recovery of
  the fire arms; the failure of the prosecution to establish D
  the linkage between the weapons recovered and the
  bullets extracted from the body of the deceased are facts
  and conclusions that can be reasonably reached on the
  basis of the evidence and materials on record. If the
  conclusions are possible to be reached, _the same cannot E
  be characterized as unreasonable or perverse so as to
  justify the interference made by the High Court. [Para 12]
  [60-H; 61-A-C]
      2.2. The order of the High Court indicates that the
                                                                F
 reversal made was entirely on the basis of the evidence
 tendered by PWs 11 and 12. The High Court accepted
 their versions without considering the shortcomings
 inherent therein which made their presence at the place
 of occurrence highly doubtful. The mere claim of the
 prosecution that PW-11 and PW-12 were eye-witnesses            G
 to the o·ccurrence could not have been sufficient for the
 High Court to treat their ocular version as the undisputed
 version of the occurrence. The High Court did not test the
 prosecution claim in the backdrop of the totality of the
 facts of the case. Therefore, the High Court was not           H
    54      SUPREME COURT REPORTS              [2013] 10 S.C.R.


A   justified in reversing the acquittal of the accused-
    appellant. The order of acquittal of the appellant-accused
    is restored. [Para 13] [61-D-G]

                        Case Law Reference:
B        2012 (13) SCR 1         relied on            Para 5

        CRIMINAL APPELLATE JURISDICTION : Criminal Appeal
    No. 925 of 2009.

      From the Judgment & Order dated 12.05.2008 of the High
C Court of Punjab & Haryana at Chandigarh in Crl. A.No. 757
  OBA of 1997.

        D.B. Goswami, Sapam Biswajit Meitei, Khwairakpam
    Nobin Singh for the Appellant.
D         Suryanaryana Singh, AAG, Pragati Neekhra, Parth Tiwari
    for the Respondent.

         The Judgment of the Court was delivered by

       RANJAN GOGOi, J. 1. The appellant, Prem Singh,
E alongwith six others was charged for various offences
  punishable under the Indian Penal Code (IPC), 1860 and the
  Arms Act, 1959, including, the offence under Section 302 read
  with Section 149 IPC. Two of the accused, namely, Satish
  Kumar and Surinder, were acquitted even prior to the recording
F of their statements under Section 313 Code of Criminal
  Procedure (Cr.P.C). The remaining five accused, including the
  present appellant, were acquitted by the learned Trial Court at
  the conclusion of the trial by order dated 5.4.1997. Aggrieved,
  the State had filed an appeal before the High Court of Punjab
G & Haryana. The High Court by judgment and order dated
  12.5.2008 reversed the acquittal insofar as the present
  appellant Prem Singh and another accused, i.e., Vishwa
  Sandhu is concerned. Both the aforesaid accused persons
  were convicted under Section 302 read with Section 34 IPC
H and have been sentenced to undergo rigorous imprisonment
         PREM SINGH v. STATE OF HARYANA                        55
                [RANJAN GOGOi, J.]

for life. The appeal of the State in respect of the remaining three   A
accused, namely, Daulat Ram, Ballu and Radhey Shyam was
dismissed. Aggrieved by his conviction and the sentence
imposed, the appellant, Prem Singh, has filed the present
appeal.
                                                                  B
      2. The case of the prosecution, in short, is that on
26.11.1993 at about 6.30/6.45 a.m. when PW-16 Sohan Lal
was present in his house, one Vijay Kumar, a neighbour, came
and informed him that his elder brother Siri Krishan who had
gone for a morning walk has been shot at by some persons C
who had come in a Maruti car. On receipt of the said
information from Vijay Kumar, who claimed to have witnessed
the occurrence, PW-16 alongwith his nephew Navneet Kumar
went to the spot and found Siri Krishan lying in a pool of blood.
The injured was removed to the government hospital at Kamal
where he was declared "brought dead". According to the D
prosecution, on the basis of the information sent to the police
by the doctor in the government hospital, PW-24 SI Gurcharan
Singh arrived in the hospital and recorded the statement of PW-
16 Sohan Lal to the above effect (Exh.PQ). On the basis of the
said statement a FIR was registered which was investigated E
initially by PW-23 Inspector Om Prakash and thereafter by PW-
24 SI Gurucharan Singh and PW-27 Inspector Gordhan Singh.
In the course of investigation the seven accused persons
including the appellant were arrested and recovery of fire arms
was allegedly effected at the instance of accused-appellant and F
co-accused· Ballu. From the place of occurrence several empty
cartridges and lead bullets were recovered. 3 bullets were also
recovered from the dead body in the course of the post-mortem
examination. The same alongwith fire arms allegedly recovered
at the instance of the two accused were sent for forensic G
examination. On completion of the investigation the accused
persons including the present appellant were chargesheeted
and the case was committed for trial to the Court of Sessions
at Kamal. Charges under Sections 120-B, 148, 302 read with
Section 149 of the Indian Penal Code and Section 25 of the H
    56        SUPREME COURT REPORTS                     [2013] 10 S.C.R.


A   Arms Act were framed against the accusea. v\lhile the trial
    ended in the acquittal of all the accused persons the same has
    been reversed by the High Court in respect of the two accused
    persons, namely, Prem Singh and Vishwa Sandhu. Challenging
    the order of the High Court this appeal has been filed by
B   accused-appellant Prem Singh.

       3. The appeal was initially heard by a Bench of two Hon'ble
  Judges. However, there being a difference of opinion between
  the Hon'ble Judges the matter required consideration by a
  larger Bench. This is how the appeal has come to be posted
C before us.

        4. We have heard Mr. D.B. Goswami learned counsel for
    the appellant and Mr. Suryanaryana Singh, learned Addi.
    Advocate General for the State of Haryana.
D
         5. Having regard to the fact that in the instant case the High
    Court had thought it proper to reverse the order of acquittal
    passed by the learned Trial Court it will be appropriate to notice,
    though very briefly, the virtually settled position in law with regard
    to the power of the Appellate Court to reverse an order of
E   acquittal passed by a Trial Court. In a recent decision in
    Murugesan v. State Through Inspector of Police 1 this Court
    had the occasion to consider the broad principles of law
    governing the power of the High Court under Section 378 of
    the Code of Criminal Procedure, 1973. The summary of the
F   relevant principles of law set out in para 21 of the judgment may
    be extracted hereinunder:

               "21. A concise statement of the law on the issue that
         had emerged after over half a century of evolution since
G        Sheo Swarup2 is' to be found in para 42 of the Report in
         Chandrappa v. State of Karnataka 3 • The same may,
         therefore, be usefully noticed below:
    1.   (2012) 1o sec 383.
    2.   Sheo Swarup v. King Emperor, (1933-34) 61 IA 398: AIR 1934 PC 227 (2)
H   3.   (2007) 4 sec 415.
   PREM SINGH v. STATE OF HARYANA                         57
          [RANJAN GOGOi, J.]
      "42. From the above decisions, in our considered A
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,           8
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 C
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         o
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   E
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 F
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 G
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         H
    58       SUPREME COURT REPORTS                 [2013] 10 S.C.R.


A        should not disturb the finding of acquittal recorded by the
         trial court." (Emphasis supplied)

         6. It is in the light of the above principles of law that the
    reasoning and conclusions of the High Court that will have to
B   be analysed so as to determine the correctness of the view
    taken by the High Court in the present case. To facilitate the
    aforesaid exercise the manner in which the learned Trial Court
    had arrived at its conclusions in the matter may be usefully
    noticed in the first instance.

C         7. Vijay Kumar, who according to PW-16 Sohan Lal, came
    and informed him about the incident was not examined by the
    prosecution. The above fact assumes significance in as much
    as from the statement of PW-16 recorded in the hospital
    (Exh.PQ) it would appear that Vijay Kumar had witnessed the
D   occurrence. The learned Trial Court took note of the above facts
    and also that the statement of the aforesaid Vijay Kumar was
    recorded by the Investigating Officer only on 28.3.1994 and that
    too on account of an objection raised by the public prosecutor
    prior to the filing of the chargesheet (Challan) before the Court.
E   The public prosecutor had tried to justify the non-examination
    of Vijay Kumar by contending that it was not Vijay Kumar but
    his daughter who had witnessed the occurrence. Considering
    the aforesaid contention the learned Trial Court held that even
    if the same is to be accepted the daughter of Vijay Kumar
F   should have been examined as a witness. However, the
    evidence of Investigating Officers PW-23 lnsp. Om Prakash,
    PW-24 SI Gurcharan Singh and PW-27 lnsp. Gordhan Singh
    make it clear that none of the members of the family of Vijay
    Kumar were examined and no statement of any family member
G   was recorded.
         8. The learned Trial Court came to the conclusion that there
    is ample room to doubt whether PW-11 Sohan Lal and PW-
    12 Bharat Lal, who were examined by the prosecution as eye
    witnesses, had actually witnessed the occurrence. Both the
H   aforesaid two witnesses had come to Kamal (in Haryana) from
        PREM SINGH v. STATE OF HARYANA                     59
               [RANJAN GOGOi, J.]
Sunam in Punjab about two months prior to the incident and in A
the month of March, 1994 they had shifted back to Sunam from
where they had come. In this regard the Trial Court specifically
noticed that both the witnesses were not able to give any
specific address in Kamal; they had not received any summons
to appear as witnesses and had so appeared at the request B
of the son of the deceased. Furthermore, PW-11 Sohan Lal
claimed to be an employee of the brother of PW-13 Smt.
Pu.shpa Devi who is the wife of the deceased. Both PW-11 and
PVl/-12 claimed that they knew the deceased from before and
thc..t the house of the deceased was very near to the place of c
occurrence. Yet, PW-11 and PW-12 did not go to the house of
the deceased to inform the family members of the incident;
neither did they report the incident to the police. Instead, they
were roaming around aimlessly in the streets of Kamal until they
came to the place of occurrence at 1.30 p.m. when their D
statements were recorded by the police. The aforesaid facts,
 according to the learned Trial Court, cast a serious doubt with
 regard to the presence of PW-11 Sohan Lal and PW-12 Bharat
 Lal at the scene of the occurrence.
      9. Furthermore, the learned Trial Court on the basis of the E
evidence adduced before it held the recovery of the weapons
at the instance of the accused-appellant and co-accused Ballu
to be highly doubtful inasmuch as though the weapons were not
concealed under the earth, no recovery was made from the
spot on 21.09.1994; yet, on 22.1.1994 and 23.1.1994 the two F
fire arms were recovered allegedly at the instance of the
accused-appellant Prem Singh and co-accused Ballu
respectively. In this regard the Trial Court also noticed that
according to the report (Exh.PAK) of the Deputy Director,
Forensic Science Laboratory, Madhuban no linkage could be G
established between the bullets recovered from the dead body
and the fire arms allegedly recovered at the instance of the
accused both of which.were sentforforensic examination. The
learned Trial Court also noticed that PW-11 and PW-12 had
identified the acqused including the present appellant for the H
first time in Court .. It was also held that the refusal of the
    60      SUPREME COURT REPORTS                [2013] 10 S.C.R.


A   accused to cooperate and take part in the test identification
    parade could not be held adversely against the accused on
    account of the fact that even earlier to the proposed test
    identification parade the accused were shown to PWs 11 and
    12 and also to the son of the deceased.
B         10. In addition to the above, the Trial Court also noticed
    significant discrepancies in the evidence of PWs 11 and 12,
    particularly, with regard to the identity of the accused who had
    held the deceased while the two accused, i.e., accused-
    appellant Prem Singh and co-accused Vishwa Sandhu
C   allegedly fired at the deceased. In this regard PW-11 in his
    evidence had named accused Bijender Singh alias Ballu as the
    person who held the deceased from behind whereas PW-12
    Bharat Lal had named accused Satish. The fact that the
    evidence of PWs 11 and 12 on the above aspect of the case
D   is belied by the evidence of PW-3 (Dr. N.K.Bhandwal) and PW-
    25 (Dr. R.K.Kaushal) had also been taken note by the learned
    Trial Court. Both PWs 3 and 25 had stated that all the shots
    could not have been fired on the deceased if he had been held
    by a third person. The above is the broad basis on which the
E   order of acquittal passed by the learned Trial Court was
    founded.
        11. The parameters within which the High Court was
  required to exercise its powers under Section 378 of the Code
  while hearing the State's appeal have already been noticed. If
F a conclusion with regard to the innocence of the accused is
  reasonably possible on the basis of the evidence and materials
  on record the High Court ought not to have disturbed the
  findings recorded by the Trial Court, even if, on a re-
  appreciation of the evidence, it was inclined to take a different
G view. So long the view taken by the Trial Court was a possible
  view the exercise of the appellate power of the High Court under
  Section 378 CrPC would remain circumscribed by the well
  settled parameters.
        12. In the present case, the learned Trial Court for the
H   reasons noticed came to the conclusion that the accused
         PREM SINGH v. STATE OF HARYANA                          61
                [RANJAN GOGOi, J.]

before it should be acquitted. An inference adverse to the A
prosecution on account of non-examination of the person who
could be the star witness for the prosecution, namely, Vijay
Kumar; the inherent lacunae in the evidence of PWs 11 and 12;
the doubt and suspicion with regard to the bonafides of the
recovery of the fire arms; the failure of the prosecution to B
establish the linkage between the weapons recovered and the
bullets extracted from the body of the deceased are facts and
conclusions that can be reasonably reached on the basis of the
evidence and materials on record. If the aforesaid conclusions
are? possible to be reached and we are inclined to so hold, the         c
same cannot be characterized as unreasonable or perverse so
as to justify the interference made by the High Court.
       13. Furthermore, a reading of the order of the High Court
 indicates that the reversal made was entirely on the basis of
 the: evidence tendered by PWs 11 and 12. The High Court                D
 sef~ms to have accepted the versions narrated by the aforesaid
 two witnesses without considering the shortcomings inherent
 therein which made their presence at the place of occurrence
  highly doubtful, facts that had been elaborately noted by the
  learned Trial Court in its order. The mere claim of the               E
  prosecution that PW-11 Sohan Lal and PW-12 Bharat Lal were
  eye witnesses to the occurrence could not have been sufficient
  for the High Court to treat the ocular version of the said
 witnesses as the undisputed version of the occurrence. The
  High Court did not test the prosecution claim in the backdrop         F
  of the totality of the facts of the case. Having done so, we arrive
  at a different conclusion and, therefore, take the view that the
. High Court was not justified in reversing the acquittal of the
 accused-appellant Prem Singh. We, therefore, set aside the
 orcler of the High Court insofar as the present appellant is           G
 concerned and restore the order of acquittal passed by the
 learned Trial Court. The appeal is consequently allowed. If the
 appellant is presently in custody he be released forthwith unless
 his custody is required in connection with any other case.
K.KT.                                             Appeal allowed.
                                                                        H