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SUPREME COURT OF INDIA
B.V. Nagarathna, Manoj Misra, JJ.
Central Bureau Of Investigation - Appellant
Versus
Shyam Bihari & Others - Respondents
Criminal Appeal No.413 of 2013
Decided On : 17-07-2023
(A) Criminal Procedure Code, 1973 – Section 378 (3) – Appeal against acquittal – In an appeal against acquittal, power of appellate court to reappreciate evidence and come to its own conclusion is not circumscribed by any limitation – But appellate court must not interfere with order of acquittal merely because a contrary view is permissible, particularly, where view taken by trial court is a plausible view based on proper appreciation of evidence and is not vitiated by ignorance/misreading of relevant evidence on record. (Para 27)
(B) Indian Penal Code, 1860 – Section 302 read with Section 34 – Criminal Procedure Code, 1973 – Section 378 (3) – Murder – Common intention – Appeal against acquittal – Accused-respondents are Policemen – Judgment and order of High Court appears a bit cryptic but that by itself need not be a ground to set aside the order and remit the matter to High Court – Trial court has dealt with the matter at great length and has discussed each and every piece of evidence – There was exchange of fire between men in uniform and members of public but there is no reliable evidence that exchange of fire was with a view to kill – Even if empties of rifle cartridges relatable to service rifles issued to accused were found at spot, culpability of accused persons in causing death of deceased is not inferable – Circumstances found proved do not constitute chain so far complete as to indicate that in all human probability it were accused persons and no one else who committed crime – Appeal dismissed. (Paras 26, 30, 31, 32, 33 and 34)
Facts of the case:
Vide impugned judgment and order of High Court of Uttarakhand at Nainital, dated 26.07.2012, in Government Appeal No.4 of 2022. By said order, though delay in preferring the appeal against judgment and order of acquittal dated 13.12.2011 passed by third Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act), C.B.I., Dehradun in C. No. RC-5/87-SIU.II was condoned, the application seeking leave to appeal under section 378 (3) of Code of Criminal Procedure, 1973 was rejected and in consequence Government Appeal was dismissed.
Findings of Court:
Some of empty cartridges found at the spot, as per ballistic expert report, were not fired from rifle issued to the accused. This is indicative of presence of some other rifle also. Whose rifle it was, prosecution evidence is silent. Moreover, if accused were to use their rifle to fire shots why would they use a country made pistol to inflict injury to deceased.
Result : Appeal dismissed.
JUDGMENT :
MANOJ MISRA, J.
1. This appeal assails the judgment and order of the High Court of Uttarakhand at Nainital (in short, “the High Court”), dated 26.07.2012, in Government Appeal No.4 of 2022. By the said order, though the delay in preferring the appeal against the judgment and order of acquittal dated 13.12.2011 passed by the third Additional District & Sessions Judge/Special Judge (Prevention of Corruption Act), C.B.I., Dehradun (for short “the trial court”) in C. No. RC-5/87-SIU.II was condoned, the application seeking leave to appeal under section 378 (3) of the Code of Criminal Procedure, 1973 (in short, “the Code”) was rejected and in consequence the Government Appeal was dismissed.
Introductory Facts
2. In the night/late evening of 24.06.1987, one Raj Kumar Baliyan (in short, “the deceased”) was killed. A first information report (FIR) was lodged by Pramod Kumar Tyagi (PW-6) alleging, inter-alia, that while he and Sudeep (PW-3), on one Scooter, and Raj Kumar Balyan (the deceased) on another Scooter, were travelling from Muzaffarnagar to Meerapur to attend a marriage, near Bhatoda turn, at about 9.30 pm, in the light of the Scooter, they saw three policemen standing on the road. One of them had a Danda (stick) whereas the other two were carrying rifles. The person who had the Danda flashed a torch light on them. As a result, they lost control of their respective scooters, which skidded and fell. One of the policemen exhorted to shoot to kill. In consequence, shots were fired hitting the deceased, who collapsed at the spot. PW-3 and PW-6, however, managed to escape to the village. On information, villagers arrived at the scene of crime and so did the police. In the presence of police the deceased was rushed to the hospital but he succumbed to his injuries on the way. Thereafter, the dead body was taken to the hospital and after leaving the body there, PW-6 lodged the FIR, which was registered as Case Crime No.48/87 at P.S. Sikhera.
3. Another version of the incident was lodged at the instance of one Mahindra Singh on 25.06.1987, which gave rise to Case Crime No.48A/87. There it was alleged, inter-alia, that on 26.05.1987 a robbery took place in the village wherein one person died. As criminals were regularly visiting the village since then, a constant vigil was maintained by the villagers as well as the police which had been patrolling the area. It was alleged therein that while three police constables were patrolling the village and people of the village were keeping a watch in the night of 24.06.1987, at about 9.00 pm, a man came and raised an alarm that 5-6 criminals were about to come to the village on motorcycles and scooters. On receiving this information, the villagers and the policemen became alert. At about 9.30 pm, a motorcycle came and stopped a little ahead of Bhatoda turn. Thereafter, two scooters came at a fast speed. When torch lights were flashed and the scooters were signalled to stop, the rider fired a shot with a view to kill the villagers and the policemen. However, one of the scooters skidded and the other stopped. The criminals however started running away while firing shots. As a result, there was retaliatory fire by the police and the villagers. One of the criminals was chased and nabbed by the villagers. He was also beaten by them. At that time, from P.S. Sikhera, an Inspector arrived in an Ambassador Car. He interrogated the criminal. Later, several villagers arrived and informed that the person caught is Raj Kumar, Advocate. Thereafter, Raj Kumar was taken to the hospital. At the same time, the spot was searched and two empty shells of cartridges were recovered from the spot.
4. The investigation of the aforesaid two cases was assigned to CB-CID and later, for further investigation, to Central Bureau of Investigation (CBI) upon which, CBI registered a case No.RC-5/87-SIU.II. After investigation, CBI submitted a charge-sheet against the accused persons (the respondents herein) under Section 302
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