2023 Supreme(SC) 1058

SUPREME COURT OF INDIA
M.M. SUNDRESH, J.B. PARDIWALA, JJ.
Harvinder Singh @ Bachhu - Appellant
Versus
The State of Himachal Pradesh – Respondent
Criminal Appeal Nos. 266-267 of 2015
Decided on : 13-10-2023

IMPORTANT POINTS
(1) Reputation is a fact as defined under Section 3 of Evidence Act – Court of law cannot declare reputation of a person based upon its own opinion merely because a person is educated and said to be God-fearing, that by itself will not create a positive reputation – Character and reputation do have element of interconnectivity – Character may be subsumed into reputation.
(2) Presumption of innocence in favour of accused gets strengthened by decision of trial court when he gets order of acquittal.
(3) Mere absconding by itself cannot constitute a sole factor to convict a person – It may be because an accused may abscond as he might fear an illegal arrest.

Headnote:

(A) Indian Evidence Act, 1872 – Section 3 – Fact – Connotations – Reputation is a fact as defined under Section 3 of Evidence Act – Facts can broadly be divided into external and internal facts – External facts are those which can be perceived by five senses while internal facts arise through thoughts and feelings such as love, anger, fear, hatred and intention etc. – Reputation has to be seen from point of view of an identifiable group while character is what a person really is – Character is to be formed while reputation is to be acquired – Character may lead to formation of one’s reputation but both are distinct and different – Reputation forms part of internal facts and it is required to be proved in form of opinion of persons who form it accordingly – When reputation is to be taken as a relevant fact, its evidentiary value becomes restrictive and limited – It is indeed a weak piece of evidence when becomes relatable to a fact in issue – Court of law cannot declare reputation of a person based upon its own opinion merely because a person is educated and said to be God-fearing, that by itself will not create a positive reputation – Character and reputation do have element of interconnectivity – Character may be subsumed into reputation – When conduct indicates that it is unnatural from perspective of normal human behaviour, so-called reputation takes a back seat. (Paras 16, 17 and 18)

(B) Indian Penal Code, 1860 – Sections 302, 376, 511, 454, 380 read with Section 34 – Indian Evidence Act, 1872 – Section 8 – Murder, rape, house trespass and theft – Common intention – Circumstantial evidence – Reversal of acquittal by High Court – When view of trial court which had benefit of seeing demeanour of witnesses, is both a possible and plausible one, it shall not be replaced by yet another one – Presumption of innocence in favour of accused gets strengthened by decision of trial court when he gets order of acquittal – Failure on part of prosecution in not examining a witness, though material, by itself would not vitiate trial – However, when facts are so glaring and with witnesses available, particularly when they are likely to give a different story, Court shall take adequate note of it – When a circumstance has been brought to notice of Court by defence and Court is convinced that a prosecution witness has been deliberately withheld, as it in all probability would destroy its version, it has to take adverse notice – Anything contrary to such an approach would be an affront to concept of fair play – A subsequent conduct would be a relevant fact under Section 8 of Evidence Act – However, such a fact has to be proved – Mere absconding by itself cannot constitute a sole factor to convict a person – It may be because an accused may abscond as he might fear an illegal arrest – Apart from non-availability of fingerprint report, non-examination of witnesses would go to root of very case of prosecution – Appellant is entitled to benefit of doubt as prosecution has not proved its case beyond reasonable doubt – Impugned order passed by High Court set aside and order of acquittal passed by trial court restored. (Paras 23, 24, 25, 29 and 31)

Facts of the case:

Appellant, along with co-accused (since deceased), was charged under Sections 302, 376, 511, 454, 380 read with Section 34 of Indian Penal Code, 1860. Conviction rendered for life imprisonment by Division Bench of High Court of Himachal Pradesh, by setting at naught order of acquittal rendered by Additional Sessions Judge (Presiding Officer), Fast Track Court, Solan, Himachal Pradesh, is under challenge in these appeals.

Findings of Court:

When it comes to recovery of jewels, even High Court did not give its approval. But nonetheless it proceeded to rely upon recovery made from place of occurrence on the basis of observation in inquest report. It is very case of prosecution that material object-sword, was used to commit murder and therefore in absence of availability of any fingerprint belonging to accused, one cannot come to conclusion that it was used by them alone.

Result : Appeals allowed.