Point of Law: Appellate court should not ordinarily set aside a judgment of acquittal in a case where two views are possible, though view of appellate court may be more probable one. While dealing with a judgment of acquittal, appellate court has to consider entire evidence on record, so as to arrive at a finding as to whether views of trial court were perverse or otherwise unsustainable.

JUDGMENT :

ANUP JAIRAM BHAMBHANI J.

The present petition under section 378(1)(b) read with section 378(3) of the Code of Criminal Procedure, 1973 (‘Cr.P.C.’) has been filed by the State (NCT of Delhi) seeking grant of leave to appeal against judgment dated 31.01.2020 rendered by the learned Additional Sessions Judge-03, North East, Karkardooma Courts, Delhi in SC No. 03/2017 arising from case F.I.R. No. 625/2016 registered under section 302 of the Indian Penal Code, 1860 (‘IPC’) and sections 25 and 27 of the Arms Act, 1959 (‘Arms Act’) at P.S.: Khajuri Khas, Delhi. By way of the impugned judgment, the learned trial court has been pleased to acquit the accused/respondent of all charges, being of the opinion that the prosecution had failed to prove its case against the accused beyond reasonable doubt.

2. Mr. Ashish Dutta, learned Additional Public Prosecutor, appearing on behalf of the State has taken us through the impugned judgment as also through the evidence, both oral and documentary, that has come on record during the course of the trial. The essential case of the prosecution against the accused respondent was that on 24.08.2016 the accused shot at one Firoz in a factory; and the latter subsequently died.

3. We have carefully examined the evidence on record and we find that :

i. The principal ocular witnesses in the case were : PW-9 Arshad Ali alias Lakki; PW-10 Sonu Verma; PW-16 Amit Kumar and PW-17 Abid Ali. A perusal of the testimony of the said ocular witnesses shows that all of them turned hostile on all critical and material aspects of the allegations against the respondent;

ii. Also, the medical evidence brought on record by PW-1 Dr. Vishwajeet Singh, who had conducted the post-mortem examination of the deceased, was to the effect that death was a consequence of haemorrhagic shock as a result of antemortem injury to chest produced by projectile from a firearm, which was sufficient to cause death in the ordinary course. The firearm, which was stated to be a country-made pistol, was alleged to have been recovered at the instance of the accused. However, the ballistics expert, PW-21 Ms. Babita Gulia, said in her report, that no opinion could be formed to link the cartridge recovered from the crime-scene with the country-made pistol, alleged to have been recovered at the instance of the respondent;

iii. Furthermore, it also transpires that while cross-examining the post-mortem doctor, the prosecution did not put the country-made pistol to him; and the investigating officer also did not seek any subsequent opinion from the doctor, as to whether the country-made pistol allegedly recovered could have been the weapon of offence.

4. Now before proceeding further, we must remind ourselves of the position of law, as laid down by the Hon’ble Supreme Court, as to grant of leave to appeal against a judgment of acquittal under sections 378 and 386 Cr.P.C. To begin with, it would be in context to extract the relevant portions of the said two provisions, for ease of reference. Section 378(1)(b) reads as under :

“378. Appeal in case of acquittal. - (1) Save as otherwise provided in sub-section (2), and subject to the provisions of sub-sections (3) and (5),—

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(b) the State Government may, in any case, direct the Public Prosecutor to present an appeal to the High Court from an original or appellate order of an acquittal passed by any Court other than a High Court [not being an order under clause (a)] or an order of acquittal passed by the Court of Session in revision.

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(3) No appeal to the High Court under sub-section (1) or sub-section (2) shall be entertained except with the leave of the High Court.”

Section 386 (a) Cr.P.C. reads as under :

“386. Powers of the Appellate Court.—After perusing such record and hearing the appellant or his pleader, if he appears, and the Public Prosecutor if he appears, and in case of an appeal under section 377 or section 378, the accused, if he appears, the Appellate Court may, if it considers that