State v. Mewa Lal & Ors.

12. Before we proceed to examine the testimonies of the aforesaid witnesses, namely Arun Kumar (PW-16) and Rajinder Singh (PW- 17), it will be necessary to outline the case put up by the prosecution before the learned trial Court. 12A. As mentioned earlier, Takan Dass (since deceased) entered into a criminal conspiracy with Anand Prakash (since deceased) and Mewa Lal (R-1), to commit the murder of the deceased, who was a tenant in the shop owned by the former. The motive behind the conspiracy was to get the deceased to vacate the said shop as Takan Dass’s efforts through legal means were not successful. It was the case of the prosecution that Mewa Lal (R-1) further persuaded Ramesh @ Bhure (R-2) to participate in the said criminal conspiracy and the latter, in turn suggested involving Diler Singh (R-4), Surender Saini @ Pappan (R-3) and Sanjay (R-5) in the said conspiracy. Accordingly, as per the case of the prosecution, they all joined the criminal conspiracy to eliminate the deceased. It was further alleged in the chargesheet that accused Mewa Lal (R-1) and his co-accused Ramesh @ Bhure (R-2), Diler Singh (R-4), Sanjay (R-5) and Surender Saini @ Pappan (R-3) had gone to New Delhi Railway Station on 23.07.1991 in two, three-wheeler scooters, where the deceased usually boarded a three-wheeler scooter for going to his clinic at Laxmi Nagar from his clinic at Paharganj. Mewa Lal (R-1), Diler Singh (R-4) and Ramesh @ Bhure (R-2) sat in the scooter No. DIR-527 being driven by accused Sanjay Kumar (R-5). Another three-wheeler scooter bearing no. DL-1R-5522 was being driven by Surender Saini @ Pappan (R-3). As per their plan, Surender Saini @ Pappan (R-3) had parked his scooter no. DL-1R-5522 in front of New Delhi Railway Station in Paharganj area. Sanjay (R-5) had parked his scooter no. DIR-527 just behind the scooter of Surender Saini @ Pappan (R-3). Ramesh @ Bhure (R-2) and Diler Singh (R-

4) continued to sit in Sanjay’s (R-5) scooter. The deceased reached at that place at about 07:30 PM from his clinic in order to board a scooter. Mewa Lal (R-1) had allegedly pointed out to him the scooter of Surender Saini @ Pappan (R-3) and had signaled the latter to take the deceased away in his three-wheeler scooter. Surender Saini @ Pappan (R-3), as per their criminal conspiracy hatched prior to the incident, had made the deceased board his three-wheeler scooter. When Surender Saini @ Pappan (R-3) started his scooter, Mewa Lal (R-1), Ramesh @ Bhure (R-2) and Diler Singh (R-4) followed the scooter being driven by Surender Saini @ Pappan (R-3) in the scooter being driven by Sanjay (R-5). Both the scooters, after crossing Connaught Place, Minto Bridge, Deen Dayal Upadhyay Marg, reached near ITO crossing. When the traffic light turned red, Surender Saini @ Pappan (R-3) stopped his scooter at the red light. Sanjay (R-5) also stopped his three-wheeler scooter behind the scooter of Surender Saini @ Pappan (R-3). Mewa Lal (R-1) and Ramesh @ Bhure (R-2), allegedly, immediately alighted from the scooter of Sanjay (R-5) and boarded the scooter being driven by Surender Saini @ Pappan (R-3), in which the deceased was also sitting. Both, Mewa Lal (R-1) and Ramesh @ Bhure (R-2) surrounded the deceased from the left and the right side and directed Surender Saini @ Pappan (R-3) to take a ‘U-turn’. It is also alleged by the prosecution that after the scooter being driven by Surender Saini @ Pappan (R-3), had taken a U-turn, Surender Saini @ Pappan (R-3) accelerated the speed of the said scooter and turned the same towards the road leading to Maulana Azad Medical College. Mewa Lal (R-1), allegedly, started stabbing the deceased with his dagger and Ramesh @ Bhure (R-2) tried to shoot him with his revolver, but due to a mechanical defect, the said revolver could not work in time. Meanwhile, Surender Saini @ Pappan (R-3) turned his scooter towards one narrow lane, Mewa Lal (R-1) took the deceased in his grip and Ramesh @ Bhure (R-2) stabbed him with a dagger. The body of the deceased, thereafter, was thrown by the respondents from the scooter and the respondents escaped from the scene. Further, it is the prosecution’s case that the deceased was carrying one bag which contained one tiffin, some documents and some instruments. He was also wearing one gold chain with a locket and was carrying a purse. The accused Mewa Lal (R-1) and Ramesh @ Bhure (R-2) also took away the said bag, gold chain and purse. They left the scooter of Surender Saini @ Pappan (R-3) near Kabir Basti, Subzi Mandi. They threw away the purse, documents and the bag near the school near Subzi Mandi. The instruments were allegedly left by them near the bushes. The golden chain alongwith the locket was allegedly kept by Ramesh @ Bhure (R-2) while Mewa Lal (R-1) carried the tiffin with him. 12B. It will be pertinent to observe here that the aforesaid narrative is based on the disclosure statements made by the respondents. Admittedly, the case initially registered was with respect to a blind murder. In absence of any eye witnesses, the prosecution relied upon circumstantial evidence, to prove the conspiracy between the accused persons chargesheeted, including the present respondents. The said circumstantial evidence included witnesses, who the prosecution claimed had seen the deceased in the company of the respondents no. 1 to 3 on the day of incident, in order to prove that the said respondents were involved in the alleged conspiracy. The learned trial Court, after examining the evidence put forth by the prosecution in the trial, came to the conclusion that the prosecution had failed to prove the existence of a criminal conspiracy amongst the accused persons chargesheeted, including the present respondents, for committing the murder of the deceased. The learned trial Court in Para 25 records as under:- “At the same time, it may also be added that no evidence worth the name was placed on record which may show that all the accused persons were found together at any timeprior to the incident. No evidence has placed on record which may show that all the accused persons was found talking to any of the witnesses or to any of the accused persons prior to the incident from which the court may prima-facie come to the conclusion that all the accused persons had hatched a conspiracy to eliminate Dr. I.S. Verma from the scene. As such, in my opinion, the prosecution has miserably failed to prove the existence of criminal conspiracy among the accused persons for murdering Dr. I.S. Verma as was sought to be allowed against them.” 12C. After disbelieving the case of the prosecution in respect of the criminal conspiracy, the learned trial Court proceeded to examine the evidence placed on record, with respect to the role of each of the accused persons named in the chargesheet.

13. At this stage, it is observed that the submissions made on behalf of the State in the present appeal, are primarily with respect to the statements made by Arun Kumar (PW-16) and Rajinder (PW-17), which incriminate Mewa Lal (R-1), Ramesh @ Bhure (R-2) and Surender Saini @ Pappan (R-3). So far as the findings qua the remaining respondents, namely, Diler Singh (R-4) and Sanjay (R-5) are concerned, the same have not been contested by the State in the present appeal. In view of the foregoing, we propose to examine the findings of the learned trial Court qua Mewa Lal (R-1), Ramesh @ Bhure (R-2) and Surender Saini @ Pappan (R-3), with respect to the testimonies of PW-16 and PW-17.

14. As per the case of the prosecution, at about 04:00-04:15 PM, Rajinder Singh (PW-17, son-in-law of the deceased) had visited the clinic of the deceased in Paharaganj. The said witness testified that he overheard hot words being exchanged inside the clinic and he had seen Takan Dass (since deceased) and Mewa Lal (R-1) sitting inside the said clinic. He further testified that the deceased had informed him that Takan Dass was insisting upon him to vacate the shop. This witness states that after giving solace to the deceased, he had come back. He disclosed the said incident to the SHO I. P. Estate on 25.07.1991. Learned trial Court, after scrutinizing the aforesaid testimony of PW-17, came to the conclusion that the evidence of the said witness was introduced as an afterthought by the prosecution to link Mewa Lal (R-1) with the commission of the offence. The reasoning of the learned trial Court, for arriving at the aforesaid conclusion is recorded in the impugned judgment at Para 33 in the following words:

15. It is further the case of the prosecution that Arun Kumar (PW-

16) was a resident of Aram Bagh, Delhi. He used to sell lotteries near Gandhi Memorial Hall, near Pyare Lal Bhawan, at the bus stand of ITO. On 23.07.1991, at about 7/8.00 PM, after completing his daily work, he was going back to his house. When he had crossed the intersection of ITO and gone towards Rouse Avenue road side, he found that one three-wheeler scooter had just stopped in front, at the red light. The same was being driven by Surender Saini @ Pappan (R-3). One passenger was found sitting on the three-wheeler scooter and he was wearing a safari suit. Another three-wheeler scooter also arrived at the red light. In that three-wheeler scooter, two boys having a blackish complexion were sitting. They turned out to be Ramesh @ Bhure (R-2) and Mewa Lal (R-1). After alighting from the scooter, they went towards the first scooter and boarded the same and started grappling with the passenger who was sitting in the first scooter. Meanwhile, the traffic light had turned green and both threewheeler scooters took a U-turn and went towards Rouse Avenue. With this testimony, the prosecution had sought to prove the involvement of Mewa Lal (R-1), Ramesh @ Bhure (R-2) and Surender Saini @ Pappan (R-3), in so far as they were seen with the deceased before the recovery of the body of the latter. The learned trial Court did not loose significance of the testimony of PW-16 and minutely examined the same. The finding with respect to the credibility of PW-16, by the trial Court, in the impugned judgment is recorded as under:

16. Similarly, with respect to the case of the prosecution regarding the recoveries made at the instance of the respondents, the learned trial Court concluded that the same were highly doubtful and suspicious. As mentioned earlier, the recoveries in the present case were made subsequent to the arrest of the present respondents on 27.09.1991 in case FIR No. 191/91, under Section 398 IPC, registered at P.S. Subzi Mandi. The independent witness, Om Prakash (PW-2), who was a witness to all the recovery memos had turned hostile and did not support the case of the prosecution. The relevant portion of the impugned judgment with regard to the finding with respect to the recoveries is reproduced below:

17. The next circumstance which has been sought to be relied upon by the State is the identification of Mewa Lal (R-1) in the TIP proceedings, conducted during investigation and the refusal by Ramesh @ Bhure (R-2) and Surender Saini @ Pappan (R-3) to participate in the TIP proceedings. In this regard, the learned trial Court has observed that no evidence had been brought on record to show that the respondents were kept in muffled faces during their custody, at the police station on 26.09.1991. In this regard, the learned trial Court has further observed that Mewa Lal (R-1), as per the case of the prosecution itself, was taken to different places, for getting the alleged incriminating articles recovered. In this background, the learned trial Court has observed as under:- “41....So, the chances of the accused Mewa Lal, Ramesh @ Bhure and Surender Saini being shown to the witnesses at P.S. Subzi Mandi cannot be ruled out. In these circumstances, the refusal on the part of the accused Ramesh @ Bhure and Surender Saini @ Pappan in participating in TIP on the ground that the witnesses have seen them at P.S. Subzi Mandi appears to be justified. Consequently, this Court cannot draw any adverse presumption against them u/s 114 of Evidence Act for their refusal in participating in TIP proceedings. Similarly, the chances of accused Mewa Lal being shown to the witnesses after his arrest cannot be ruled out. Even otherwise, PW Arun Kumar in his cross-examination has admitted that he was taken to Tihar Jail by the police on 25/26.9.91. Although, he was not definite about the exact date. So it means that this important witness was taken to Tihar Jail by the Investigating Officer perhaps to have a close look at accused Mewa Lal. In any case, as as already stated, it was impossible for PW Arun Kumar to have closely examined the distinct feature of accused persons when he had seen them for few seconds and it was not possible for him to have recollected their distinct feature when he had seen them for the first time after a gap of more than 2 months in Tihar Jail and these circumstances clearly create a doubt in my mind regarding the identity of accused Mewa Lal at the instance of PW Arun Kumar. Similarly, the identity of accused Mewa Lal by PW Rajinder Singh also become doubtful when no normal precaution was taken by police by keeping in muffled face after his arrest. Even the arrest of accused on 26.9.91 appears to be doubtful as the concerned court who tried his case u/s 398 IPC totally disbelieved the prosecution case....” In view of the above, the learned trial Court did not accept the contention of the prosecution that the identification of Mewa Lal (R-

1) and refusal by Ramesh @ Bhure (R-2) and Surender Saini @ Pappan (R-3) to participate in the TIP proceedings, corroborated the case of the prosecution.

APPEAL AGAINST ACQUITTAL

18. It is well settled that in an appeal against acquittal under Section 378 Cr.P.C, the scope of the appellate Court is to the extent that the judgment of acquittal should not be ordinarily interfered with unless the findings in such judgment are shown to be arrived at by incorrect or perverse appreciation of material on record and the law. This settled position of law with respect to the scope of the appellate Court qua an appeal against the acquittal has been considered in a catena of judgments by the Hon’ble Supreme Court. In Basheera Begam v. Mohd. Ibrahim, (2020) 11 SCC 174 the Hon’ble Supreme Court has held:

191. In Sadhu Saran Singh v. State of U.P, this Court observed that an appeal against acquittal has always been on an altogether different pedestal from an appeal against conviction. In an appeal against acquittal, where the presumption of innocence in favour of the accused is reinforced, the appellate court would interfere with the order of acquittal only when there is perversity. In this case, it cannot be said that the reasons given by the High Court to reverse the conviction of the accused are flimsy, untenable or bordering on perverse appreciation of evidence.”

19. Recently, the Hon’ble Supreme Court in Jafarudheen v. State of Kerala, (2022) 8 SCC 440, made a detailed analysis of the precedents, with respect to the scope of an appeal against acquittal and recorded as under; “Scope of appeal filed against the acquittal

25. While dealing with an appeal against acquittal by invoking Section 378 CrPC, the appellate court has to consider whether the trial court's view can be termed as a possible one, particularly when evidence on record has been analysed. The reason is that an order of acquittal adds up to the presumption of innocence in favour of the accused. Thus, the appellate court has to be relatively slow in reversing the order of the trial court rendering acquittal. Therefore, the presumption in favour of the accused does not get weakened but only strengthened. Such a double presumption that enures in favour of the accused has to be disturbed only by thorough scrutiny on the accepted legal parameters. Precedents

26. Mohan v. State of Karnataka as hereunder: (SCC paras 20-23)

14.3. In the recent decision of Vijay Mohan Singh, this Court again had an occasion to consider the scope of Section 378 CrPC and the interference by the High Court in an appeal against acquittal. This Court considered a catena of decisions of this Court right from 1952 onwards. In para 31, it is observed and held as under: (Vijay Mohan Singh case, SCC pp. 447-49) “31. An identical question came to be considered before this Court in Umedbhai Jadavbhai. In the case before this Court, the High Court interfered with the order of acquittal passed by the learned trial court on reappreciation of the entire evidence on record. However, the High Court, while reversing the acquittal, did not consider the reasons given by the learned trial court while acquitting the accused. Confirming the judgment of the High Court, this Court observed and held in para 10 as under: (SCC p. 233) „10. Once the appeal was rightly entertained against the order of acquittal, the High Court was entitled to reappreciate the entire evidence independently and come to its own conclusion. Ordinarily, the High Court would give due importance to the opinion of the Sessions Judge if the same were arrived at after proper appreciation of the evidence. This rule will not be applicable in the present case where the Sessions Judge has made an absolutely wrong assumption of a very material and clinching aspect in the peculiar circumstances of the case.‟

31.1. In Sambasivan, the High Court reversed the order of acquittal passed by the learned trial court and held the accused guilty on reappreciation of the entire evidence on record, however, the High Court did not record its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable. Confirming the order passed by the High Court convicting the accused on reversal of the acquittal passed by the learned trial court, after being satisfied that the order of acquittal passed by the learned trial court was perverse and suffered from infirmities, this Court declined to interfere with the order of conviction passed by the High Court. While confirming the order of conviction passed by the High Court, this Court observed in para 8 as under: (SCC p. 416) „8. We have perused the judgment under appeal to ascertain whether the High Court has conformed to the aforementioned principles. We find that the High Court has not strictly proceeded in the manner laid down by this Court in Doshi case viz. first recording its conclusion on the question whether the approach of the trial court in dealing with the evidence was patently illegal or the conclusions arrived at by it were wholly untenable, which alone will justify interference in an order of acquittal though the High Court has rendered a well-considered judgment duly meeting all the contentions raised before it. But then will this noncompliance per se justify setting aside the judgment under appeal? We think, not. In our view, in such a case, the approach of the court which is considering the validity of the judgment of an appellate court which has reversed the order of acquittal passed by the trial court, should be to satisfy itself if the approach of the trial court in dealing with the evidence was patently illegal or conclusions arrived at by it are demonstrably unsustainable and whether the judgment of the appellate court is free from those infirmities; if so to hold that the trial court judgment warranted interference. In such a case, there is obviously no reason why the appellate court's judgment should be disturbed. But if on the other hand the court comes to the conclusion that the judgment of the trial court does not suffer from any infirmity, it cannot but be held that the interference by the appellate court in the order of acquittal was not justified; then in such a case the judgment of the appellate court has to be set aside as of the two reasonable views, the one in support of the acquittal alone has to stand. Having regard to the above discussion, we shall proceed to examine the judgment of the trial court in this case.‟

31.2. In K. Ramakrishnan Unnithan, after observing that though there is some substance in the grievance of the learned counsel appearing on behalf of the accused that the High Court has not adverted to all the reasons given by the trial Judge for according an order of acquittal, this Court refused to set aside the order of conviction passed by the High Court after having found that the approach of the Sessions Judge in recording the order of acquittal was not proper and the conclusion arrived at by the learned Sessions Judge on several aspects was unsustainable. This Court further observed that as the Sessions Judge was not justified in discarding the relevant/material evidence while acquitting the accused, the High Court, therefore, was fully entitled to reappreciate the evidence and record its own conclusion. This Court scrutinised the evidence of the eyewitnesses and opined that reasons adduced by the trial court for discarding the testimony of the eyewitnesses were not at all sound. This Court also observed that as the evaluation of the evidence made by the trial court was manifestly erroneous and therefore it was the duty of the High Court to interfere with an order of acquittal passed by the learned Sessions Judge.

31.3. In Atley, in para 5, this Court observed and held as under: (AIR pp. 809-10) „5. It has been argued by the learned counsel for the appellant that the judgment of the trial court being one of acquittal, the High Court should not have set it aside on mere appreciation of the evidence led on behalf of the prosecution unless it came to the conclusion that the judgment of the trial Judge was perverse. In our opinion, it is not correct to say that unless the appellate court in an appeal under Section 417 CrPC came to the conclusion that the judgment of acquittal under appeal was perverse it could not set aside that order. It has been laid down by this Court that it is open to the High Court on an appeal against an order of acquittal to review the entire evidence and to come to its own conclusion, of course, keeping in view the wellestablished rule that the presumption of innocence of the accused is not weakened but strengthened by the judgment of acquittal passed by the trial court which had the advantage of observing the demeanour of witnesses whose evidence has been recorded in its presence. It is also well settled that the court of appeal has as wide powers of appreciation of evidence in an appeal against an order of acquittal as in the case of an appeal against an order of conviction, subject to the riders that the presumption of innocence with which the accused person starts in the trial court continues even up to the appellate stage and that the appellate court should attach due weight to the opinion of the trial court which recorded the order of acquittal. If the appellate court reviews the evidence, keeping those principles in mind, and comes to a contrary conclusion, the judgment cannot be said to have been vitiated. (See in this connection the very cases cited at the Bar, namely, Surajpal Singh v. State; Wilayat Khan v. State of U.P.) In our opinion, there is no substance in the contention raised on behalf of the appellant that the High Court was not justified in reviewing the entire evidence and coming to its own conclusions.‟

31.4. In K. Gopal Reddy, this Court has observed that where the trial court allows itself to be beset with fanciful doubts, rejects creditworthy evidence for slender reasons and takes a view of the evidence which is but barely possible, it is the obvious duty of the High Court to interfere in the interest of justice, lest the administration of justice be brought to ridicule.”‟” (emphasis in original)

27. N. Vijayakumar v. State of T.N.as hereunder: (SCC pp. 695-99, paras 20-21 & 23-24)

23. Further, in Hakeem Khan v. State of M.P. this Court has considered the powers of the appellate court for interference in cases where acquittal is recorded by the trial court. In the said judgment it is held that if the “possible view” of the trial court is not agreeable for the High Court, even then such “possible view” recorded by the trial court cannot be interdicted. It is further held that so long as the view of the trial court can be reasonably formed, regardless of whether the High Court agrees with the same or not, verdict of the trial court cannot be interdicted and the High Court cannot supplant over the view of the trial court. Para 9 of the judgment reads as under: (SCC pp. 722-23) „9. Having heard the learned counsel for the parties, we are of the view that the trial court's judgment is more than just a possible view for arriving at the conclusion of acquittal, and that it would not be safe to convict seventeen persons accused of the crime of murder i.e. under Section 302 read with Section 149 of the Penal Code. The most important reason of the trial court, as has been stated above, was that, given the time of 6.30 p.m. to 7.00 p.m. of a winter evening, it would be dark, and, therefore, identification of seventeen persons would be extremely difficult. This reason, coupled with the fact that the only independent witness turned hostile, and two other eyewitnesses who were independent were not examined, would certainly create a large hole in the prosecution story. Apart from this, the very fact that there were injuries on three of the accused party, two of them being deep injuries in the skull, would lead to the conclusion that nothing was premeditated and there was, in all probability, a scuffle that led to injuries on both sides. While the learned counsel for the respondent may be right in stating that the trial court went overboard in stating that the complainant party was the aggressor, but the trial court's ultimate conclusion leading to an acquittal is certainly a possible view on the facts of this case. This is coupled with the fact that the presence of the kingpin Sarpanch is itself doubtful in view of the fact that he attended the Court at some distance and arrived by bus after the incident took place.‟

24. By applying the abovesaid principles and the evidence on record in the case on hand, we are of the considered view that having regard to material contradictions which we have already noticed above and also as referred to in the trial court judgment, it can be said that acquittal is a “possible view”. By applying the ratio as laid down by this Court in the judgments which are stated supra, even assuming another view is possible, same is no ground to interfere with the judgment of acquittal and to convict the appellant for the offence alleged. From the evidence, it is clear that when the Inspecting Officer and other witnesses who are examined on behalf of the prosecution, went to the office of the appellantaccused, the appellant was not there in the office and office was open and people were moving out and in from the office of the appellant. It is also clear from the evidence of PWs 3, 5 and 11 that the currency and cellphone were taken out from the drawer of the table by the appellant at their instance. There is also no reason, when the tainted notes and the cellphone were given to the appellant at 5.45 p.m. no recordings were made and the appellant was not tested by PW 11 till

7.00 p.m.” CONCLUSION

20. In view of the above general principles, the appellant/State had to demonstrate that the impugned judgment suffered from any illegality or perversity. Whether the view taken by the learned trial Court was a possible one or not has to be determined on the basis of evidence on record, including the testimonies of the witnesses and documents. In the present appeal, the grounds urged by the State were the same as those that were raised before the learned trial Court. It is not the case of the appellant/State that the learned trial Court has omitted to consider or deal with any particular piece of evidence or circumstance, which otherwise could have reversed the scale in favour of the prosecution. The learned trial Court, in our considered view, has minutely and diligently dealt with the entire evidence and circumstances brought on record by the prosecution during the trial of the present case.

21. As pointed out hereinbefore, the learned trial Court, after due consideration, has disbelieved the testimonies of Arun Kumar (PW-

16) and Rajinder Singh (PW-17). Arun Kumar (PW-16), who happened to be a chance witness, was a key witness to the prosecution case. A perusal of the cross-examination of Arun Kumar (PW-16) would demonstrate that the conclusion of the trial Court was possible and reasonable one. The Hon’ble Supreme Court, in Baby alias Sebastian and Another v. Circle Inspector of Police, Adimaly, (2016) 13 SCC 333, while dealing with evidence of a chance witness as observed as under:-

29. A careful reading of the evidence on record clearly highlights the material contradictions and discrepancies in the prosecution evidence especially the testimonies of Mathai (PW 6) and Eldose (PW 17) upon which strong reliance has been placed by the High Court in convicting both the appellants by setting aside the acquittal order passed by the trial court. From the testimony of PW 6 one thing is clear that he is a chance witness who happened to have witnessed the incident by chance. It is a well-settled legal principle that the evidence of a chance witness cannot be brushed aside simply because he is a chance witness but his presence at the place of occurrence must be satisfactorily explained by the prosecution so as to make his testimony free from doubt and thus, reliable.

30. This Court in Jarnail Singh v. State of Punjab has elaborately explained the reliability of a chance witness as under: (SCC p. 725, paras 21-22)

(emphasis supplied) The answers given by the said witness with respect to his residential address and reasons for being present at the spot whereby he witnessed respondents no. 1 to 3 in the company of the deceased were evasive and contradictory. Similarly, the identification by Arun Kumar (PW-16) of the deceased and of the respondents no.1 to 3 is also not worthy of any credit. At this stage, we may observe that as per this witness, he had identified the body of deceased in presence of the Investigating Officer. However, none of the official witnesses, including the Investigating Officer state that this witness had identified the body of deceased in their presence. Apart from that, as observed by learned trial Court, this witness contradicted himself regarding the place of the identification, i.e., whether at the spot where the body of the deceased was recovered, or in the mortuary at the hospital. It is pertinent to note that the relevance of this witness had been on the premise that he had identified the body of deceased and had claimed to have witnessed the presence of respondents no. 1 to 3 in the company of the former. This witness had stated: “Next morning i.e. on 24.7.91,I came to my shop Time was about 6 AM, there I came to know that a person had been murdered on Bal Bhawan Road near Manak Bhawan. The police was asking the people if some body recognizes the deceased. I told the SHO. Then I was taken to the JPN Hospital. There I identified the deceased and I told about the quarrel between the deceased and two persons in TSR.” Thus, the genesis of this witness’s testimony is the identification of deceased’s body. In absence of any other corroborative evidence supporting this claim as to when, where and how this witness identified the body of deceased, the possibility that this witness was planted subsequently to support the prosecution case cannot be ruled out. In our considered view, the conclusion of the learned trial Court that Arun Kumar (PW-16) could not satisfactorily explain his presence at that particular point of time and therefore, was a planted witness is a reasonable view. Even otherwise, the testimony of this witness does not inspire confidence and therefore, cannot be relied upon.

22. The bedrock of the prosecution case was the testimony by Arun Kumar (PW-16) as it was the strongest link in the chain of circumstances sought to be proved to establish the guilt of the present respondents. The evidence of Rajinder Singh (PW-17), the alleged recoveries and the TIP proceedings, which were canvassed on behalf of the prosecution, were at best corroborative in nature. The finding with respect to this evidence has been dealt with in detail by the learned trial Court as pointed out in the previous paragraphs. The conclusion of the learned trial Court is again a reasonable and possible one.

23. As discussed above, in any appeal against an order of acquittal, the presumption in favour of the accused is strengthened and such a presumption should not ordinarily be disturbed, unless there are substantial and compelling reasons for the same. It is now well settled that the burden on the prosecution in prosecuting an appeal against acquittal is onerous. The prosecution has to demonstrate that the judgment rendered by the learned trial Court was arrived at on the basis of an incorrect appreciation of the facts and evidence on record, necessitating interference by this Court. It is also a settled principle that if the view taken by the learned trial Court “is a possible view”, then the order of acquittal should not be reversed.

24. Having heard, learned counsel appearing on behalf of both the parties and going through the record of the case, we are of the view that the reasoning and conclusion arrived at by the learned trial Court in the present impugned judgment is a possible view. We have already highlighted the material contradictions in the prosecution case referred to by the learned trial Court in the impugned judgment and the same do not suffer from any infirmity or illegality. We have satisfied ourselves from the record of the case that the finding in the impugned judgment of the learned trial Court is both possible and plausible.

25. In view of the foregoing, we don’t find any reason to interfere with the impugned judgment dated 30.01.1991, passed by Sh. K.S. Khurrana, ASJ, Delhi in case FIR No. 272/1991, under Section 302/120B, IPC registered at Police Station, I.P. Estate, New Delhi.

26. Consequently, the present appeal filed by the appellant/State is dismissed and disposed of accordingly.

27. Pending application(s), if any, also stand disposed of.

28. Bail bonds submitted on behalf of the respondents stand discharged.

AMIT SHARMA JUDGE SIDDHARTH MRIDUL JUDGE OCTOBER 20, 2022