In a righteous, recent and remarkable decision titled Anwar Ali and another vs The State of Himachal Pradesh in Criminal Appeal No. 1121 of 2016 a three Judge of the Apex Court comprising of Justice MR Shah, Justice Ashok Bhushan and Justice R Subhash Reddy in exercise of its criminal appellate jurisdiction have reiterated very strongly that absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. The Apex Court thus restored the acquittal of two accused – Anwar Ali and Sharif Mohammad by setting aside the conviction recorded by the Himachal Pradesh High Court. Anwar and Sharif were both accused of murdering one Deepak.
To start with, this latest, landmark and laudable judgment authored by Justice MR Shah for himself, Justice Ashok Bhushan and Justice R Subhash Reddy sets the ball rolling by first and foremost observing in para 1 that:
Feeling aggrieved and dissatisfied with the impugned judgment and order dated 20.09.2016 passed by the High Court of Himachal Pradesh in Criminal Appeal No. 464 of 2012, by which the High Court has allowed the said appeal preferred by the respondent – The State of Himachal Pradesh and has reversed the judgment and order of acquittal passed by the learned trial Court and consequently has convicted the appellants – original accused for the offences punishable under Sections 302 read with 34, 392, 201 and 420, IPC and has sentenced the appellants herein – original accused to undergo life imprisonment for the offences punishable under Section 302 read with 34, IPC, the appellants – original accused have preferred the present appeal.
While elaborating on the facts of the case, what is then contained in para 2 is this:
That the appellants herein – original accused were charged for the offences punishable under Sections 302 read with 34, 392, 420 and 201, IPC for having committed the murder of one Deepak. That the dead body of the deceased was found on 2.9.2010 near bypass Bihali Road, Chandigarh. That the dead body was seen by one Jashwinder Singh, PW4, who informed the police station, Bhunter. On receiving such information, the police came on the spot; recorded the statement of PW4; prepared Rukka and sent the same through Constable Pushparaj, PW2 to police station, Bhunter. FIR was registered by Head Constable Tara Chand. That the dead body was identified by the father of the deceased. The investigating officer, PW18 conducted the investigation. The dead body was sent for post mortem.
SHO/SI Narayan received a secret information on 5.9.2010 that one vehicle (jeep) was lying at Chandigarh in abandoned condition. IO along with the other police officers went to Chandigarh and recovered the abandoned vehicle from Sector 45C, Chandigarh. On checking the jeep, one envelope was found to have been recovered containing mobile phone, three photographs and the documents of the vehicle were lying on the dash board of the jeep. IO took into possession the vehicle and the documents vide memo. IO dialed from recovered mobile to his own mobile and the number was detected as 9805523262. From the recovered photographs, the accused were searched at place Pandoh Bajwara Aut.
Both the accused were arrested on 8.9.2010. During the investigation, the IO recovered the crates from Punjab. IO also recovered one knife and the rape on 09.09.2010, alleged to have been used in commission of the offence. After conclusion of the investigation, IO filed chargesheet against the accused persons for the aforesaid offences.
To be sure, it is then stated in para 2.1 that, To prove the case against the accused, the prosecution examined in all 9 witnesses, out of 19 witnesses shown in the chargesheet, details of which are given below:
S.L. No. Name:
- Biri Singh (attesting witness on recovery of cloths) (Ex. P.W.2/C & Ex.P.W.2/D)
- Dinesh Singh (attesting witness on recovery of Jeep, photographs, Mobile) Ex. P.W. 1/A
- Lucky (witness on recovery of clothes)
- Subhash (Father of deceased)
- Rampal, witness of disclosure statement as per PW3
- Niranjan Singh He was attesting witness on the seizure of crates from Ropar (Ext. P.W. 1/B)
- Jyoti Kumar, witness on recovery of crates from Ropar
- Rajendra Kohli + Sushil Kumar
- H.C. Pune Ram
The prosecution also brought on record the documentary evidence of the aforesaid witnesses. After conclusion of the recording of the evidence, statement of the accused persons under Section 313, Cr.P.C. were recorded.
Before the trial Court, the prosecution mainly relied upon the trial Court, the prosecution mainly relied upon the disclosure statements, recovery of vehicle (jeep), recovery of knife and rope from the spot, recovery of mobile and photographs (from the jeep). Before the trial Court, the case was based on circumstantial evidence as there was no direct evidence. That on appreciation of evidence on record, both oral as well as documentary, the learned trial Court by a detailed reasoning did not believe the disclosure statements, recovery of knife and rope alleged to have been used for commission of the offence, recovery of mobile and the recovery of the photographs from the jeep.
That on appreciation of evidence, the learned trial Court found that the prosecution withheld the material information with respect to the sniffer dogs and on appreciation of evidence found that the recoveries were made earlier and the panchnama of the same were prepared subsequently on which PW5 and PW6 put their signatures. Having found that the prosecution has failed to establish and prove the complete chain of events and that it was a case of circumstantial evidence, by a detailed judgment and order, the learned trial Court acquitted both the accused for the offences for which they were tried.
Furthermore, it is then pointed out in para 2.2 that:
On appeal by the State, by the impugned judgment and order, the High Court has reversed the judgment and order of acquittal passed by the learned trial Court and consequently has convicted the accused for the offences punishable under Sections 302 read with 34, 392, 420 and 201, IPC. By the impugned judgment and order, the High Court has sentenced the appellants – original accused to undergo life imprisonment for the offence under Section 302 read with 34, IPC. The High Court has also sentenced the appellants to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 25,000/- each for the offence under Section 392 IPC, and in default of payment of fine, further rigorous imprisonment for a period of three months.
The High Court has also sentenced the appellants to undergo rigorous imprisonment for a period of seven years and to pay a fine of Rs. 10,000/- each for the offence under Section 420, IPC, and in default of payment of fine, further rigorous imprisonment for a period of three months. The High Court has also sentenced the appellants to undergo rigorous imprisonment for a period of two years and to pay a fine of Rs. 5,000/- each for the offence under Section 201, IPC, and in default of payment of fine, further rigorous imprisonment for a period of three months. However, all the sentences were directed to run concurrently.
As a corollary, it is then brought out in para 2.3 that:
Feeling aggrieved and dissatisfied with the impugned judgment and order passed by the High Court in reversing the judgment and order of acquittal and convicting the appellants for the aforesaid offences, the appellants-original accused have preferred the present appeals.
Briefly stated, the key point which is the backbone of this extremely laudable judgment in para 9 is this:
Now so far as the submission on behalf of the accused that in the present case the prosecution has failed to establish and prove the motive and therefore the accused deserves acquittal is concerned, it is true that the absence of proving the motive cannot be a ground to reject the prosecution case. It is also true and as held by this Court in the case of Suresh Chandra Bahri v. State of Bihar 1995 Supp (1) SCC 80 that if motive is proved that would supply a link in the chain of circumstantial evidence but the absence thereof cannot be a ground to reject the prosecution case. However, at the same time, as observed by this Court in the case of Babu (supra), absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused.
The relevant case laws cited in this same para 9 which further corroborates the same thing exactly as cited in this para are:
- State of U.P. v. Kishanpal (2008) 16 SCC 73 and
- Pannayar v. State of T.N. (2009) 9 SCC 152.
As anticipated, the Bench then rules in para 10 that:
Considering the aforesaid facts and circumstances of the case, the findings recorded by the learned trial Court, which were based on appreciation of the entire evidence on record cannot be said to be either perverse or contrary to the evidence on record and/or it cannot be said that the trial Court did not consider any material evidence on record. Trial Court was justified in recording the acquittal by observing that prosecution has failed to complete the entire chain of events.
Therefore, we are of the opinion that in the facts and circumstances of the case, the High Court is not justified in reversing the order of acquittal passed by the learned trial Court. Under the circumstances, the impugned judgment and order passed by the High Court cannot be sustained and the same deserves to be quashed and set aside.
Finally, it is then held in the last para 11 that:
In view of the above and for the reasons stated above, the present appeal succeeds. The impugned judgment and order dated 20.09.2016 passed by the High Court of Himachal Pradesh in Criminal Appeal No. 464 of 2012 is hereby quashed and set aside, and the judgment and order dated 15.06.2012 passed by the learned Additional Sessions Judge, Fast Track Court, Kullu, Himachal Pradesh in Sessions Trial No. 05 of 2011 is hereby restored. The accused-Appellants, namely, Anwar Ali son of Gama Ali and Sharif Mohammad son of Sampat Mohammad be set at liberty forthwith, if not required in any other case.
All said and done, it merits no reiteration that all the courts from the trial courts to the Supreme Court must always adhere to what the three-Judge Bench of Apex Court have laid down so clearly, cogently and convincingly in this latest, landmark and laudable judgment that absence of motive in a case depending on circumstantial evidence is a factor that weighs in favour of the accused. In this case too we have seen just like in many cases earlier how the Apex Court rightly vindicated what the trial Court held and overruled what the High Court held by ruling that the High Court is not justified in reversing the order of acquittal passed by the learned trial court! Absolutely right! There can be no denying or disputing it!
Sanjeev Sirohi, Advocate,
s/o Col BPS Sirohi, A 82, Defence Enclave,
Sardhana Road, Kankerkhera, Meerut – 250001
