20 July 2023 5:06 AM GMT
The Supreme Court on Monday upheld a judgment of the Uttarakhand High Court which dismissed an application filed by the CBI seeking leave to appeal under section 378 (3) of CrPC against order passed by the trial court acquitting three policemen who were charged of murder while patrolling, on the ground that the circumstances found do not constitute a complete chain as to indicate that in...
The Supreme Court on Monday upheld a judgment of the Uttarakhand High Court which dismissed an application filed by the CBI seeking leave to appeal under section 378 (3) of CrPC against order passed by the trial court acquitting three policemen who were charged of murder while patrolling, on the ground that the circumstances found do not constitute a complete chain as to indicate that in all human probability it were the accused persons who committed the crime.
The division bench of Justice B. V. Nagarathna and Justice Manoj Misra observed:
“The circumstance that the accused persons were required to patrol that area and had left the police station for that end on that fateful night is a circumstance which is not conclusive as to turn the tables on the accused, inasmuch as the patrolling area covered two villages. It may be possible that the accused arrived at the spot late, when the incident had already taken place, and to chase away the miscreants, fired shots from their service rifles………….the circumstances ought to have formed a chain so far complete as to indicate that in all human probability it were the persons facing trial and none else who committed the crime.”
In the night of June 24, 1987, one Raj Kumar Baliyan (the deceased) was killed. An FIR was lodged by PW-6 alleging that while he and PW-3, on one Scooter, and 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.
It was alleged that one of the policemen flashed a torch light on them due to which 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. However, PW-3 and PW-6 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.
Another version of the incident was lodged at the instance of one Mahindra Singh on June 25, 1987 which states that May 16, 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 June 24, 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. 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. As a result, there was retaliatory fire by the police and the villagers. One of the criminals (deceased) was chased and nabbed by the villagers. Later, several villagers arrived and informed that the person caught is one Raj Kumar, Advocate. Thereafter, Raj Kumar was taken to the hospital.
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. After investigation, CBI submitted a chargesheet against the accused persons (the respondents) under Section 302 read with Section 34 of IPC.
After analysing the entire prosecution evidence in detail, the trial court vide judgment and order of acquittal dated December 13, 2011 concluded that the prosecution had failed to prove that those three policemen in uniform, who attacked the deceased, were the persons facing trial.
The Uttarakhand High Court vide judgment and order dated July 26, 2012 allowed the delay condonation application but rejected the application filed by the State seeking leave to appeal and dismissed the appeal accordingly.
While rejecting the application seeking leave to appeal, the High Court noticed that the prosecution case rested on three eye-witnesses’ accounts. Eye-witnesses PW-3 and PW-6 could not identify the policemen and in so far as PW-15 was concerned, he was found not reliable. Moreover, the medical evidence indicated that the deceased died due to gun-shot injuries fired from a .12 bore weapon and not a rifle, which was with the accused, hence, granting leave to appeal to formally hear the appeal would be an exercise in futility.
The Additional Solicitor General (ASG), Vikramjit Banerjee appearing for the appellants submitted that this is a case where it was proved beyond doubt that the deceased was shot by persons who were wearing police uniform.
It was further submitted that the presence of the three policemen (accused) at the scene of crime was confirmed not only by eye witnesses but also by circumstances including the fact that certain empty cartridges recovered from the spot were fired from their service rifles.
Thus, it was contended that not only the presence of accused persons was proved but another version of the incident, depicting police action, confirmed that death was a consequence of police action. Therefore, it was submitted that the burden was heavy on the accused to explain these incriminating circumstances and in absence, an adverse inference ought to have been drawn against the accused persons.
On the other hand, Anil K. Sharma, the Counsel appearing for the respondents (accused) submitted that, firstly, PW-3 and PW-5, who were travelling with the deceased, have not been able to identify the accused as those who were involved in the killing of the deceased; and, secondly, the deceased died of a gun-shot wound which could be ascribed to a .12 bore weapon, not a rifle which was with the accused.
It was further submitted that some of the empty cartridges lifted from the spot did not match with the rifles of the three accused thereby giving rise to a possibility that someone else was also present with a rifle and had used it.
The Counsel argued that PW-15 has been found not reliable and in respect of the incriminating circumstances such as the presence of the accused persons at the spot, use of service rifle to fire shots and killing of the deceased by policemen, they by themselves are insufficient to constitute a chain so far complete as to indicate that in all human probability it were the accused and no one else who committed the crime.
At the outset, the Apex Court noted that the judgment and order of the 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 the High Court, particularly, when there is relevant record to assess the merit of the prosecution case.
“More so, because the incident is of the year 1987 and the appeal has remained pending since more than a decade. In such circumstances, if we remit the matter to the High Court only to rewrite the judgment, it would be travesty of justice,” the Court said.
The Court further observed that neither PW-3 nor PW-6 could identify any of the three accused and they did not depose that the three policemen involved in the crime were those who were facing trial.
The Court noted the following circumstances which went in favour of the accused:
PW15’s presence was not confirmed by PW3 and PW6 and his conduct of remaining silent for over a week creates a lingering doubt as to whether he was a witness set up on advise, particularly, when in his first statement was not to the investigating agency but made on an affidavit prepared by a lawyer, who simultaneously prepared three affidavits identically worded.
The deceased did not die of a rifle bullet injury. Rather, he died from a .12 bore gunshot which could not be ascribed to rifles issued to the accused persons.
The accused persons were not identified either by PW-3 or PW-6.
The continued presence of the accused at the spot is a circumstance which goes in favour of the accused, being a conduct that belies a guilty mind.
According to the prosecution’s own case, the accused persons, three in number, had a rifle each with 50 rounds. Admittedly, some of the empty cartridges found at the spot, as per the ballistic expert report, were not fired from the rifle issued to the accused. This is indicative of presence of some other rifle also. Whose rifle it was, the prosecution evidence is silent.
The Court noted:
“Here the circumstances found proved do not constitute a chain so far complete as to indicate that in all human probability it were the accused persons and no one else who committed the crime. In such a situation, there was no option for the trial court but to extend the benefit of doubt to the accused.”
The Court further noted that the ASG could not point out that the Trial Court ignored or misread any relevant evidence.
“For all the reasons as stated above, we do not find it to be a fit case to interfere with the order passed by the High Court and remit the matter only for the High Court to rewrite the judgment as the same, in our view, would be an exercise in futility,” the Court observed.
Thus, the Court dismissed the appeal.
Case Title: Central Bureau of Investigation v. Shyam Bihari & Ors.
Citation : 2023 LiveLaw (SC) 542
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